Assertions of legal power beyond territorial borders present lawyers, courts, and scholars with analytical onions comprising layers of national and international legal issues; as each layer peels away, more issues are revealed. The U.S. Supreme Court has recently been wrestling this conceptual and doctrinal hydra. Whether it is the geographic scope of U.S. regulatory laws, the power of U.S. courts over foreign defendants, the rights of foreigners detained outside U.S. territory, or he ability of U.S. courts to entertain causes of action arising out of activity abroad, all of these questions have one basic feature in common: they all relate to the phenomenon of what is generally referred to as “extraterritorial jurisdiction.” As the term indicates, it connotes the exercise of jurisdiction, or legal power, outside territorial borders. And, as the examples just listed suggest, this phenomenon can manifest in myriad ways.
Any legal analysis of extraterritorial jurisdiction leans heavily on the answers to two key definitional questions: What do we mean by “extraterritorial”? And, what do we mean by “jurisdiction”? Because, as we will see, the answer to the first question is often conditional on the answer to the second, the questions are probably better addressed in reverse order, that is: What type of “jurisdiction” is at issue? And, is its exercise “extraterritorial”?
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