Fading Extraterritoriality and Isolationism? Developments in the United States: The 2016 Earl A. Snyder Lecture in International Law

Abstract

This working paper (in draft form) is a slightly expanded version of the 2016 Earl A. Snyder Lecture delivered at the Lauterpacht Centre for International Law at the University of Cambridge in May 2016. These remarks provide an overview of how the procedural rules of international civil litigation are developing and changing in the United States, and how those developments in turn affect more traditional forms of international lawmaking. I take a different tack from those who are more pessimistic about recent U.S. Supreme Court decisions that have curtailed private enforcement of extraterritorial regulation, and challenge the notion that the effect of the Court's decisions is anti-internationalist or isolationist. To the extent the use of domestic law applied extraterritorially and unilaterally is a less viable option to provide redress, it may prompt, at least on the margins, a reinvigoration of other more cooperative approaches to solving global challenges. For those skeptical of the legitimacy and longer-term efficacy of unilateral approaches (whether through the courts or elsewhere), modest pressure to spur further responsible multilateral coordination and engagement may be a positive development.