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.
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
Presentation and Publication Information:
To be announced.