Dispute Resolution Without Borders
First Monday

Dispute Resolution Without Borders: Some Implications for the Emergence of Law in Cyberspace by Ethan Katsh



Contents

Introduction
A brief history of online dispute resolution
ODR and cyber rule making
Conclusion

 


 

Introduction

“What, then, is this law business about? It is about the fact that our society is honeycombed with disputes. Disputes actual and potential, disputes to be settled and disputes to be prevented; both appealing to law, both making up the business of law....This doing something about disputes, this doing of it reasonably, is the business of law.” — Karl Llewellyn [1]

The upcoming tenth anniversary of David Johnson’s and David Post’s seminal article, “Law and Borders — The Rise of Law in Cyberspace” [2], coincides with the tenth anniversary of another highly significant, albeit less publicized, cyberlaw event. In May, 1996, the same month that “Law and Borders” appeared in the Stanford Law Review and First Monday, Johnson was hosting the first conference on online dispute resolution (ODR), a meeting concerned not with making rules for cyberspace but for building processes to settle disputes occurring in cyberspace. The meeting marked the beginning of the online dispute resolution (ODR) movement, a movement that has grown from a single dispute handled by an entity called the Virtual Magistrate to several million disputes handled by SquareTrade, an Internet start–up that has become the largest dispute resolution provider in the world.

The Johnson and Post article launched a rather heated and still ongoing debate about the making of rules for cyberspace. At the risk of oversimplification, one side in this debate holds that territorial states are the appropriate source for any rules related to activities in cyberspace [3]. The other, articulated by Johnson and Post in their article, argues that there are sufficient reasons for considering cyberspace to be a separate place which can and should make its own rules. At a more basic level, the question being asked is what impact the new technologies are having on the authority and power of states to make and enforce law. And at perhaps an even more basic level, the focus is on issues such as what law is and how it emerges and evolves, issues that have a long history and, perhaps surprisingly, still have uncertain answers.

During the past ten years, as existing legal institutions have been endeavoring to define their role and understand whether their capabilities for imposing legal authority have changed, the need to promote order, build trust, protect rights and reduce risk online has only grown larger. While court decisions, legislation and regulatory activities involving the Internet are frequently in the news, the theme of this article is that the most effective mechanisms for responding to those needs of users just mentioned have been non–governmental. These have involved providing safety through technological means, using agreements that specify responsibilities and that can be enforced, and embedding online dispute resolution in ecommerce and other online ventures. This essay focuses on the last of these.

Cyberspace is an active place, a creative place and, for some, a lucrative place. It is not, however, a harmonious place.

Cyberspace is an active place, a creative place and, for some, a lucrative place. It is not, however, a harmonious place. The more relationships that are formed online and the more transactions that take place, the more disputes are likely to occur. The broadening range of online activities, their increasing complexity, and the expanding information processing capabilities of computers linked to the network accelerates the pace of change [4]. This contributes to an environment that is valuable but not stable, and where, as a result, there is a need for systems that can manage change. With existing legal institutions either slow to respond, ineffective, costly or challenged by jurisdictional issues, efforts have been made to design dispute resolution systems that employ resources and tools that can be found online. This, as will be explained below, has been a successful effort, albeit one proceeding at a moderate pace, since it has depended on support from the private sector and on the development of software that must be targeted to particular kinds of problems. It is also an effort that is relevant to the “Law and Borders” controversy since ODR is a process out of which legal needs might be identified and from which some rules and even some rule making processes for cyberspace may emerge.

During the period when scholars have been debating whether states will cede any of their sovereign or legal authority to some kind of rule making entity in cyberspace, states have, with relatively little notice, been quite willing to give up responsibility for providing the dispute resolution processes that may be needed by their citizens. Rather than being threatened by this development or considering it to be an attack on their sovereignty, states have actually encouraged the privatization of dispute resolution, viewing this development not as a problem but as a solution to a problem. The problem in need of a solution is the rise of disputes in cyberspace, a development for which, except in exceptional and often highly publicized, cases, traditional legal institutions are of little value.

