Law Commons^™

Evading Legislative Jurisdiction, Austen L. Parrish

Articles by Maurer Faculty

In the last few years, and mostly unnoticed, courts have adopted a radically different approach to issues of legislative jurisdiction. Instead of grappling with the difficult question of whether Congress intended a law to reach beyond U.S. borders, courts have side-stepped it entirely. Courts have done so by redefining the definition of extraterritoriality. Significant and contentious decisions in the Ninth and D.C. Circuits paved the way by holding that not all regulation of overseas foreign conduct is extraterritorial. And then suddenly, last term, the U.S. Supreme Court breathed life into the practice. In its landmark Morrison v. National Australia Bank …

The Effects Test: Extraterritoriality’S Fifth Business, Austen L. Parrish

Articles by Maurer Faculty

American laws increasingly regulate the conduct of foreigners abroad. The growth in extraterritorial laws, in no small part, can be traced to the effects test - a doctrine that instructs courts to presume that Congress intended to regulate extraterritorially when foreign conduct is found to have a substantial effect within the United States. For many scholars and lawyers, the effects test is the doctrinal lynchpin for determining the geographic reach of domestic laws. Territorial limits on legislative jurisdiction, on the other hand, are seen as anachronistic; a remnant of a pre-modern, pre-globalized world.

This article takes a different, more skeptical …