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Hastings International and Comparative Law Review

Authors

Dan E. Stigall

Abstract

With the rise of transnational crime, domestic courts are increasingly called upon to make decisions, within the context of a national court and domestic legal system, which implicate international issues and the interests of other sovereign states. This Article explores the role of international law in U.S. law in the context of an area of law which marks the intersection between domestic law and international affairs: the exercise of extraterritorial jurisdiction. The analysis demonstrates the continued force of international law in the body of U.S. domestic law which governs this realm and highlights both the advantages and dangers attendant to the reliance upon international law by courts engaged in this complex yet increasingly salient area of the law. In so doing, the Article illuminates the multifarious approaches to limiting extraterritorial jurisdiction among lower courts - and the differing ways in which international law is incorporated into U.S. domestic law for purposes of that analysis. With so many courts speaking a different legal language and espousing so many conflicting views, U.S. domestic law regarding limits on extraterritorial jurisdiction is fractured. Nonetheless, some hope for resolution may be found as the analysis also illuminates a number of similarities in these seemingly different approaches. By understanding the role international law plays in each of these analyses, the similarities of the undergirding rationales as well as the differences and potential dangers, policymakers and legal actors can work to clarify this discordant and fractured legal landscape and articulate a unified view of international law and limitations on the exercise of extraterritorial jurisdiction in U.S. domestic law.

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