For states, what might be seen as the abdication of responsibility for providing dispute resolution opportunities has been neither troubling nor controversial because a similar privatizing trend has been occurring offline for several decades. Alternative dispute resolution (ADR) offline, in the form of mediation and arbitration, has grown in use during the last thirty years since it is generally less costly, quicker, less formal, and more flexible than litigation. ADR has proven to be attractive to disputants because of how it differs from litigation, desirable for government as a cost–saving strategy, and can be portrayed not as an abdication of responsibility but as a process freely chosen by users in lieu of the still available, albeit undesired, option of litigation. All of this has resulted in the phenomenon of the “vanishing trial”, a situation, for example, in which the percentage of cases going to trial in the federal courts declined from 11.5 percent in 1962 to 1.8 percent in 2002 [5].

What states have not recognized, as ODR has begun to take hold and to assume the position of the primary form of dispute resolution online, is that processes that migrate to cyberspace often change as they discover and begin to employ new capabilities for communicating and processing information. The privatization of dispute resolution online, therefore, may not take the same route and end up in the same place as dispute resolution has offline. Our experience with ODR has been that the first attempts to establish online models of dispute resolution tended to mimic offline approaches but subsequent efforts, one of which is described below, have begun to move ODR processes away from traditional models. In the move from offline to online, one can expect to see unintended consequences, in this case the possible development of new forms of dispute resolution, or changes in the old forms, or new expectations about courts, or even the emergence of new modes of cyberspace–based rule making processes.

Many assume that law emerges first with rules and, at some later time, institutions are set up to enforce or interpret the rules. The experience of online dispute resolution supports a more complicated sequence, one, as will be described later, in which the question “where does law come from” has multiple answers. There are certainly instances in which the making of rules, the interpretation of rules and the application and enforcement of rules will occur in that order. In other instances, however, a starting point may be attempts to resolve problems that occur in the absence of rules, an activity that may later lead to the development of new rules or, at times, to new ways of thinking about methods for shaping behavior and protecting rights. There are linkages between law and informal methods of social control and, as Robert Ellicson has written, “lawmakers who are unappreciative of the social conditions that foster informal cooperation are likely to create a world in which there is both more law and less order” [6]. Systems for social ordering, in other words, should be appropriate for the culture and community involved and the Internet, with a still developing culture and community, is likely to be a challenge for some time.

ODR is, to some extent, a way of compensating for the vacuum or slow movement in rule making. It is, in addition to endeavoring to resolve disputes, being employed to do some of the tasks we expect to come from law. For example, trust is often built by enacting and publicizing enforceable standards but it can also be achieved by providing assurances to parties in any relationship or transaction that they will have opportunities to resolve any problems that might arise. This is not to suggest that there is no need for authoritative, clear and even uniform rules, only that some of the same ends can be achieved through a variety of means. Nor is it to say that all strategies to pursue some end are equally effective. Indeed, the pressure for a rule making authority in cyberspace may be heightened as a result of inadequacies of some of these substitute methods.

 

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A brief history of online dispute resolution

Online dispute resolution (ODR) emerged not to displace or challenge an existing legal regime but to fill a vacuum where law’s authority was absent or inadequate. It began, rather simply, as a response to growing numbers of disputes arising out of online activities. In 1994, David Johnson wrote that

“As more people spend more time (and money) communicating over the global electronic networks, they will, inevitably, fight. Some of these disputes will concern subject matters unique to the new electronic terrain ... The meta–question posed by all these novel types of disputes will be an interesting one: Should the networks themselves evolve new and better ways to resolve the disputes that arise in connection with their use?” [7]

In 1994, of course, e–commerce was in a beginning phase, No one had heard of eBay, Amazon, or Google. Netscape, still called Mosaic, would not have its IPO until August, 1995. The National Science Foundation had only recently removed the ban on commercial activity on the Internet [8]. ICANN did not exist and few corporations were aware that domain names might have value. The first case of spam occurred in April, 1994 and the Federal Trade Commission brought its first Internet fraud case in 1994. People were already fighting on the Internet, most commonly in flamewars on listservs but also, and perhaps most famously, in virtual worlds, MOOs and MUDs [9]. In general, however, the range of online activity in 1994 was limited and the range of disputes as well.

