23 May 1998
Source: http://www.wcu.edu/hypermail/cyberspace-law/0058.html
Thanks to Peter Swire

"Against Cyberanarchy"

Forthcoming, 65 University of Chicago Law Review (1998)

BY: JACK GOLDSMITH
University of Chicago Law School

DATE: November 1997

CONTACT: Prof. Jack Goldsmith
E-MAIL: MAILTO:jl-goldsmith@uchicago.edu
POSTAL: 1111 E. 60th Street, Chicago, Illinois, 60637
PHONE: (773) 702-3306
FAX: (773) 702-0730

LSN-REF: CYBERSPACE:APS98-107

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The Supreme Court's invalidation on First Amendment grounds
of the Communications Decency Act raises the more fundamental
question whether the state can regulate cyberspace
transactions at all. Several "regulation skeptics" have
argued that it cannot. They contend that national regulation
of cyberspace is infeasible and illegitimate, and they
conclude that national regulators should defer to the
self-regulatory efforts of cyberspace participants. This
article challenges these claims. The skeptics overstate the
differences between cyberspace transactions and other
transnational transactions. And they underestimate the
potential of traditional legal tools and technology to
resolve the multi-jurisdictional regulatory problems
implicated by cyberspace. The article argues that cyberspace
transactions are no less resistant to the tools of conflict
of laws, and do not inherently warrant any more deference by
national regulators, than other complex transnational
transactions. It then explains how cyberspace can be
grounded in real-space law in a way that both facilitates
self-regulation and reasonably accommodates oft-conflicting
national regulatory concerns.