Bounded Extraterritoriality

Authors

Ruth Mason, University of Virginia School of Law
Michael S. Knoll, University of Pennsylvania Carey Law School

Abstract

Twenty-first-century politics has inspired a new mode of interstate rivalries and reprisals consisting not of the tariffs that plagued the Founding but rather of regulations with significant impacts outside the enacting state’s borders. Employing the dormant Commerce Clause doctrine of extraterritoriality, the Supreme Court has limited overbroad state regulations, but the extraterritoriality doctrine is unclear both in its normative grounding and practical application. This Article proposes a conceptual framework that situates the prohibition of extraterritoriality as an aspect of horizontal federalism. Our conceptualization of extraterritoriality enables us to distinguish it from two dormant Commerce Clause doctrines with which it is often conflated—nexus and “undue burdens” on interstate commerce. We also propose several approaches to deciding extraterritoriality cases.

Recommended Citation

Ruth Mason & Michael S. Knoll, Bounded Extraterritoriality, 122 Mich. L. Rev. 1623 (2024).
Available at: https://repository.law.umich.edu/mlr/vol122/iss8/3