Academic journal article Defense Counsel Journal

Reviewing the Law Reviews

Academic journal article Defense Counsel Journal

Reviewing the Law Reviews

Article excerpt

Law Review Highlights:

Jurisdiction and the Internet

The pervasiveness of the Internet in daily life has challenged traditional views of considering jurisdictional issues in legal matters. Concepts of territorial borders have changed within the context of the World Wide Web. The question courts are wrestling with is how those changes effect determinations of jurisdiction when looking at minimum contacts and forum states. There is still no uniform determination among nations or even circuits within the U.S. on how best to make determinations of jurisdiction when dealing with injury on the Internet. Some courts have used settled standards to rule on jurisdictional issues, while others have held that the Internet provides a unique set of considerations that take it outside the traditional rules for deciding jurisdiction. Several articles in this bibliography analyze the issues of jurisdiction and the Internet.

In his article, You Can't Always' Use the Zippo Code." The Fallacy of a Uniform Theory of Internet Personal Jurisdiction, (1) Dennis Yokoyama examines the current state of Internet jurisdiction jurisprudence. Yokoyama maintains that principles governing jurisdiction on the Internet should continue to follow the traditional model of personal jurisdiction, rather than separating Internet jurisdiction from those examples. He does this by first looking at decisions that were on the forefront of Internet personal jurisdiction that spawned a number of conflicting judicial decisions and commentary. The article also considers United States Supreme Court cases that articulate the traditional principles governing general and specific jurisdiction before contrasting those ideals with cases regarding Internet jurisdiction specifically. While Yokoyama believes that trying to state a uniform test encompassing the entirety of the Internet is not possible, he attempts to provide a framework for evaluating Internet jurisdiction issues that will be practical and effective.

A second article, Caveat E-Emptor: Solutions to the Jurisdictional Problem of Internet Injury (2) by John J. Schulze addresses jurisdictional issues generally raised in dealing with the Internet and proposes solutions for dealing with those problems. He examines three current jurisdictional theories: "totality of contacts" theory, "effects" test, "deliberate and continuous dissemination" approach. Schulze considers jurisdiction in an international law context, not only looking at the approaches of individual countries, but also reviewing the EU E-Commerce Directive and its approach to Internet culpability. Additionally, the article looks at forum selection clauses and their impact on cyber-jurisdiction issues. Finally, the author attempts to develop possible solutions for international jurisdiction issues that are raised by the article.

Jurisdiction in Internet Libel Cases (3) by Eric Barendt looks at jurisdiction specifically with respect to the tort of libel. The article starts with an analysis of the Australian case Dow Jones & Co. v. Gutnik (4) where the Court found that there should not be special rules adopted for the Internet because the Internet does not necessarily provide for a wider dissemination of information than other global broadcasting technologies. This is a different conclusion than many U.S. courts have reached. Courts in the U.S. often focus on whether or not the defendant had "targeted" the communication to readers in the forum state through use of the Internet. The author suggests that while there is no real reason to treat the Internet as presenting a completely unique set of circumstances when determining jurisdiction, courts should also be willing to recognize that there are some unique features to communication over the Internet. Courts should, therefore, exercise more discretion when it is clear that the defendant could not foresee harm to a plaintiff in a foreign forum.

The following list is a selective bibliography of current law review literature thought to be of interest to civil defense counsel. …

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