The Rise of Extraterritorial Regulation

by William S. Dodge

Most of the discussion so far has been about the constitutional parts of Kal’s book, which is appropriate given its title. But the part I found most fascinating has nothing to do with the Constitution. In Chapter 4, Kal tries to explain why the United States began aggressively to apply its regulatory statutes extraterritorially after World War II and not before. He makes a number of important points. First, it was not simply a matter of more transborder effects because of economic interdependence. The global economy was more integrated in 1909 when the Supreme Court decided American Banana than in 1945 when the Second Circuit decided Alcoa. Kal identifies a number of other factors that explain the timing, including the rise of the regulatory state (you need regulations before you can apply them extraterritorially), the decline of formalism in legal thought, and a post-war order in which legal conflict did not lead to military conflict.

I would put more emphasis than Kal does on changes in legal thought, particularly the effect of changes in the conflict of laws, which justified departures from territoriality to judicial minds. Kal downplays the impact of American conflicts law, stating that it “simply reflected prevailing international legal concepts rather than the reverse.” (p. 100). This may be true for the nineteenth and early twentieth centuries, when the Supreme Court had a tendency to adopt and even constitutionalize international concepts of jurisdiction. But conflicts thinking remained an important influence on extraterritoriality from Alcoa to Timberlane, even as American conflicts parted ways with international law. Timberlane certainly does not illustrate the effect of international law on American conflicts—if anything, it illustrates the reverse. A decade ago, I tried to trace the impact of conflicts thinking on extraterritoriality, which those who are interested can find here.

While Kal does a good job of explaining why extraterritorial regulation based on effects did not develop earlier, he is less explicit on why it was initially only the United States that asserted it. American hegemony is not the answer. In the post-war world, the United States would have been no more inclined to go to war with Britain over an issue of extraterritorial regulation than Britain was inclined to go to war with the United States. The answer, I think, lies in a point that Kal makes at several other points in the book (pp. 95, 113-14, 229) but not in this context, the presence of foreign assets in the United States. The ability of any nation to apply its law extraterritorially depends critically on rules of personal jurisdiction and the enforcement of judgments—what I have called the “structural rules of transnational law.” Smaller countries like the U.K. had less ability to enforce antitrust judgments against foreign companies, and so were less likely to regulate them in the first place.

Of course, the United States is no longer the only big country in the regulatory game. For many years the EU has been enforcing its competition law extraterritorially, and China has blocked or conditioned three mergers involving foreign firms in just the first year of its Antimonopoly Law’s operation. The future of extraterritorial regulation is likely to look quite different from the past.

The Origins of the Non-Extraterritoriality of the Bill of Rights

by David Golove

Kal deserves a hearty congratulations on the publication of Does the Constitution Follow the Flag. The book is really a tour de force. Kal offers a sweeping treatment of over two centuries of legal thought respecting territoriality in its multiple manifestations; situates his discussion in wider political, economic, and intellectual developments during this same period; brings out the subtle internal linkages between the various legal doctrines he traces; and offers a larger framework for thinking about the issues going forward. Despite its technical subject matter, moreover, the book is highly readable. Nevertheless, because praising a book quickly becomes boring (for everyone other than the author!), I will try to bring out some differences in our assessments of at least part of the historical materials he discusses – in particular, those which concern the question of the extraterritorial application of the Bill of Rights.

One of Kal’s core claims is about the fundamentality of territoriality in the development of U.S. law, including with respect to the application of the Bill of Rights to aliens overseas. The importance and topicality of this question will obviously not be lost on anyone. Kal follows conventional contemporary jurisprudence in thinking that territoriality provides the key to understanding historical ideas about the scope of application of the Bill of Rights. Because under the Westphalian model of sovereignty, accepted from the Founding through the 19th Century, law was strictly territorial, it followed, in Kal’s account, that the Constitution, like the laws of the United States more generally, applied only in the sovereign territory of the United States. . . .

The Dark Side of Territoriality

by Tim Zick

I want to join others in congratulating Kal on the publication of his outstanding book.  I also want to thank the OJ contributors for inviting me to visit their territory.

Issues of spatiality — place, geography, and territory — have been largely under-examined in legal scholarship.  This book is an invaluable synthesis and examination of a critical aspect of legal spatiality.

One of the most intriguing parts of the evolutionary path Kal charts is the consistently instrumental use of territory to further national goals.  I think territorial instrumentalism, in all its various forms, is quite dangerous to constitutional liberty and equality.  In a recent work, I examined how officials have resorted to territory and geography in a variety of  internal (e.g., sex offender exclusion zones) and external (e.g., Guantanamo) contexts as a means of controlling different populations and behaviors.  Historical antecedents of this form of territoriality abound, of course; they include the territoriality of racial segregation and the exclusion and internment of Japanese-Americans.  The Constitution too often permits officials to engage in this sort of territorial manipulation, I argue, because it contains various “spatial gaps” in coverage.

