BERKELEY TECHNOLOGY LAW JOURNAL
thousand different directions.
To paraphrase Judge Whyte: carried to its “natural extreme,”91 applica- tion of the (settled) Effects Principle is not “workable.”92 Like Judge Whyte, I “cannot see any meaningful distinction . . . between what [Digi- talbooks.com does] and what every other [website does],”93 and subjecting all websites to dozens, or perhaps hundreds, of different and possibly con- flicting legal regimes “does not make sense.”94 Like Judge Whyte, I “do[ ] not find workable”95 a theory of prescriptive jurisdiction that would hold Digitalbooks.com (and all website operators) responsible for complying, simultaneously, with the laws of all jurisdictions worldwide. Like Judge Whyte, I think that, “carried to its natural extreme,”96 the Effects Principle leads to “unreasonable liability.” 97
If governments “deriv[e] their just powers from the consent of the governed,”98 how can Singapore, or England, legitimately exercise law- making power over Digitalbooks.com?
The Unexceptionalists are not unduly troubled by this question, be- cause they believe, apparently, that settled principles of international law have already resolved it: While consent may be a prerequisite for the le- gitimate exercise of private power, it is no longer a prerequisite for the legitimate exercise of governmental power.99 Thus, Goldsmith writes, it is
Religious Tech. Ctr., 907 F. Supp. at 1369.
Id. at 1372.
Id. at 1373.
Id. at 1372.
Id. at 1369.
THE DECLARATION OF INDEPENDENCE, pmbl. (U.S. 1776).
See Stein, supra note 15, at 1176 (“Unlike the law of sovereigns, the scope of. . .
private ordering is limited to persons who have consented to the particular rules in ques- tion.”) (emphasis added); Against Cyberanarchy, supra note 2, at 1216 (concluding that because there are many “[c]yberspace activities for which ex ante consent to a governing legal regime is either infeasible or unenforceable,” these activities “are not amenable to private ordering”) (emphasis added); id. at 1215 (“[I]t remains an open question how to generate consent across cyberspace networks.”); id. at 1216 (“[P]rivate legal ordering . . . has the potential to resolve many, but not all, of the challenges posed by multijurisdic- tional cyberspace activity.”) (emphasis added); id. (“Consent-based legal orders are lim- ited by a variety of national mandatory law restrictions.”); see also Netanel, supra note 35, at 410, 492-93 (acknowledging the argument that application of foreign law to Digi- talbooks.com’s website “belies the liberal democratic principle of ‘government by con-