Extraterritoriality in the Public and Private Enforcement of U.S. Regulatory Law
Forthcoming in The Continuing Relevance of Private International Law and Its Challenges (F. Ferrari & D. Fernandez Arroyo eds., Elgar)
Indiana University Bloomington Maurer School of Law
Date Written: 2019
The extraterritorial application of U.S. regulatory law has been the focus of significant scholarly attention in recent years, particularly in the context of private claims. However, the geographic scope of regulatory law is an issue in other contexts as well, since the enforcement of regulatory law in the United States depends on a blend of administrative proceedings, criminal proceedings, and private litigation. The goal of this essay is to consider the current state of extraterritoriality analysis across the different modes of enforcement. It examines an emerging differentiation in the application of federal statutes to private claims, on the one hand, and in public enforcement proceedings (both civil and criminal), on the other. The essay traces this phenomenon to two shifts. The first relates to a question requiring unilateral analysis: how to define the scope of a particular statute. In several areas of federal regulatory law, the geographic scope of statutes is no longer defined consistently across enforcement contexts. Rather, it has been defined more narrowly in private claims than in proceedings initiated by public authorities. The second shift relates to a question requiring multilateral analysis: whether and how the determination to apply local law should account for the interests of other states. In a variety of ways, public regulators consider such interests when deciding whether to initiate investigations and proceedings in cases involving significant foreign elements. In private enforcement, by contrast, the case-specific consideration of other states’ interests has fallen out of favor. As a result of these shifts, several U.S. statutes are now less likely to be applied extraterritorially in private litigation than in public enforcement proceedings, diminishing the role of private enforcement in the transnational arena.
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