Kal’s book shows how the U.S. has exploited, or in some cases has attempted to exploit, similar gaps in a variety of intra- and extra-territorial contexts.  Guantanamo is merely the most obvious and most recent example.  As presented in the book, however, territorial instrumentalism seems to be an almost benign phenomenon.  It serves what at one time or another were considered perfectly respectable and legitimate national objectives — i.e., empire-building, territorial expansion, national security, protection of citizens abroad.  There is  a much darker side to territoriality, however, that might have warranted greater attention and critical analysis in the book.  I am referring, of course, to the blatant racism and xenophobia that led to the the unequal treatment of residents of U.S. territories, Chinese and other immigrants, American Indians, and others.  As Sarah Cleveland and others have claimed, Guantanamo itself may be rooted in this unsavory territorial history.  Describing the concern as one relating to the “uncivilized” nature of certain populations, or more particularly the civility of their judicial processes, seems to elide a significant aspect of our nation’s territorial history.  In many instances, territoriality has served invidious purposes.

That is not to suggest that racism and xenophobia are ignored in the book.  And it was surely not the point of the book to engage in a critical ananlysis of immigration policy, for example.  But perhaps as important to this story as the liberties and freedoms territoriality has provided to U.S. citizens, both at home and abroad, are the equality and rights that have been denied to the “other.”  And perhaps some part of the evolution of territoriality can be traced to our collective rejection of such invidious distinctions.

Does It Matter Whether the Constitution Follows the Flag?

by Peter Spiro

Thanks to Kal for joining us to discuss his terrific new book.

I’m on board with the premise that international politics goes a long way to explaining the arc of U.S. foreign relations law, including rules relating to territoriality; and Kal is absolutely correct that US law scholars pay too little heed to the global context as an explanation for doctrinal evolutions.  But how does international law enter into the picture?  On that front, Does the Constitution Follow the Flag? may be mostly about the past than about the future.  Over the long run, IL may moot out territorial issues that have challenged the Westphalian system. . . .

Is Extraterritoriality One Phenomenon or Many?

by William S. Dodge

“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.

Does the Constitution Follow the Flag? The Evolution of Territoriality in American Law

by Kal Raustiala

A century ago the presidential race between Republican William McKinley and Democrat William Jennings Bryan was consumed by the question of whether “the Constitution follows the flag.” The United States had just acquired several overseas colonies in the wake of the Spanish-American War. The Democratic Party platform of 1900 declared that “We hold that the Constitution follows the flag, and denounce the doctrine that [the federal government] can exercise lawful authority beyond it or in violation of it.” In opposition were those who believed that normal legal rights and rules did not apply fully—or at all—to the new American possessions. For these individuals, sovereign borders did not line up with constitutional borders.

At stake in this debate was the ability of the U.S. to participate in an age of great empires. As proponents of empire knew, if the Constitution indeed followed the flag any American empire was going to remain very small. At stake as well was the self-conception of the nation as a constitutional republic. Was the U.S. like other great powers of the day, all of whom had embraced a vigorous imperialism? Or did the Constitution provide powerful limits that could not be circumvented simply by (re)drawing lines on maps and declaring some areas beyond the reach of the Bill of Rights?

Does the Constitution Follow the Flag? is a book about the way that geography shapes legal rules and understandings—and how fundamental changes in American power and in world politics have challenged and sometimes altered the traditionally territorial system of American law. Do some U.S. laws stop at the water’s edge? If not, do they operate differently beyond American territory? As the election of 1900 shows, these debates are not new. But nor are they a musty relic of the imperial past. Today they are central to ongoing battles over the rights of detainees held in Guantanamo and Bagram, as the landmark decision in Boumediene v. Bush made clear. They are also central to the ability of the federal government to regulate foreign cartels, protect investors, and combat air and water pollution. Each of these issues, in short, raises questions of territoriality and extraterritoriality.

Does the Constitution Follow the Flag? has several aims. . . .

Book Discussion: Kal Raustiala’s “Does the Constitution Follow the Flag?”

by Peggy McGuinness

Opinio Juris is pleased to be hosting over the next three days a discussion of Professor Kal Raustiala’s new book, “Does the Constitution Follow the Flag? The Evolution of Territoriality in American Law” (OUP 2009). Professor Raustiala is a professor of law at UCLA and also director of the UCLA Ronald W. Burkle Center for International Relations. He has written broadly in both international law and international relations, and this outstanding new book reflects his deep engagement in both fields:

In this novel history of territoriality in American law and foreign policy, Kal Raustiala traces the evolving concept from post-revolutionary American to late-nineteenth century imperialism, the Cold War, and our own era of globalization. He closes with a powerful explanation of America’s attempt to increase its extraterritorial power in the contemporary world. As American power has grown, its understanding of extraterritorial legal jurisdiction has expanded too. Throughout, Raustiala focuses on how the legal limits of territorial sovereignty have been tweaked to accommodate the expanding American empire.

In addition to the OJ regulars, the discussion will be joined by three commentators: Professors Bill Dodge (UC Hastings), David Golove (NYU) and Tim Zick (William & Mary). We look forward to a lively discussion and hope that our readers will join the conversation in the comments section.