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.