AGAINST “AGAINST CYBERANARCHY”
negative spillover effects in other jurisdictions.”24
The problem with Exceptionalism, Goldsmith tells us, is that it is “in the grip of a nineteenth century territorialist conception of how ‘real space’ is regulated and how ‘real-space’ conflicts of law are resolved.” This outdated and discredited territorialist conception—“Hermetic Territo- rialism,”26 he calls it—involves a belief that there must be “a unique gov- erning law for all transnational activities,”27 a “single legitimate governing law for transborder activity based on discrete territorial contacts.”28 Her- metic territorialism directs us to identify one body of law applicable to Digitalbooks.com’s behavior, and to define the “discrete territorial con- tact” which is a necessary prerequisite to the application of local law to its conduct. 25
Hermetic territorialism, though it held sway for several hundred years, was repudiated as part of a “revolution[ ] [in] conflict of laws in the sec- ond half of [the 20th] century.”29 Many factors—including “[c]hanges in transportation, communication, and in the scope of corporate activity [leading] to an unprecedented increase in multijurisdictional activity”30— led directly to an “expansion of the permissible bases for territorial juris- diction.”31 The result is that in “modern times[,] a transaction can legiti- mately be regulated [not only] . . . by the jurisdiction where the transaction occurs”32 and “the jurisdictions where the parties burdened by the regula- tion are from,”33 but also by “the jurisdictions where significant effects of the transaction are felt.” 34
Under “current conceptions of territorial sovereignty,” a sovereign “is allowed to regulate extraterritorial acts that cause harmful local effects
Id. at 1205.
Id. at 1206.
Id. at 1208 (emphasis added).
Id. at 1206 (emphasis added).
Id. at 1208.
Id. at 1206 (noting that these “significant changes in the world” led to an “un-
precedented increase in multijurisdictional activity” and “put pressure on the rigid territo- rialist conception”).
31. Id. at 1207; see also Stein, supra note 15, at 1169 (“As people and transactions became more mobile, jurisdictional rules based solely on the current location of the de- fendant were strained. Courts increasingly had a need to assert authority over persons not currently within their borders, and improvements in communications and transportation rendered travel to a distant judicial forum less onerous than it once had been.”).
Against Cyberanarchy, supra note 2, at 1208.
Id. (emphasis added).