BERKELEY TECHNOLOGY LAW JOURNAL
to environment 1, then X is true in environment 2. The argument, how- ever, is not quite as persuasive as it might appear at first glance.
Take, for instance, the Unexceptionalists’ reliance upon settled princi- ples of customary international law. Even accepting Professor Goldsmith’s assertion that these principles “are settled”—in particular, the “uncon- tested assumptions”47 that, at least in modern times, transactions “can le- gitimately be regulated by . . . the jurisdictions where significant effects of the transaction are felt,”48 and that “a nation’s right to control events within its territory and to protect its citizens permits it to regulate the local effects of extraterritorial acts”49—it is clear that this “modern view” of international jurisdiction is itself the product of profound changes in the world over the past century or so (as Goldsmith himself points out50).
These now-settled principles were, in other words, once themselves in conflict with then-settled principles. It was once “settled” law that a state cannot regulate extraterritorial acts, the “substantial local effects” of those acts notwithstanding, and that therefore Analogbooks’ activities could not “legitimately be regulated” in either Singapore or England. The Unexcep- tionalists of one hundred, or even fifty, years ago might have made an ar- gument very much like Goldsmith’s, arguing that rail transport, the tele- phone, or radio broadcasting, would (and should) have no effect on our analysis of jurisdictional problems. We can imagine the following collo- quy:
Scene: A New York street corner, circa 1900. Two law profes- sors, Professor E and Professor U, meet.
Professor E: “Have you noticed? This telegraph thing changes everything! I can step inside a Western Union office in New York and execute a contract in San Francisco instantaneously! Incredible, eh?”
Professor U: “Well, I suppose it is. But what of it?”
E: “What of it? Surely you jest. The world as we know it will never be the same. We’re going to need new principles of law to deal with this phenomenon. Our jurisdictional principles— especially the one that requires physical presence for the exer-
Id. at 1208.
Id. at 1239.
See supra notes 29-31.