65 Pages Posted: 26 Apr 2019
Date Written: March 27, 2019
The increasing ease with which people and data move across borders perennially sparks passionate debates about whether territorial rules of jurisdiction are adequate to address modern legal concerns. Yet scholars holding otherwise diverse views often assume that the meaning of territoriality has been clear and consistent over time. This Article challenges that perspective and contributes to this vital contemporary discussion by returning to ground zero: territoriality. In particular, it looks at courts’ historical treatment of the territoriality problem that most concerns us today: When should a sovereign have the power to regulate far-flung events? In the past, given the decreased prevalence of both multijurisdictional disputes and policy-based variations in state law, this question was simply less relevant. Territorial boundaries mattered, but they mattered in a way that was at once more concrete and more abstract than is true today: Borders set forth the limits of the sovereign’s physical power over people and property, and they provided the conceptual justification for the sovereign’s ability to exercise such power. By contrast, we use the term “territoriality” today to mean something significantly different: the relationship between a sovereign’s regulatory authority and tangible space. Recognizing this shift, this Article argues, is important for understanding territoriality’s historical role. It is also crucial for developing doctrines that squarely address the way in which borders function in the world today.
Keywords: choice of law, personal jurisdiction, territoriality, extraterritoriality
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