Vanderbilt Law Review


Austen Parrish

First Page



The world has recently seen a tremendous expansion in countries using extraterritorial laws'-laws that regulate the activities of foreigners outside a country's borders. In the United States, domestic laws now commonly regulate extraterritorial conduct and transnational litigation has blossomed. No longer limited to the antitrust and commercial contexts, courts apply all sorts of public and private laws to activity occurring abroad. Academics have encouraged the trend, finding the notion that law should be tied to territory to be an archaic remnant of a preglobalized world. In an age of globalization, the argument goes, law should find national and political borders of little significance. The enactment and application of extraterritorial laws have become unexceptional. A doctrinal culprit has sustained this growth in extraterritoriality. At the heart of most extraterritoriality cases lies the effects test. Developed at a time when legal realism captivated legal academia, the effects test permits a U.S. court to exercise prescriptive jurisdiction-and Congress is assumed to have intended to regulate-when an activity has direct or substantial effects within litigation). See generally Parrish, supra note I (listing contexts in which U.S. laws have been applied extraterritorially).