Global Legal Pluralism
I remember back in 2003, Anupam Chander and I both took part in a cyberlaw retreat on Cape Cod sponsored by Harvard Law School’s Berkman Center for Internet and Society. Most of the professors assembled at the retreat were concerned with how to “solve” the problems that local regulation of internet activity might pose. In contrast, Anupam Chander and I repeatedly made the case that this was not a problem to be solved, but an inevitable expression of cultural diversity. Further, we argued that there might even be some benefits that could accrue from such legal pluralism, properly managed.
We have been fellow travellers ever since, and I am very pleased to see Anupam’s project finally come to fruition in this lively and agile book. As befits a broadly synthetic work about the electronic silk road, Anupam stiches together an impressive array of examples that convincingly demonstrate the importance of the global trade in services. In addition, turning from the descriptive to the normative, he lays out principles that might undergird a governance regime for this cross-border activity that leaves open the possibility for multiple competing normative voices.
Anupam’s approach is one that is consonant with the conception of global legal pluralism I have been pursuing for over a decade, and so I have few objections to his account. Quite rightly, Anupam steers a useful middle ground on issues of so-called extraterritorial regulation. He neither says that local regulation should always trump all other possible normative authorities (as sovereigntist territorialists often do), nor does he call for a full universal harmonization scheme. Instead, he adopts a pithy aphorism: “harmonize where possible and glocalize where necessary.” The key here is that a decisionmaker in a cross-border dispute should always ask whether it is possible to defer to another legal regime in the interests of a harmonious interlocking transnational legal system. Even asking such a question can, over time, inculcate habits of mind that cause decision-makers to be restrained about reflexively applying their own law in all circumstances. At the same time, Anupam recognizes that there will be instances when such deference is impossible and local populations will feel the need to impose local norms on cross-border activity. In such cases, he asks global services companies to “glocalize”: customize their global services product to conform to the law of various localities.
My guess is that such an approach will be workable in many cases, and so Anupam’s argument is an advance. It is also usefully pluralist in that it leaves space for multiple communities—local international, and transnational—to assert normative authority. This is in marked contrast to an approach that seeks to elide normative difference and tries to impose a single authoritative set of norms. Thus, I fully embrace his project.
I do have two quibbles, however.
First, Anupam seems to discount potential costs associated with the “glocalization” process, whereby companies tailor their service to all the various local regulations in existence wherever they operate. Such tailoring may often be relatively easy, but it seems likely that glocalizing might sometimes not be feasible or might be so expensive that the company will simply choose not to serve certain populations (or not to enter into the global marketplace at all for fear of multiple local regulatory assertions). That might be o.k., I suppose, but I would have liked to have seen more argumentation regarding whether there are other rubrics we might use if a company claims that glocalizing is impractical, for whatever reason.
Second, I think Anupam’s treatment of judgment recognition misses an opportunity to show how jurisdictions might exercise restraint before reflexively foisting their norms on a cross-border dispute. Here, the interesting example is when a legal authority is asked to recognize a judgment issued elsewhere that runs counter to the norms of the recognizing community. Anupam treats this as simply a choice among norms. But we might think that the question of whether to recognize another jurisdiction’s judgment is qualitatively different from the decision of whether the recognizing authority would have issued the same judgment as an original matter. After all, the judgment recognition question implicates concerns of deference, comity, and inter-jurisdictional harmony that add important considerations of restraint. Of course, there may be some instances where a foreign judgment might be so beyond the pale that it would be counter to public policy to recognize it. But in many instances, recognition is not problematic. This is even true in cases implicating constitutional concerns.
Consider Telnikoff v. Matusevitch, a case decided by the Maryland Court of Appeals. This was a libel action between two British citizens concerning writings that appeared in a British newspaper. After a complicated sequence of proceedings in the United Kingdom, a jury ruled for the plaintiff and ordered damages. However, Matusevitch moved to Maryland and subsequently sought a declaratory order that the British libel judgment could not be enforced in the United States, pursuant to the First Amendment. The Maryland court ultimately ruled that, because British libel law violates the speech-protective First Amendment standards laid out by the U.S. Supreme Court in New York Times v. Sullivan and its progeny, the British judgment violated Maryland public policy and could not be enforced.
However, using a more pluralist framework might well lead to a different result because, when faced with an enforcement decision regarding a foreign judgment, courts should not necessarily assume that their own local public policies trump the dictates of the foreign judgment. Instead, courts must undertake a nuanced inquiry concerning whether the affiliations of the parties render the original judgment legitimate. Although the local policies of the forum country are not irrelevant, those policies should be weighed against the overall interest in creating an interlocking system of international adjudication.
In the Telnikoff case, there is in fact no reason to think the U.S. Constitution is necessarily implicated in an enforcement action. First, it is debatable whether the simple enforcement of a judgment creates the requisite state action to generate constitutional concerns. Second, with regard to interstate harmony, a refusal to enforce the British libel judgment effectively imposes US First Amendment norms on the UK. Such parochialism is cause for concern. Third, while it is true that constitutional norms could conceivably create sufficient public policy reasons to refuse to enforce a judgment, the libel dispute in Telnikoff did not in any way implicate US public policy because neither party had any particular affiliation with the United States at the time of the events at issue. Thus, even if US constitutional values or public policy considerations might sometimes require a court to refuse to enforce a judgment, there is no basis (at least using a pluralist frame) for a categorical rule preventing enforcement, and little reason to refuse to enforce a foreign judgment absent significant ties between the dispute and the United States. I think Anupam’s case for processes of deference would have been even stronger had he included these sorts of considerations more fully in his analysis.
Nevertheless, we should pause to celebrate what the book accomplishes by surfacing the inter-systemic dilemmas caused by cross-border services. And provision of such services is even more complicated than cross-border trade in goods because there may be less of a physical presence in the jurisdiction allegedly harmed by the service. All of which is to say that Anupam has done a great cross-border service himself both by highlighting these issues and by pointing towards a nuanced, pluralist set of mechanisms for navigating this new silk road of possibility and peril.
Paul Schiff Berman
Manatt/Ahn Professor of Law
The George Washington University Law School