This Article contends that the current state of the debate over the balancing of interests in the extraterritorial application of United States law is outmoded and in need of serious reexamination. Most commentators and scholars continue to focus on the area of jurisdiction to prescribe, the acceptability of the effects test, and the development of lists of United States and foreign interests to be balanced by a United States court before exercising jurisdiction.
Professor Waller contends that this debate is no longer productive. Extraterritoriality, with some limitations for the interests of other states, is an accepted feature of United States law, and approaches the degree of binding state practice to be considered a rule of customary international law. In addition, the concept of extraterritoriality and interest balancing has spread beyond the area of jurisdiction to prescribe and has permeated all aspects of transnational litigation procedure.
These cases now raise on a regular basis difficult questions of jurisdiction to prescribe, personal jurisdiction, and discovery abroad. The Supreme Court's response has been to call for the same type of unstructured and highly discretionary balancing of interests tests that has plagued the antitrust area since the Timberlane decision.
Professor Waller argues that such unstructured balancing tests impose significant and unfamiliar burdens on parties and courts trying to resolve issues that go beyond the private interests of the litigants and seek to address the interests the United States and a foreign state may have in an otherwise private dispute. The author argues that the problems raised by the spread of an unstructured balancing of interests require a deeper probing of the nature, expression, and documentation of foreign interests. Professor Waller sets forth the type of foreign interests that mandate deference by a United States court, the expression of those national interests, and the sources of information available to document such interests as a matter of evidence, and not merely rhetoric.
Spencer W. Waller,
Bringing Meaning to Interest Balancing in Transnational Litigation,
23 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vjtl/vol23/iss5/2