Is Extraterritoriality One Phenomenon or Many?
“Does the Constitution Follow the Flag?” is a fascinating book, and one of its great strengths is that it juxtaposes a number of different examples of how law and territory do not align, some of which have been largely forgotten. When most of us think about extraterritoriality, we think of issues like the extraterritorial application of antitrust law, the applicability of the Fourth Amendment to searches in Mexico, or whether detainees at Guantanamo can file habeas petitions. We are less likely to think about Status of Forces Agreements (SOFAs), consular jurisdiction, or the non-application of certain constitutional rights in Indian country.
Kal claims repeatedly in his book (and again in his post) that the primary function of all these kinds of extraterritoriality is the same—to manage legal differences. In the broadest sense, this is necessarily true. If all law and procedure were the same everywhere in the world, there would be no occasion to apply law extraterritoriality. But it seems to me that three fundamentally different phenomena are being discussed: (1) the protection of Americans abroad from foreign laws (e.g. consular jurisdiction and SOFAs); (2) the application of American laws to foreigners (e.g. extraterritorial antitrust); and (3) the limitation of U.S. government actors by the Constitution. To be sure there are relationships among these categories—in particular, (1) and (2) each raise issues (though different issues) under (3). But I am not convinced that each has the same primary function except at the very highest level of generality.
I would also take issue with the way in which the extraterritorial application of regulatory law manages legal differences. Kal claims it levels the playing field by making sure that foreign firms have to abide by the same rules as American ones (pp. 100, 228). That is not the rationale one finds articulated in U.S. cases applying antitrust or securities law extraterritorially, however, which talk much more about protecting consumers and investors than about protecting competitors. I might also point out that the Foreign Corrupt Practices Act—an example of extraterritorial regulation the book does not discuss—tips the playing field against American companies by subjecting them to restraints foreign firms did not face until some level of harmonization was achieved with the OECD Convention. My basic point here is that just as regulatory legislation can have a variety of purposes, so its extraterritorial application can have a variety of purposes. One of these might be to level the playing field for U.S. firms, but it is not the only, or even the dominant, one.