Law and Society Approaches to Cyberspace

This is the introductory essay to an edited collection titled Law and Society Approaches to Cyberspace and published by Ashgate Publishing. Accordingly, the essay first considers what qualifies as a law and society approach to any particular subject. Then, I address questions about what it means to study cyberspace, surveying some of the academic literature on the subject and identifying three distinct waves of scholarship about the Internet since the mid 1990s. I also discuss some of the major theoretical fault lines that have emerged during this period. Finally, the essay summarizes each of the contributions to the volume, which includes work by Sherry Turkle, Richard Ross, Dan Hunter, Gunther Teubner, Paul Schiff Berman, James Boyle, Margaret Jane Radin, Lawrence Lessig, Jack L. Balkin, Jane C. Ginsburg, Jessica Litman, Julie E. Cohen, Anupam Chander, Jerry Kang, Jennifer L. Mnookin, and James Grimmelmann

Jurisgenerative Constitutionalism: Procedural Principles for Managing Global Legal Pluralism

Global Legal Pluralism recognizes the inevitability (and sometimes even the desirability) of multiple legal and quasi-legal systems purporting to regulate the same act or actor. However, the resulting pluralism—just as inevitably—creates conflicts among norms that are potentially intractable. Thus, legal systems must address how best to respond to the realities of pluralism. This inquiry has constitutional dimensions because it goes to the constitutive character of communities and their relationships with other communities, be they international, transnational, national, subnational, or epistemic. One response to pluralism is jurispathic: “kill off” all competing laws by declaring that one set of norms—and only one—shall win. This is a constitutional declaration founded solely on power or messianism, and I argue that it is both unsatisfying as a normative matter and doomed to failure as a descriptive one. Instead, this article offers principles that would undergird a more jurisgenerative constitutionalism, one that seeks to manage, without eliminating, the plural voices clamoring to be heard. These principles can be used to design procedural mechanisms, institutions, and discursive practices that better respond to the reality of a world of multiple competing voices. In addition, such principles may bring more such voices into the constitutional discourse, thereby creating at least the possibility that enemies can be turned into adversaries, resulting in more fruitful (and peaceful) constitutional interactions

Legal Jurisdiction and Virtual Social Life

Social lives are increasingly unmoored from physical location. 21st century developments in social media, virtual worlds, augmented reality, electronic financial transactions, drones, robotics, and artificial intelligence allow human beings to interact in more and more robust ways at a physical remove from their location. Meanwhile, the ubiquity of multinational corporations, global supply chains, and cloud-based data all mean that our lives are more likely to be affected by activity that is spatially distant. Virtual effects often replace direct territorial effects. Three important consequences flow from this ubiquitous technology-enabled, data-driven virtual global societal activity. First, the territorial location of data becomes increasingly arbitrary and substantively unimportant. Second, territorially based courts (or law enforcement authorities generally) will sometimes be less able to enforce their decisions because those decisions require cooperation from relevant actors in far-flung communities. Third, as a direct result of the first two problems, governmental and judicial authorities are increasingly turning to multinational corporate data intermediaries to carry out and enforce their orders because only those companies have sufficient global reach to make legal rulings effective. But deputizing these intermediaries to become enforcement agents, while logical and possibly effective, raises new problems regarding the scope of governmental authority and the distortions involved in privatizing law enforcement. Although scholars first began raising these issues at the dawn of the commercial internet era as far back as 1995, the jurisprudential solutions we see so far are still largely unsatisfying, both conceptually and practically. Indeed, as with many private international law problems that have bedeviled courts and commentators for hundreds of years, there may not be a fully satisfactory solution. Moreover, even if there were a single unifying theory for private international law in the Information Age, it’s not at all clear that everyone would agree on what that theory should be. Thus, as legal pluralists have long realized, there is never a stable ‘solution’ to the reality of legal pluralism. Instead, legal pluralism is an inevitable (and perhaps not even an undesirable) result of a world with multiple communities and multiple legal and quasi-legal systems. Yet, even if there is no single unifying theory that could put an end to legal conflicts, we can still survey the types of cases that are arising and analyze the efforts of courts and others to navigate the problems that arise from the increasing virtualization of social life. This Essay aims to do that, providing a series of real-life case studies that any consideration of 21st century conflict-of-laws jurisprudence must face

