The Evolution of Territoriality: International Relations and American Law

Abstract

Territoriality is decreasingly important as a jurisdictional principle. Since the 1940s, federal statutes in a wide range of areas - antitrust, securities, criminal law, intellectual property, to name just some - have been frequently understood to have extraterritorial effect. Similarly, the protections of the Bill of Rights, once believed to apply only within US territory, now extend across the globe with regard to US citizens. In short, territoriality has been slowly unbundled from sovereignty.

What explains the evolution of what I call here "rules legal spatiality?" The second-image reversed tradition in political science argues that international relations play an important causal role in domestic change. While doctrinal evolutions in discrete areas of the law are undoubtedly an important factor in this shift, I argue that legal rules, like other domestic policies, are influenced by the constraints and opportunities presented by the international system. My primary claim is that the existing pattern of legal spatiality reflects the contingencies of history, but it chiefly reflects power and interest. Over the last century US courts, litigants, Congress, and the Executive have all engaged in instrumental assessments of the benefits and detriments of a reliance on territorial location as a legal principle in particular instances. As world politics has changed, these benefits and detriments have also changed. For example, while globalization is often said to reduce the centrality of territory to states, globalization vel non cannot adequately explain the decline of territorial doctrines of jurisdiction because globalization was highly significant during the 19th century - the height of jurisdictional congruence. Rather, it is the particular nature of postwar globalization, coupled to the rise of the modern regulatory state, that has increased the incentives for states - in particular the US - to assert domestic law beyond their sovereign borders.

Keywords: territorial boundaries, globalization, territorial sovereignty