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The Law and Economics of Internet Norms

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  • Lemley, Mark
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    Abstract

    Private ordering is in vogue in legal scholarship. Nowhere is this clearer than on the Internet. Legal scholars who study the Internet talk freely about new forms of governance tailored to the specific needs of the Net. Only rarely are these "governance" models ones that involve a significant role for government as classically envisioned. Some scholars see international law, with its emphasis on political and moral suasion rather than legal authority, as the appropriate way to govern what is after all an international phenomenon. Many others, though, look to contracts as the preferred model for governing cyberspace. These models generally rely in the final analysis on a supreme legal authority to establish the initial property entitlements and enforce the contracts that govern the Net. The property-contract model is perhaps better thought of, then, as quasi-private ordering. But the common goal of these quasi-private ordering advocates is to decentralize governance and return control to the people, or at least the people who write the contracts. Contemporaneous with the rise of contracts as a mechanism for Internet governance, another group of legal scholars has explored the existence of what might be thought of as true private ordering: the social relationships that individuals and groups form that operate outside of the law. In this essay, I take a skeptical look at the idea that law should give deference to private norms on the Net and suggest a number of reasons why one might prefer public to private ordering on the Net.

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    Paper provided by Berkeley Olin Program in Law & Economics in its series Berkeley Olin Program in Law & Economics, Working Paper Series with number qt53m6v36j.

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    Date of creation: 12 Mar 1999
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    Handle: RePEc:cdl:oplwec:qt53m6v36j

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    Cited by:
    1. Eric Brousseau, 2004. "Property rights on the internet: is a specific institutional framework needed?," Economics of Innovation and New Technology, Taylor & Francis Journals, vol. 13(5), pages 489-507.
    2. Elkin-Koren, Niva & Salzberger, Eli M., 1999. "Law and economics in cyberspace," International Review of Law and Economics, Elsevier, vol. 19(4), pages 553-581, December.

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