By 1996, the landscape of disputing on the Internet had changed and many of the problems we are still grappling with today had begun to be of concern. In response, the National Center for Automated Information Research (NCAIR) organized the 1996 conference on online dispute resolution and provided funding for three ODR experiments [10]. The Virtual Magistrate project, conceived of by Johnson and several others, aimed at resolving disputes between Internet Service Providers and users [11]. The University of Massachusetts Online Ombuds Office hoped to facilitate dispute resolution on the Internet generally [12]. Finally, the University of Maryland proposed to see if ODR could be employed in family disputes where parents were located at a distance.

There was novelty to these efforts in that they handled conflicts originating in cyberspace or related to cyberspace. There was also novelty in that the network was used to allow a human third party to interact with the disputants in lieu of face–to–face meetings. Yet, these efforts essentially copied offline models of mediation and arbitration and, as a result, were as labor intensive as the offline versions. The Internet was employed to communicate over great distances but there was little understanding that computers with information processing and information management capabilities linked to the network could provide novel approaches for assisting in both dispute prevention and dispute resolution. As a result, all of these projects supported the paradigm of traditional alternative dispute resolution, namely two parties negotiating or a human third party mediating or arbitrating.

Starting in 1999, ODR began to take advantage of tools that did more than communicate online and, as a result, began to differentiate itself from its offline relatives. One of the principal catalysts for this change was a pilot project in online mediation that the University of Massachusetts Center for Information Technology and Dispute Resolution conducted for eBay [13]. eBay’s terms of service, both then and now, did not require it to provide resources in the event some dispute arose over a transaction. eBay had, quite creatively, set up a feedback rating system to allow parties to indicate whether a sale went smoothly, information that when aggregated was valuable in assessing whether a seller was trustworthy. Even with this resource, however, as eBay grew, disputes also continued to grow. The pilot project ended up involving two hundred complaints that were filed in a two–week period. Its success prompted eBay to select an Internet start–up, SquareTrade.com, to be its preferred dispute resolution provider.

Negotiations between buyers and sellers began to differ from classical negotiations because of the presence of a technological “fourth party” that mediated exchanges.

What SquareTrade found when it began was a universe of disputes for which real–world legal systems were irrelevant and existing models of online mediation and arbitration were inadequate. SquareTrade realized that if dispute resolution was to be effective in an environment of eBay’s scale, something other than e–mail and human mediators was needed. In order to handle large numbers of cases, technology needed to be a resource that provided at least some of the expertise of a trained third party. Fortunately, mediation is a process whose core is information management. The role of the mediator is to use his or her communications skills to guide angry parties to identify common interests, brainstorm options, evaluate solutions, and reach agreement. Software could do some of this, particularly for relatively simple disputes involving single transactions, the kinds of disputes occurring on eBay. SquareTrade thus created a secure Web site for each dispute, provided forms that provided users with options to choose from, and limited the use of free text complaining and positioning. Software, not a human third party, guided the manner in which parties expressed their position, reminded parties to respond in a suitable time frame, and even shaped the tone of exchanges. Negotiations between buyers and sellers began to differ from classical negotiations because of the presence of a technological “fourth party” that mediated exchanges. When such a process is not successful, a human mediator could be requested.

SquareTrade’s experience illustrates how new ways of processing information can manage behavior by providing an influential technological presence. Rule making is as intensive an informational process as dispute resolution and some of the ends we expect of rules, such as participation in some activity without risk, protection of rights, and a measure of stability, can also be achieved in new ways through the creation of an information presence, or many information presences. Cyberspace faces challenges in enacting generally applicable rules but, as occurred with ODR, some problems, at least, can be overcome by exploiting the information processing capabilities that are available now or are being created in cyberspace. Dispute prevention, for example, is contributed to by the presence of law but it can also be assisted by information alerts and providing feedback and reputation building software.

 

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ODR and cyber rule making

The late law professor Lon Fuller pointed out that “just as a society may have rules imposed on it from above, so it may also reach out for rules by a different kind of inarticulate collective presence” [14]. Laws, rules and standards begin life via informational processes that identify problems, values and desired standards of behavior. We have increasingly sophisticated sensors for generating feedback about problem areas and we are acquiring increasingly sophisticated informational tools for building responses to problems that are identified. As noted earlier, it is hard to predict exactly what the path is from ODR to mechanisms that embody group expectations but the short experience with ODR suggests that the old model in which rules came from courts and all other forms of dispute resolution are private, affecting the parties but not the public, was linked to information handling practices and information segregation practices that can be managed differently in cyberspace.

