The New Landscape of State Extraterritoriality

Abstract

When is it permissible for the law of one state to have legal consequences in another? In the past, the Supreme Court has, in a variety of contexts, given diverse answers to this question, drawing on a wide array of constitutional provisions. In some ways, this lack of precise boundaries on state power makes sense; in an interconnected country, allowing state law to have some sort of extraterritorial effect is, in many contexts, virtually inevitable. Given this reality, rigidly confining state regulation solely to what happens within state borders would be both significantly disruptive and harmful to legitimate state interests.

Two recent developments, however, threaten the delicate equilibrium that has evolved in this area. First, the nature of states’ efforts to extend their territorial reach has, in recent years, been shifting in a way that may prove to spawn more conflict, as increasingly polarized states pass laws that – in contrast to past overextensions of state power, which were often about favoritism toward state residents – focus instead on advancing ideology. Second, two recent cases – National Pork Producers Council v. Ross and Mallory v. Norfolk Southern Railway Co. – have had the unintended consequence of removing some of the guardrails that have restrained state overreaching. Although the Court in both cases showed awareness of this problem, it has yet to propose a comprehensive fix. This Article discusses this situation, ultimately concluding that the dormant Commerce Clause balancing test first applied in Pike v. Bruce Church is likely, for lack of a better alternative, to have a disproportionate role in resolving extraterritoriality conflicts, and proposing ways in which the Pike framework might be adapted to better address such issues.

Keywords: Extraterritoriality, Dormant Commerce Clause, Due Process Clause, Federalism, National Pork Producers Council v. Ross, Mallory v. Norfolk Southern Railway Co.