Teaching Internet Jurisdiction Issues in the First-Year Civil Procedure Course

Paul Schiff Berman
University of Connecticut School of Law

 

The emergence of a global network of interconnected computers able to access, store, and transmit vast amounts of information in digital form has already altered our cultural landscape and, in the decades to come, may ultimately transform many of our assumptions about communication, knowledge, invention, information, sovereignty, and community. Inevitably, these tremendous cultural changes bring with them new legal challenges. And the challenges are not only problems of applying law to a new technology. Cyberlaw issues also implicate fundamental questions about what law is, how it is formed, and its relation to the culture as it changes.

In the context of Civil Procedure, it is clear that the increasing globalization of communication, travel, and trade, and in particular the rise of the Internet, have forced judges and legal scholars to "adapt" traditional doctrines regarding adjudicatory jurisdiction to the new economic and social environment. Thus, courts and commentators have asked such questions as: if a person posts content online that is legal where posted but illegal in some place where it is viewed, can that person be subject to suit in the far-off location? And how should the International Shoe "minimum contacts" test account for online contacts?

Although many Civil Procedure professors have begun to incorporate such cyberspace issues into their courses, I believe it is inadequate simply to mention a couple of cases that apply International Shoe to online activity (as most casebooks thus far have been content to do). Rather, I believe that studying cyberspace jurisdictional issues offers us an opportunity to encourage students to think more deeply about the nature of legal jurisdiction itself. Through the lens of internet jurisdiction issues, students may come to understand that conceptions about legal jurisdiction are more than simply ideas about the appropriate boundaries for state regulation or the efficient allocation of governing authority. More broadly, jurisdiction is the locus for debates about community definition, sovereignty, and legitimacy. In addition, the idea of legal jurisdiction both reflects and reinforces social conceptions of space, distance, and identity.

Accordingly, I will discuss the more comprehensive way in which I incorporate several internet jurisdiction cases into my first-year Civil Procedure course. I teach these cases not simply as an add-on to the discussion of personal jurisdiction, but as a way of interrogating and evaluating the very nature of jurisdiction and its associated rules. I will offer specific examples of how such a discussion can be conducted, using cases from U.S. courts, including Inset Systems, Inc. v. Instruction Set, Zippo Manufacturing Co. v. Zippo Dot Com, Inc. , and Bancroft & Masters Inc. v. Augusta National Inc. , as well as international cases such as Yahoo! Inc. v. La Ligue Contre Le Racisme Et L'Antisemitisme and Citron v. Zündel. I will also discuss possible ways of incorporating materials drawn from political science, anthropology, and cultural studies that force us to question both whether nation-states (or states, within the U.S.) should be the only relevant jurisdictional entities and whether strict territorial notions of jurisdiction actually fit people's lived experience of boundaries and community definition.