In the past, the content of disputes handled through mediation and arbitration was confidential. While confidentiality is still important, we now have capabilities for aggregating data about disputes and for separating data about the dispute from data about the disputants, something that opens up opportunities to understand better the risks of participating in some online context. Successful Web enterprises need not only to attract the attention and interest of potential users but to persuade parties to be willing to use their systems. The latter decision will be influenced by perceptions of trust and by calculations of how much risk there is to participating. If risk of losing something, whether it be money, privacy, reputation, or something else, is too high, the potential user will go somewhere else.

Consider, for example, two online entities that have recognized that law in its traditional sense is of very limited value in maintaining a certain standard of behavior but also are very aware that behavioral norms are needed to protect the enterprise. What the two sites, Wikipedia and Second Life, have in common is that the growth of the activities depends on user activity and contributions. If users experience a loss of trust or heightened risk, it will radically devalue the enterprise. These sites are like eBay in that they have unlimited growth potential because they are being built through collaboration and the creative contributions of users but, even more than with eBay, it is difficult to identify what law or whose law can respond to a particular problem. As a result, norm development is shaped more by technology than by rules imposed by the founders of the sites.

  1. Wikipedia — Wikipedia has been built with software that has made possible contributions by over 500,000 persons [15]. It is a product whose use and value will grow only if the information it contains can be trusted. This, of course, is difficult since anyone can change any entry at any time. As a result, Wikipedia has instituted a set of dispute resolution processes for challenges over facts [16], provided software to track any changes that are made, and enabled persons interested in a particular topic to be notified if a change occurs. Just as eBay needs users to trust in the people offering items for sale, Wikipedia needs users to trust in the accuracy of information. Software, in each context, can provide the consumer of goods or the consumer of information with an array of trust building tools, among them ODR.

    As I was completing this essay, Wikipedia was in the news because of a trust diminishing act by a user. Wikipedia was “vandalized” by a user who entered false information in an entry for journalist, John Seigenthaler Sr. [17] The false entry stated that Siegenthaler had died and, earlier in his life, had been involved in the Kennedy assassination. In response, Wikipedia changed its rules to require anyone wishing to begin a new topic to register. This is not a particularly creative response and is, in any event, unlikely to stop any vandals. Wikipedia needs to figure out how to automate a non–intrusive authentication process or, more simply, to publicize what is already widely understood, namely that at any point in time an entry may very well be false. In other words, authentication and judging the value of an entry can be placed in the hands of users, perhaps using tools for these purposes designed by Wikipedia. It has been suggested that “Wikipedia spamming” could be as automated as e–mail spamming, in which case the burden on individuals to authenticate entries might be too great. While the end of Wikipedia is a possible outcome of this scenario [18], it is equally possible that new means will be designed for building trust on sites such as Wikipedia. This might, for example, be an opportunity for attention to shift away from the state as a source of law and toward cyberspace as a source of law. I would think it likely that states would be happy in such a case to defer to a cyberspace legal regime.

  2. Second Life [19] — As distinct from an online game with winners and losers, Second Life is a type of large–scale application in which users build virtual societies by designing the objects and institutions that are present there. Trust in the stability of the world and confidence that expectations will be met when actions are taken is critically important. This is partly because users can exit whenever they wish and partly, and perhaps more importantly, because virtual artifacts that users create can have value. Users can, with tools the developers provide, create intellectual property of value that can be sold to other users. This will happen, however, only if mechanisms are in place that justify the investment of time and effort. Simply enacting rules may not be sufficient and the law of the state is largely irrelevant. In such a situation using information creatively may be more effective.

    Virtual worlds, have also been in the news recently since some users have figured out how to outsource the production of virtual items to countries where wages are low [20]. Outsourcing in a virtual world may be no more or less of a problem than it is in the physical world. The manner in which it is dealt with, however, may be different. It is not yet clear that any action at all needs to be taken but a virtual world has informational resources that can be directed to a problem and that are not as available in a physical context.

Yet, if one views law as an information processing system, opportunities to displace law through software should be apparent.