The Enduring Connections Between Law and Culture: Reviewing Lawrence Rosen, Law as Culture, and Oscar Chase, Law, Culture, and Ritual

In an era of globalization, culture is sometimes treated as a dirty word. For those who see the world as increasingly flat, culture can seem to be merely a retrograde imposition of local prerogative that stands in the way of progress. Likewise, those who seek greater harmonization of human rights norms, commercial trade rules, or other legal standards may view culture as simply a monkey wrench in the machinery of global consensus and cooperation. In such debates, culture is often conceptualized as fundamentally pre-modern, something they cling to, but that we have long since jettisoned.Two recent books - Law as Culture by Lawrence Rosen and Law, Culture, and Ritual by Oscar Chase - provide a welcome response to this anti-culture bias. Both works point to the enduring claims of culture as the necessary and inevitable mechanism by which human beings construct meaning out of reality. Indeed, the capacity for culture is seen as a crucial part of our very evolution as a species. Thus, culture is not simply a set of customs we can choose to put on or take off like clothing; it is woven into the fabric of our being. Accordingly, cosmopolitans no less than localists are using cultural categories, reflecting cultural assumptions, and betraying cultural presuppositions Moreover, as both books make clear, law and culture cannot be disentangled. From this perspective, we must not see law as simply an autonomous system of rules that regulates disputes. Law is instead constitutive of how members of a society envision themselves and their relations to each other. Because of the ongoing importance of culture, we should not be surprised that efforts to harmonize both substantive norms and procedural systems run into difficulty on the ground. This is not news to comparative lawyers, of course, given their consistent efforts to conceptualize and categorize differences among legal systems. Yet, even for them these books are likely to be useful, in that they offer a richly textured analysis of culture as the driving force behind this inevitable legal pluralism. And while neither book really tackles the ultimate questions of how best to design legal institutions, procedural mechanisms, or discursive practices to manage this pluralism, they do make it clear that assuming cultural considerations out of the equation is simply not an option. This insight alone makes these books a welcome addition to the legal literature

A Pluralist Approach to International Law

This Essay is a contribution to a recent symposium at Yale Law School asking whether there is a new New Haven School of International Law. The original New Haven School of International Law offered a significant, process-based, rejoinder to the realism and positivism that had dominated international relations theory in the United States since the close of World War II. Whereas international relations realists viewed international law as merely a product of state power relations, and positivists dismissed international law entirely because it lacked both sovereign commands and a rule of recognition, scholars of the New Haven School studied law as a social process of authoritative decision-making. Such a study necessarily expanded the state-focused perspective of both the realists and positivists by drawing attention to ongoing interactions among variously situated bureaucratic and institutional actors. Now, in the first decade of the 21st century, the gaze has widened still further, as international law scholars (and those studying law and globalization more generally) increasingly recognize that we inhabit a world of multiple normative communities, some of which impose their norms through officially sanctioned coercive force and formal legal processes, but many of which do not. These norms have varying degrees of impact, of course, but it has become clear that ignoring such normative assertions altogether as somehow not law is not a useful strategy. Accordingly, what we see emerging is an approach to international law drawn from legal pluralism. As such, this new international law scholarship owes a debt not only to Myers McDougal, Harold Lasswell, Michael Reisman and the other practitioners of the New Haven School, but to another Yale Law School professor whose name is rarely associated with international law: Robert Cover. This Essay discusses Cover\u27s work and its relationship to the New Haven School of International Law, while arguing that Cover\u27s emphasis on norm-generating communities - rather than nation-states - along with his celebration of jurisdictional redundancy provide a useful analytical framework for understanding the plural normative centers that are the focus of much current international law scholarship. Moreover, a pluralist perspective on international law provides a powerful critique to the latest incarnation of realism, now newly dressed up in the trappings of rational choice theory

