Wednesday, April 7, 2010

The (Overstated?) Problem with Transnational Jurisdiction

From Akhil Amar's "Con Law" lecture, which I audited my freshman year, I was already familiar in passing with the prerequisite of judiciability, but not with the internal distinction between personal and subject-matter or territorial jurisdiction. From the readings alone, I couldn't get a sense of whether the scope of personal jurisdiction has been expanded in other countries like it has in the United States, where "long arm" statutes may confer jurisdiction on a state court even if the defendant is located outside that state. The only condition that needs to be satisfied before long arm jurisdiction can take effect--and precisely what is being called into question, now that the Internet has blown up into a hive for business transactions and criminal activity alike--is that the defendant have "minimum contacts" in the forum state.

Even when a paywall limits access to subscribers only (as with the defamatory Barron's article that was the basis of Dow Jones v. Gutnick), or when the host site is so obscure as to preclude notice far from its physical servers, it is generally the case that any material uploaded to the Internet is capable of being viewed by a worldwide readership. This, in itself, should be grounds enough for a reevaluation of what it means for a potential defendant to have "contacts" in another locale; in theory, whatever he publishes online could be downloaded by--and thus constitute contact with--an associate of the plaintiff, no matter where she lives or works out of.  

Because the Internet has enabled communication to transcend geographical boundaries, the purpose of personal jurisdiction should be called into question and brought up to date accordingly. One of its original functions was to prevent instances where the defendant would be hard-pressed to show up in a distant court, though tele-conferencing might provide a fix to that logistical problem (assuming it is possible to waive the 6th Amendment's stated right to confront one's accusers).  

The more significant reason why the idea of personal jurisdiction shouldn't be done away with is that it provides a check against double jeopardy, the potential result of multiple prosecutions. That, yes, may be an unfavorable byproduct of allowing for transnational jurisdiction, but I think that procedural concern is outweighed by the intuitive absurdity of letting perpetrators of online wrongdoing evade punishment altogether, just because there's a loophole with respect to personal jurisdiction. In order to close off this sieve of impunity, which virtual villains have managed to fall through, there ought to be a flexible understanding across judicial systems in different states (and countries, even!), as to striking the right balance between respecting jurisdiction and redressing torts.

1 comment:

  1. Great post, Ben. Is one solution to the double jeopardy problem to make evidence of a prior judgment rendered in a different jurisdiction an absolute defense in any subsequent proceeding?

    ReplyDelete

Note: Only a member of this blog may post a comment.