A Reappraisal of the Extraterritorial Reach of U.S. Law

Abstract

This article examines the extraterritorial application of U.S. law, with a particular focus on the territoriality presumption. The article argues that the territoriality presumption has become obsolete and should be abandoned. The presumption unduly constrains the extraterritorial application of U.S. laws - including in cases where significant national regulatory policies demand protection, where Congress fairly clearly sought to safeguard such interests and where no conflict with either international or foreign law would occur. Conversely, the presumption can result in the appplication of U.S. law in circumstances where only fleeting or arbitrary territorial connections exist, but where no meaningful U.S. regulatory policies are involved. The article concludes by arguing that the most appropriate alternative to the territoriality presumption is an "international law" presumption: courts should generally presume that federal law applies to that conduct which, under principles of public and private international law prevailing in the United States, is subject to U.S. law.