If one assumes that law can only emerge from a sovereign power, as rules imposed on individuals and groups, the relevance of how these sites deal with problems may be difficult to see. Yet, if one views law as an information processing system, opportunities to displace law through software should be apparent. Indeed, this is largely the theme of the expression “code is the law” [21]. The phrase embodies the idea that behavior can be constrained or liberated by code and that these constraints are an alternative to legal rules.

It can be expected that many activities in the future will be governed not by the law of the state but by processes in which trust and dispute prevention are software generated, where standards of behavior are embedded in code, and where dispute resolution processes are also guided by software. These alternatives to law will derive from new information processing and communications opportunities that are now becoming possible. Yet, communication combined with information processing also holds open an additional possibility. This is that the new media will not simply resolve disputes or deter disputes or shape behavior through code, but, in some instances at least, will enable laws and rules to emerge out of behaviors and activities.

Marc Galanter, one of our most distinguished law and society scholars, once observed that law

“usually works not by exercise of force but by information transfer, by communication of what’s expected, what forbidden, what allowable, what are the consequences of acting in certain ways. That is, law entails information about what the rules are, how they are applied, with what costs, consequences, etc. For example, when we speak of deterrence, we are talking about the effect of information about what the law is and how it is administered. Similarly, when we describe ‘bargaining in the shadow of the law’, we refer to regulation accomplished by the flow of information rather than directly by authoritative decision. Again, ‘legal socialization’ is accomplished by the transmission of information. In a vast number of instances the application of law is, so to speak, self administered — people regulate their conduct (and judge the conduct of others) on the basis of their knowledge about legal standards, possibilities and constraints” [22]

This is a valuable observation but one which is also somewhat anachronistic since every instance of the movement of information or the use of information that is cited is likely to become more complex as it is shaped in some way by information processing along the way. When Galanter wrote the above twenty years ago, he focused on the “flow of information” and ten years later Johnson and Post, quite understandably, did the same. Today, and even more in the future, how “people regulate their conduct (and judge the conduct of others)” will be both different and more complicated, as new capabilities for processing information create a new matrix of “legal standards, possibilities and constraints.”

Johnson and Post and their critics assumed that it is the communication of information across borders, in huge quantities and for varied purposes that threatens nation states. It is now clear that a networked environment is as much an information processing system as it is a communications system. ebay, Wikipedia, Second Life and any interactive Web site on the Internet is an information processing site and it is what the site does with information, more than how users communicate information, that defines its character and moves it further away from the physical environment. While the communication of data may remain more visible to users than the processing of data, it is the underlying software infrastructure that makes possible an online transaction, interaction or relationship, that shapes its nature and value, and that may, as it evolves over time, also clarify and generate the standards of behavior that in the past might have derived from law.

It may be too early to predict what kinds of novel ordering, trust enhancing and dispute resolution institutions will emerge in cyberspace but it is not too early to be confident that the need and demand for such institutions will continue to grow. It may be true, as one critic has written, that “[T]he possibilities for private legal ordering are not limitless” [23], but it is quite possible that information processing capabilities will expand the various models of private ordering and even, at times, allow public law models to emerge. Under such a scenario, rule making may emerge tentatively, and gradually over time, rather than with a single act of recognition. Rules may also emerge from shared spaces rather than sovereign spaces and from a concept of distributed authority [24] rather than a model of a supreme authority.

Harold Berman has written that that a legal system requires that there be a “belief in the power of certain words, put certain ways, to bring about certain effects denominated as legal. This kind of magic is necessary if law is to work” [25]. The label of magic is appropriate in the sense that we often accept the operation or authority of rules without questioning or understanding all the processes that contribute to a law being considered authoritative and legitimate. The details of the magic act, however, are exactly the elements in the operation of law that can be affected by new modes of information processing and communication, perhaps superficially at the beginning but maybe at a very deep level if one accepts Galanter’s view of how law operates.

