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Dual Illegality and Geoambiguous Law: A New Rule for Extraterritorial Application of U.S. Law


Jeffrey A. Meyer


Quinnipiac University School of Law; Yale Law School

March 12, 2010

95 Minnesota Law Review, 110 (2010)

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.

Number of Pages in PDF File: 77

Keywords: public international law, extraterritoriality

JEL Classification: K33

working papers series


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Date posted: March 14, 2010 ; Last revised: April 22, 2012

Suggested Citation

Meyer, Jeffrey A., Dual Illegality and Geoambiguous Law: A New Rule for Extraterritorial Application of U.S. Law (March 12, 2010). 95 Minnesota Law Review, 110 (2010). Available at SSRN: http://ssrn.com/abstract=1569643 or http://dx.doi.org/10.2139/ssrn.1569643

Contact Information

Jeffrey A. Meyer (Contact Author)
Quinnipiac University School of Law ( email )
275 Mt. Carmel Ave.
Hamden, CT 06518
United States
Yale Law School ( email )
P.O. Box 208215
New Haven, CT 06520-8215
United States

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