Monthly Archives: January 2012

Parchment and Obligation

Daryl Levinson, Parchment and Politics: The Positive Puzzle of Constitutional Commitment, 124 Harv. L. Rev. 657 (2011).

Presidents of the United States do not unilaterally extend their term of office, jail all their opponents, or rule by decree. The Supreme Court does not (or at least does not usually) declare its favored candidate to be President. Congress does not abolish the Supreme Court or create an official religion. Why not?

In an important new article, Parchment and Politics: The Positive Puzzle of Constitutional Commitment, 124 Harv. L. Rev. 657 (2011), Daryl Levinson reminds us that these familiar facts about our world are deeply perplexing and that the usual explanations for them are manifestly inadequate. Continue reading "Parchment and Obligation"

Law and Borders, Revisited

Marketa Trimble, The Future of Cybertravel: Legal Implications of the Evasion of Geolocation, 22 Fordham Intell. Prop. Media & Ent. L.J, (forthcoming 2012), available on SSRN.

Fifteen years ago, David Post and David Johnson published what some still regard as the seminal paper of cyberlaw scholarship:  Law and Borders: The Rise of Law in Cyberspace.  Post and Johnson argued that because cyberspace was defined, in a way, by the very absence of territoriality, cyberspace should be governed by laws and lawmakers not tied in traditional ways to territorial states.  That paper provoked a reply, Against Cyberanarchy, by Jack Goldsmith, and those two positions – “cyberspace is different”; “no, it isn’t” — have pretty much defined the landscape of cyberlaw ever since.  Later scholars have had little choice but to explore the implications and details of staking out intermediate positions.  When and how does cyberspace differ, and what do we do about it?

Marketa Trimble’s article approaches this topic by revisiting a species of the territorial question that prompted Law and Borders.  How can and should the law address behavior online by people who are physically located in one place but who wish to create or manage online identities in other places?  Trimble calls this the challenge of “cybertravel,” a phenomenon that is hardly new but that has taken on renewed significance as Internet technologies (and governments) have caught up to the many ways in which cybertravelers can be in more than one place at a time. Continue reading "Law and Borders, Revisited"