Magic acts are processes in which what happens between the beginning and end of the act are not seen or understood by the observer or participant. Software, at least to a non–programmer, seems quite magical as pressing keys or clicking a mouse triggers some very complex series of processes. Bill Gates once stated something similar in noting that “[the] magic of software can eliminate ... complexity” [26]. With states still existing and with remarkable means for using the network to manipulate and track information, the emergence of some standards overseen by the state is still quite conceivable. At the same time, it is clear that we are acquiring increasingly powerful tools with which to design alternative online methods to build trust, protect investments, provide safe environments, and resolve disputes. Some have said that the future of the Internet is threatened if we do not develop collaborative and technological tools to try to prevent serious harm to the network [27]. We are, in all likelihood, in a period of change in which institutions as well as technology are changing and, in such a transition period, it would not be surprising if there were parallel attempts for achieving many of the goals of law, some employing offline and traditional legal methods and others, more novel, based in cyberspace.

 

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Conclusion

While law is struggling to impose order on an online environment that is complex and ever changing, new methods of dispute resolution have emerged that rely on information processing and that, in addition, provide a level of security and stability. Alternative dispute resolution in the physical world is an alternative to litigation but ODR in the online world is an alternative to law in a broader sense and is, along with resolving disputes, performing some public functions such as lowering the risk level of participating online. Mediation and arbitration are labor–intensive activities but the online versions include new options and, in a sense, have been reconfigured by exploiting the information processing capabilities of the digital environment. The ongoing history of ODR is a history of the building of an online civic institution and it is, therefore, an example of what might be involved as attempts are made to build other kinds of civic institutions online.

The state’s reach and authority, is being challenged not simply by geography and the movement of huge numbers of bits across borders but by the information processing engines that use these bits to build the complex online systems we interact with daily.

In the scenario I have been trying to describe, the state does not remove itself completely from prescribing laws for cyberspace but it is also not the driving force, and often not a significant force at all, behind the growth of an online legal regime. The state’s reach and authority, is being challenged not simply by geography and the movement of huge numbers of bits across borders but by the information processing engines that use these bits to build the complex online systems we interact with daily. In other words, while the cross–border flow of information may weaken the application of law for all the reasons Johnson and Post pointed out, information processing leads to ever increasing levels of online activity, to new kinds of online interactions, and to increasingly complex online relationships, all developments which raise questions about the efficacy of law and state generated rules.

“Legal scholars,” Paul Schiff Berman has written, “have an unfortunate tendency to assume that legal norms, once established simply take effect and constitute a legal regime” [28]. This is a period in which assumptions about the impact and effectiveness of state law are particularly perilous. Cyberspace, whether it is or is not looked upon as a place, has a different dynamic, one where events are driven both by data and by people. It is this new relationship between the human and the machine that is likely as well to shape the relationship between the state and virtual. End of article

 

About the author

Ethan Katsh is Professor of Legal Studies and Director of the Center for Information Technology and Dispute Resolution at the University of Massachusetts at Amherst. He is a graduate of the Yale Law School and has authored three books on law and technology, Law in a Digital World (Oxford University Press, 1995); The Electronic Media and the Transformation of Law (Oxford University Press, 1989); and, Online Dispute Resolution: Resolving Conflicts in Cyberspace (2001).
Web: http://www.odr.info
E–mail: Katsh [at] legal [dot] umass [dot] edu.

 

Acknowledgments

This article is a product of research supported by National Science Foundation award #0429297 “Process Technology for Achieving Government Online Dispute Resolution” see http://www.fastlane.nsf.gov/servlet/showaward?award=0429297.

 

Notes

1. Karl Llewellyn, The Bramble Bush (Dobbs Ferry, N.Y.: Oceana Publications, 1960), p. 2.

2. David R. Johnson and David Post, “Law And Borders — The Rise of Law in Cyberspace,” 48 Stan. L. Rev. 1367 (1996).

3. See, for example, Jack L. Goldsmith, “Against Cyberanarchy,” 65 U. Chi. L. Rev. 1199 (1998).

4. Ray Kurzweil, “The Law of Accelerating Returns,” http://www.kurzweilai.net/articles/art0134.html?printable=1.

5. Marc Galanter, “The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts,” Journal of Empirical Legal Studies, Vol. 1, No. 3 (Nov. 2004), at p. 495.

6. Robert Ellickson, Order Without Law, (1991), p. 286.

7. David R. Johnson, “Dispute Resolution in Cyberspace,” February 10, 1994, http://www.eff.org/legal/Arbitration/online_dispute_resolution_johnson.article.