From Legal Pluralism to Global Legal Pluralism

Legal pluralists have long recognized that societies consist of multiple overlapping normative communities. These communities are sometimes state-based but sometimes not, and they are sometimes formal, official, and governmental, but again sometimes they are not. Scholars studying interactions among these multiple communities have often used the term “legal pluralism” to describe the inevitable intermingling of these normative systems. In the past decade or so, a new application of pluralist insights has emerged in the international and transnational realm. This new legal pluralism research was born in the decades following the collapse of the bi-polar Cold War order in 1989. During this period, it became clear that a single-minded focus on state-to-state relations or universal overarching norms was inadequate to describe the reality of the emerging global legal system, with its web of jurisdictional assertions by state, international, and non-state normative communities. Legal pluralism provided a useful alternative framework because pluralism had always sought to identify hybrid legal spaces, where multiple normative systems occupied the same social field. And though pluralists had often focused on clashes within one geographical area, where formal bureaucracies encountered indigenous ethnic, tribal, institutional or religious norms, the pluralist framework proved highly adaptive to analysis of the hybrid legal spaces created by a different set of overlapping jurisdictional assertions (state v. state; state v. international body; state v. non-state entity) in the global arena. This book chapter summarizes and further refines the move from legal pluralism to global legal pluralism by discussing each component of the inquiry further: in what way is global legal pluralism “global”; in what way “legal”; and in what way “pluralist”? This analysis prompts investigation both of challenges to the global legal pluralist project as well as possible responses to those challenges

Conflict of Laws, Globalization, and Cosmopolitan Pluralism

This essay is a contribution to a symposium at the January 2005 annual meeting of the Association of American Law Schools Section on Conflict of Laws. More than ten years ago, German theorist Gunther Teubner called for the creation of an intersystemic conflicts law, derived not just from collisions between the distinct nation-states of private international law, but from what he described as conflicts between autonomous social subsystems. Since then, the web of intersystemic lawmaking Teubner described has only grown more complex. The collision of these multiple legal and quasi-legal normative systems requires, as Teubner suggested, a broader approach to conflict of laws, one that includes scholars from other disciplines as well as legal scholars focusing on areas beyond conflicts. Moreover, we need to think of conflict of laws not just as a series of legal puzzles, such as whether jurisdiction is appropriate under x circumstances, or how a particular choice-of-law problem should be resolved, or under what conditions a court should recognize the normative judgment of another community. Conflicts is potentially a broader topic than that, engaging interdisciplinary scholars concerned with citizenship, community affiliation, and the social construction of place, and interacting with legal scholars studying so-called public international law, trade law, and non-state law-making and norm-creation.For the past several years, I have been exploring what it might mean to adopt this sort of broad conflicts perspective. In this brief essay, I seek to summarize my thoughts so far and point the way towards future scholarship

A Pluralist Approach to International Law

This Essay is a contribution to a recent symposium at Yale Law School asking whether there is a new New Haven School of International Law. The original New Haven School of International Law offered a significant, process-based, rejoinder to the realism and positivism that had dominated international relations theory in the United States since the close of World War II. Whereas international relations realists viewed international law as merely a product of state power relations, and positivists dismissed international law entirely because it lacked both sovereign commands and a rule of recognition, scholars of the New Haven School studied law as a social process of authoritative decision-making. Such a study necessarily expanded the state-focused perspective of both the realists and positivists by drawing attention to ongoing interactions among variously situated bureaucratic and institutional actors. Now, in the first decade of the 21st century, the gaze has widened still further, as international law scholars (and those studying law and globalization more generally) increasingly recognize that we inhabit a world of multiple normative communities, some of which impose their norms through officially sanctioned coercive force and formal legal processes, but many of which do not. These norms have varying degrees of impact, of course, but it has become clear that ignoring such normative assertions altogether as somehow not law is not a useful strategy. Accordingly, what we see emerging is an approach to international law drawn from legal pluralism. As such, this new international law scholarship owes a debt not only to Myers McDougal, Harold Lasswell, Michael Reisman and the other practitioners of the New Haven School, but to another Yale Law School professor whose name is rarely associated with international law: Robert Cover. This Essay discusses Cover\u27s work and its relationship to the New Haven School of International Law, while arguing that Cover\u27s emphasis on norm-generating communities - rather than nation-states - along with his celebration of jurisdictional redundancy provide a useful analytical framework for understanding the plural normative centers that are the focus of much current international law scholarship. Moreover, a pluralist perspective on international law provides a powerful critique to the latest incarnation of realism, now newly dressed up in the trappings of rational choice theory