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.
Paul S. Berman,
Legal Jurisdiction and Virtual Social Life,
Cath. U. J. L. & Tech
Available at: https://scholarship.law.edu/jlt/vol27/iss2/5