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2002]

AGAINST “AGAINST CYBERANARCHY”

5

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 This outdated and discredited territorialist conception—“Hermetic Territo- rialism,”26 he calls it—involves a belief that there must be “a unique gov- erning law for all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”30led 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

  • 24.

    Id.

  • 25.

    Id. at 1205.

  • 26.

    Id. at 1206.

  • 27.

    Id. at 1208 (emphasis added).

  • 28.

    Id. at 1206 (emphasis added).

  • 29.

    Id. at 1208.

  • 30.

    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.”).

  • 32.

    Against Cyberanarchy, supra note 2, at 1208.

  • 33.

    Id.

  • 34.

    Id. (emphasis added).

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