Tamar Frankel

Boston University School of Law Working Paper 01-21


The subject is about the common law under stress of change. The common law has continuously confronted stressful change. Internet conflicts raise the same value issues with which we are familiar. . . The Internet environment poses unusual pressures on the common law system. It is a system that transcends boundaries and time as we never had before. By reducing significantly the cost of receiving and disseminating information the Internet has shifted benefits, costs, and disadvantages. The Internet touches almost all areas of life. To those who suggest that the common law has lost its vitality, Internet jurisprudence offers a powerful rebuttal. United States courts have demonstrated the viability and strength of the common law. Internet issues have also highlighted the common law's limitations, shown in part by the legislative initiatives in this area.

The questions are: First, are we witnessing the emergence of the "Law of the Internet" or "Cyberlaw?" I believe that we are not. But there are few exceptions, such as issues concerning domain names.. Second, how do the courts address Internet issues? I suggest that usually there is nothing new in their approach. They resort to precedents, and use somewhat different choices of analogies. Courts may err in how they view the Internet. While the technical aspects of the system - the code and protocols - are identical in all respects, the impact of the Internet on various aspects of our lives may differ greatly. A code-based rule may bring unacceptable consequences that must later be corrected. The paper contains a number of stories to illustrate these propositions.

Third, are there cases demonstrating the common law's limitation? I believe there are. These limitations appear, for example, in cases concerning domain names and trademarks. Fourth, under what conditions will Congress overrule the courts' decisions? Congress initiates legislation for a number of reasons. Among these reasons are the courts' decisions that have strayed away from the policies that power constituencies have agreed upon. Nonetheless, judicial decisions play a role in the legislation. They help narrow the issues that Congress will address and sometimes help to set the congressional agendas.

The sum and substance of this paper is in praise of common law and its interaction with legislation as an overall system of "muddling through." Law is evolving piecemeal, addressing particular conflicts, not always uniformly nor predictably. Specificity with respect to select issues. Generality to show overall direction and guide interpretations. This kind of lawmaking is for the risk-averse -- of which I am one. Piecemeal solutions reduce the risk of mistakes and the cost of correcting mistakes when they occur-as they are bound to occur. The price: higher learning costs and fewer clear, bright-line and predictable laws.

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Tamar Frankel Contact Information
Boston University School of Law
765 Commonwealth Ave
Boston, MA 02215
(617) 353-3773

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