THE LAW IS (becoming) FLAT
Monday 29 September 2008 at 12:41 am Update: The New York Times revisits - today - the rule of law by noting that: "the Supreme Court...has become a battleground for...two worldviews. The justices are split on whether it is a more accurate "conception of law" that "demands that American law be pictured alongside international law and other (legitimate) national constitutions" or rather "any interpretation of the Constitution that restricts the nation’s security or sovereignty — for example, by extending constitutional rights to noncitizens encountered on battlefields overseas — is misguided..." for more go here.10- 1- 2007
New York Times columnist Thomas Friedman observed in his popular book, The World is Flat, that the convergence of technology and economic events were flattening the globe in ways that challenged conventional thinking about foreign policy and globalization. Similarly, law is flattening. Global competition is requiring law to be flat.
Law is flattening because globalization is increasingly challenging our conceptions of the practical effect of business transactions that bleed across borders of nation states.
Certainly, we will continue to look toward the U.S. Supreme Court for dispositive rulings, but, even among Supreme Court justices, there is no unanimity on the relevance of extraterritorial sources of law. Moreover, since business is increasingly conducted on a global scale, the same reasons that often render federal laws more effective than state laws for certain firms doing business across the nation, similarly, support harmonized business law on the global stage.
On September 17, 2007, the European Court of First Instance issued a decision in the Microsoft antitrust case that is difficult to ignore for its contrast in how a similar issue was resolved by American courts. Far more prescriptive than American courts, the European Commission provided broad guidance on the conceptual relationship between intellectual property rights and antitrust law. In Europe, today, there are more restrictions than in the United States on when a dominant firm may refuse or withhold licensing its intellectual property from a competitor or business partner.
Yet, if law is genuinely getting flat in a manner similar to Friedman’s thesis, then the EC’s ruling ultimately will have implications far beyond European borders. Microsoft (and similar dominant firms) will have to plan their business transactions for the practical reality that a new global restriction or condition now exists on the ability of dominant firms to prevent third party interoperability by bundling or integrating products to maintain a dominant position.