Tuesday, February 21, 2023
Mason Presents Bounding Extraterritoriality Today At Columbia
Ruth Mason (Virginia; Google Scholar) presents Bounding Extraterritoriality (with Michael Knoll (Penn)) at Columbia today as part of its Davis Polk & Wardwell Tax Policy Colloquium hosted by David Schizer:
It is easy to accept that federalism imposes limits on states’ entitlement to regulate too much. Vastly more difficult is describing the precise contours of any such limit. The challenge of this Article was to find a way of thinking about extraterritoriality that is not only simpler than what has come before, but also grounded in our Constitution’s structural federalism. To be successful, a conception of extraterritoriality must both give clear direction to courts and be sensitive to differences between nexus, extraterritoriality, and burdens. It must also answer the critics, who rightly argue that because extraterritorial effects are ubiquitous in commercial regulation, judicial attempts to root them out are unprincipled, overbroad, and unduly restrain states.
This Article proposed a new framework for thinking about the differences among nexus, extraterritoriality, and burdens, and it argued that the test for fiscal extraterritoriality—the internal consistency test—should also become the test for regulatory extraterritoriality. Armed with these doctrinal and normative tools, we reexamined the extraterritoriality cases, and we found not only that regulations raising genuine issues of extraterritoriality are rare (though possibly on the rise in this time of fraught interstate relations possibly), but that the Supreme Court and lower courts already tend to use internal consistency reasoning to resolve them. Analyzing difficult pending extraterritoriality cases under our doctrinal and normative reframing reveals that our approach substantially simplifies judicial review by properly identifying the competing interests at stake in extraterritoriality cases.