gravity’ over time and across issue areas.
I find that U.S. court decisions to regulate extraterritorially can be understood as
an adaptive response to threats in the regulatory environment. Extraterritorial regulation
is not a ‘strategy’ to maximize power on an international scale, but rather an artifact of
many comparatively small decisions dictated primarily by domestic regulatory
considerations. Technological change has increased the capacity for private actors
outside the United States to undermine the domestic operation of regulatory rules and
regimes, while also facilitating growth in the volume and density of transnational ties.
In addition, extraterritorial conduct inconsistent with the basic ideals underlying the
state’s character or identity is also recognized as a threat if undertaken by actors subject
to U.S. oversight. To manage these threats, courts (on rare occasions with help from
Congress) have modified the geographic reach of statutory rules regulating various
categories of activities to include conduct outside U.S. borders. They have also expanded
the categories of actors that may legitimately be required to answer to U.S. regulators.
The extent and character of both types of adaptation, in turn, is shaped by limitations on
the international enforceability of U.S. court judgments.
Accounting for extraterritorial regulation by domestic courts is important to at
least two areas of international relations (IR) theory. The first concerns questions
surrounding state sovereignty and its ability to control or mediate various processes of
globalization, including the capacity of states to control flows of people, goods, and ideas
across their external boundaries (Nye and Donohue 2000; Berger 2000; Garrett 1998). A
related issue concerns the effects of increased levels of external economic, social, and
cultural penetration on domestic political regimes and institutions (de Sousa Santos 2000;
Solinger et al. 1999). Extraterritorial regulation by definition overrides, or displaces, the
authority of the territorial sovereign. It is also frequently in tension with deeply
embedded international legal canons that formally limit a sovereign’s law-making power
(and by extension its regulatory power) to its own internationally recognized territorial
boundaries (Born 1996:23).
Second, extraterritorial regulation is also tied to trends in international rule
1
With a few notable exceptions, extraterritorial applications of U.S. regulatory rules began to occur on a
wide scale only in the post WWII period—and even then mainly in the commercial realm. More recently,
regulatory extraterritoriality has also become increasingly common in the social policy and security realms.
2
Although each part of the jurisdictional inquiry requires a distinct type of analysis, whether a court has
jurisdiction to hear a dispute is an ‘all or nothing’ proposition.
2
Convention