8. Jay P. Kesan, and Rajiv C. Shah, “Fool Us Once Shame On You — Fool Us Twice Shame On Us: What We Can Learn From the Privatizations of the Internet Backbone Network and the Domain Name System,” 79 Wash. U. L.Q. 89 (2001), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=260834.

9. Julian Dibbell, “A Rape in Cyberspace,” Village Voice, December 23, 1993, http://www.juliandibbell.com/texts/bungle.html.

10. Papers from the conference are accessible at http://www.odr.info/ncair.

11. Robert Gellman, “A Brief History of the Virtual Magistrate Project: The Early Months” (1996), http://www.odr.info/ncair/gellman.htm.

12. Ethan Katsh, “The Online Ombuds Office: Adapting Dispute Resolution to Cyberspace” (1996), http://www.odr.info/ncair/katsh.htm.

13. Ethan Katsh. Janet Rifkin and Alan Gaitenby, “E–Commerce, E–Disputes, and E–Dispute Resolution: In the Shadow of ‘eBay Law’,” 15 Ohio St. J. on Disp. Resol. 705 (2000), http://www.umass.edu/cyber/katsh.pdf.

14. Lon Fuller, “Human Interaction and the Law,” In: Robert Paul Wolff, ed., The Rule of Law (1971).

15. http://en.wikipedia.org/wikistats/EN/ChartsWikipediaEN.htm.

16. http://en.wikipedia.org/wiki/Wikipedia:Resolving_disputes.

17. http://en.wikipedia.org/wiki/John_Seigenthaler_Sr..

18. http://blog.ericgoldman.org/archives/2005/12/wikipedia_will.htm.

19. http://www.secondlife.com.

20. David Barboza, “Boring Game? Hire a Player,” International Herald Tribune, December 9, 2005, p. 1.

21. The phrase originated with William J. Mitchell, City of Bits: Space, Place, and the Infobahn (Cambridge, Mass.: MIT Press, 1995), p. 111. See also Lawrence Lessig, Code and Other Laws of Cyberspace (1999), Ethan Katsh, “Software Worlds and the First Amendment: Virtual Doorkeepers in Cyberspace,” University of Chicago Legal Forum (1996) 335, 338. Joel Reidenberg, “Lex Informatica: The Formulation of Information Policy Rules Through Technology,” 76 Texas Law Review (1998): 553.

22. Marc Galanter, “The Legal Malaise: Or, Justice Observed,” 19 Law and Society Review 537, 545 (1985).

23. Jack L. Goldsmith, “Against Cyberanarchy,” 65 U. Chi. L. Rev. 1199, 1209 (1998).

24. Beth Simone Noveck, in a path–breaking article, writes that “This technology is enabling people to engage in complex, socially contextualized activities in ways not possible before. While it used to be that geography determined the boundaries of a group and the possibilities for collective action — I had to be near you to join you — now technology is revolutionizing our capacity for purposive collective action with geographically remote actors ... .New social and visual technologies are emerging to facilitate the work of groups. What was an ‘information revolution’ is becoming a social revolution. As a result, groups will increasingly be able to go beyond social capital building to lawmaking.” Beth Simone Noveck, “A Democracy of Groups,” First Monday (November, 2005) http://journals.uic.edu/fm/article/view/1289/1209.

25. Harold Berman, “The Background of the Western Legal Tradition in the Folklaw of the Peoples of Europe,” 45 U. Chi. L. Rev. 553, 563 (1978).

26. Bill Gates, “The Enduring Magic of Software,” Information Week, October 18, 2004 http://www.informationweek.com/story/showArticle.jhtml?articleID=49901115.

27. Jonathan Zittrain, “Without a Net,” Legal Affairs, January–February (2006), p. 31.

28. Paul Schiff Berman, “From International Law to Law and Globalization,” 43 Colum. J. Transnat’l L. 485, 498 (2005).

 


Editorial history

Paper received 13 January 2006; accepted 15 January 2006.


Copyright © 2006, First Monday.

Copyright © 2006, Ethan Katsh.

Dispute Resolution Without Borders: Some Implications for the Emergence of Law in Cyberspace
by Ethan Katsh
First Monday, Volume 11, Number 2 - 6 February 2006
http://firstmonday.org/ojs/index.php/fm/article/view/1313/1233





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