Document Type

Article

Publication Date

2023

Abstract

The extraterritorial application of statutes has received a great deal of scholarly attention in recent years, but very little attention has been paid the non-extraterritoriality of statutes, by which I mean their effect on cases beyond their specified territorial reach. The question matters when a choice-of-law rule or a contractual choice-of-law clause directs application of a state’s law and the state has a statute that, because of a provision limiting its external reach, does not reach the case. On one view, the state has no law for cases beyond the reach of the statute. The territorial limitation is a choice-of-law rule; it instructs courts to adjudicate the case under the law of another state. Because one state’s choice-of-law rules are not binding on the courts of other states, the provision may be disregarded by such courts, who may apply the statute’s substantive provisions to cases beyond the statute’s specified scope. On another view, cases beyond the reach of the statute are subject to another law of that state, such as its more general common law rules. Cases beyond the reach of the statute would thus be governed by another rule that state. A third view agrees with the first view that the enacting state has no law for excluded cases but insists that the provision limiting the law’s scope is not a choice-of-law rule. The provision is written as a limit on the law’s reach, and this substantive limitation must be respected by all courts. The statute cannot be applied to cases beyond its specified scope.

Each of the competing understandings of non-extraterritoriality has prominent judicial and scholarly adherents, and each finds support in successive iterations of the Restatement of Conflict of Laws. This article considers the judicial and scholarly defenses of each of the three positions and defends the view that external scope limitations are choice-of-law rules. Limitations on external scope reflect the legislature’s deference to the legislative authority of other states. They do not reflect a legislative preference that the statute’s substantive provisions not be applied to cases beyond their specified scope. If the legislature did intend to establish a different rule for cases involving out-of- state persons or events, the provision limiting the statute’s scope would in most cases be unconstitutional. In function and intended effect, a statutory provision limiting a statute’s external scope is a choice-of-law rule and, as such, can be disregarded by the courts of other states. But this position poses a conundrum: if the statute does not reach cases beyond its territorial scope, do courts violate their duty to decide cases according to law when they apply the statute to a set of facts that the statute does not purport to reach? Resolving this puzzle yields valuable insights into the nature of choice-of-law rules and the choice-of-law enterprise.

Publication Citation

Harvard Law Review, Forthcoming.

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