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Thursday, March 18, 2010

The Geographic Reach of Federal Law...

Last week, I blogged about an amicus brief that Max Huffman and I are about to file.  The amicus brief involves the issue of how courts should approach questions of legislative jurisdiction and the extraterritorial reach of federal laws (post here).  I thought I would continue the conversation about extraterritoriality and note three excellent articles that were recently posted on SSRN.  Jeff Meyer of Quinnipiac wrote the first article.  Chimene Keitner at UC Hastings wrote the second.  Anthony Colangelo of SMU  wrote the third.

The issue of when U.S. laws reach conduct outside U.S. borders and the role territoriality should play in law remains a hot topic. The question of extraterritoriality has arisen in a number of recent high-profile cases.  In December, the U.S. Supreme Court accepted certiorari in a "foreign-cubed" securities class action. Foreign-cubed securities actions are lawsuits that foreign plaintiffs file against foreign defendants, alleging fraud in connection with the sale or purchase of shares in foreign markets. They are, to say the least, highly contentious. Extraterritoriality arises in other contexts too: the extent to which the U.S. Constitution applies outside U.S. borders has also become a key point of discussion in terrorism cases.  Extraterritoriality also remains a hot topic among international law professors.  Last year, when Kal Raustiala's influential book on territoriality was published, there was a wave of commentary, including a week long discussion of the topic on Opinio Juris.  IntLawGrrls -- another influential international law blog -- has had a number of interesting posts on extraterritoriality too.

With this backdrop, three excellent articles were recently posted on SSRN.  If you're interested in the topic of extraterritoriality, they are well worth reading....

The first article is by Jeffrey Meyer of Quinnipiac.  His article -- Dual Illegality and Geoambiguous Law: A New Rule for Extraterritorial Application of U.S. Law -- was posted last Friday on SSRN here.  The article is well-written and nicely sets out the debates on how to interpret the geographic reach of U.S. law. Here's the abstract:  

Scores of federal criminal and civil statutes are “geoambiguous” - they do not say whether they apply to conduct that takes place in foreign countries. This is a vital concern in an age of exploding globalization. The Supreme Court regularly recites a “presumption against extraterritoriality” but just as often overlooks it and opts to apply geoambiguous law abroad. The Court’s inconsistency bespeaks a deep divide among scholars. Judicial unilateralists favor liberally imposing U.S. law abroad to respond to unwanted effects from foreign conduct. Judicial territorialists favor restraint and a return to traditional territoriality to avoid international conflict. And judicial interests-balancers favor multi-factored, case-by-case consideration of whether it is “reasonable” to apply geoambiguous law abroad.

This Article advances a new approach - a proposed rule of “dual illegality” to govern how courts apply geoambiguous laws. Under a dual illegality rule, U.S. courts should decline to apply geoambiguous laws to penalize or regulate conduct that occurs in the territory of a foreign state unless the same conduct is also illegal or similarly regulated by the law of the foreign territorial state. A similar rule of dual illegality has worked for many decades as a limitation in countless criminal extradition treaties. A dual illegality rule would revitalize traditional territoriality values as a limiting principle on U.S. assertion of its law abroad, while also allowing extraterritoriality when there is the least likelihood of provoking political dispute. The response to greater globalization should be less jurisdictional contestability and more reliance on rules that do not invite judges - as the rules wrongly do now - to engage in policy-like assessments of the needs or interests of the United States in having its law applied to activity abroad. Courts should apply a dual illegality rule to decide the scope of geoambiguous law.

John Knox of Wake Forest has a recent article in a similar vein, which is likewise excellent. The article  -- Extraterritoriality and Its Discontents: Limiting the Reach of U.S. Law - can be found here.  

The second article -- Rights Beyond Borders -- was written by Chimene Keitner from UC Hastings. Although originally posted a year ago, a new revised version was posted on SSRN just last week and can be found here.  Chimene's article focuses on the when constitutional rights apply in the context of detention and interrogation of terrorism suspects.  Here's the abstract:

Burgeoning scholarly interest in comparative constitutional law, transnational criminal law, and national security law has generated surprisingly little synthesis among these fields. The central question of whether, and when, a country’s domestic rights regime constrains government action beyond national borders has largely escaped comparative analysis. This Article addresses this gap by developing a conceptual framework for thinking about the extraterritorial application of domestic rights provisions, with a focus on cases arising from the detention and interrogation of terrorism suspects. Part I identifies three modes of reasoning about rights beyond borders, which I label country, compact, and conscience. Country-based reasoning takes a strictly territorial approach to regulating the government’s action outside the national territory, even vis-à-vis its own citizens. Compact-based reasoning focuses on the entitlement of a given individual to assert rights against the government based on his or her citizenship and/or presence within the national territory. Conscience-based reasoning focuses on the government’s limited mandate to act solely in accordance with a prescribed set of national values in all locations and circumstances. Part II examines the evolving jurisprudence of extraterritorial rights in three common law jurisdictions in light of these models: the United States under the U.S. Constitution, Canada under the Canadian Charter of Rights and Freedoms, and the United Kingdom under the U.K. Human Rights Act. These three categories (country, compact, and conscience) provide a vocabulary for describing how domestic courts reason about the extraterritorial application of domestic rights in particular circumstances. They can also help us think more systematically about how courts and other actors should reason about rights beyond borders, as governments bring their coercive power to bear on individuals in a variety of extraterritorial circumstances.

The last article --  The Foreign Commerce Clause -- was written by Anthony Colangelo and will soon appear in the Virginia Law Review.  Here's the abstract:

This Article is the first major scholarly work to comprehensively address Congress’s powers under the Constitution’s Foreign Commerce Clause. Congress has increasingly used the Clause to pass laws of unprecedented and aggressive reach over both domestic and foreign activity. Yet despite the Clause’s mounting significance for modern U.S. regulatory regimes at home and abroad, it remains an incredibly under-analyzed source of constitutional power. Moreover, faced with an increasing number of challenges under the Clause lower courts have been unable to coherently articulate the contours of Congress’s power. When courts have tried, their efforts have largely been wrong. The Article explains why they have been wrong and offers a doctrinally and conceptually sound approach to the Clause based on the text, structure and history of the Constitution. It also engages broader legal and policy questions triggered by the Clause. As I show, the Clause is crucial to how Congress constitutionally may project U.S. law around the world.

The Article advances two key limits on Congress’s foreign commerce power and reformats the Supreme Court’s three-category commerce framework for the Clause in light of these limits. The first is the nexus requirement, which derives from the Constitution’s grant of power only to regulate commerce “with foreign Nations,” not a general, global power to regulate commerce “among foreign Nations.” Foreign commerce that is the subject of federal regulation therefore not only must be “with” foreign nations, but also “with” the United States. That is, there must be a U.S. nexus. The second limit I refer to as the foreign sovereignty concern. It holds that Congress has no more power and, in some contexts, has less power to regulate inside foreign nations under the Foreign Commerce Clause than it has inside the several U.S. states under the Interstate Commerce Clause. For example, Congress cannot create comprehensive global regulatory schemes over international markets or prevent races to the bottom among the world’s nations the same way it can create comprehensive national regulatory schemes over domestic markets and prevent races to the bottom among the states. Because Congress lacks primary authority to create such global schemes, it cannot claim a derivative authority to reach local foreign conduct that threatens to undercut those schemes the same way it can reach local intrastate conduct in order to effectuate regulation “among the several States.”

All three are well written and worth reading.

Posted by Austen Parrish on March 18, 2010 at 01:09 AM in International Law | Permalink

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