AGAINST “AGAINST CYBERANARCHY”
cise of ‘jurisdiction to prescribe’—must yield to this new con- text, no?”
U: “Not at all. Transactions completed by telegraph are function- ally identical to those completed by mail or by smoke signal; they all involve real people in one territorial jurisdiction either (i) transacting with real people in other territorial jurisdictions or (ii) engaging in activity in one jurisdiction that causes real-world effects in another territorial jurisdiction. It is settled law that the people of California cannot reach people and transactions occur- ring outside of its borders. Why would we need to adjust those principles now?”
Life, Kierkegaard said, must be lived forwards, but it can only be un- derstood backwards.51 Looking backwards, of course, we know that events proved those Unexceptionalists wrong. Though it was surely difficult to see at the time, the world was changing profoundly, and settled under- standings were becoming unsettled because of that change. How would Professors U and E have known that this unsettling was occurring before their very eyes? How would we know if the world was again changing, unsettling our settled understandings? In retrospect, it may be easy to identify such seismic shifts in the legal landscape, phase transitions be- tween different ordered states of an entire domain of legal thought and practice. But in prospect, that may not be so easy.
The world, sometimes, does that—changes profoundly. When it does, settled understandings sometimes change with it. Unless we think that for some reason this cannot happen again, questions about the legitimate scope of a nation’s jurisdictional reach cannot rest on the notion that those questions are somehow already, and forever, “settled.”
That the world can change so as to unsettle settled principles does not, of course, mean that it has done so in ways that are relevant to the ques- tions at hand. The Unexceptionalists say that it has not; activity in cyber- space is “functionally identical to transnational activity mediated by other means, such as mail or telephone or smoke signal.” 52
What could that possibly mean? It does not take a great deal of insight
51. See 1 SOREN KIERKEGAARD'S JOURNALS AND PAPERS 450 (Howard V. Hong & Edna Hong eds., 1967). 52. Against Cyberanarchy, supra note 2, at 1240 (emphasis added).