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Clyde S. Spillenger, Risk Regulation, Extraterritoriality, and the Constitutionalization of Choice of Law, 1865-1940, UCLA School of Law Research Paper No. 12-01 (February 15, 2012), available at SSRN.

Most constitutional law scholars pay no attention to the field of conflicts of law. Conflicts governs the law of multi-jurisdictional litigation—like which state’s law to apply when a railroad worker is injured on a train from Alabama to Mississippi, or whether a marriage in one state will be recognized in another, or how to enforce a court’s ruling against assets or people in another state. And as those examples might suggest, it can frequently seem like a technical adjunct to civil procedure.

Yet conflicts questions frequently do interact with constitutional law principles of federalism. One example is the doctrine of “extraterritoriality”—the limits on a state’s ability to regulate stuff that takes place somewhere else. Territoriality is a basic premise of the federal system; everybody knows that the New York legislature can’t just sit down and rewrite all of the laws of New Jersey. This seems like a common-sense requirement of our constitutional structure.  But as Clyde Spillenger demonstrates in Risk Regulation, Extraterritoriality, and the Constitutionalization of Choice of Law, 1865-1940, the nature and source of this principle is misunderstood today.

Spillenger targets the widespread assumption that once upon a time, courts recognized a strict rule that it was unconstitutional for a state to regulate outside of its borders. On this account, the 19th Century was an era of formalist constitutional limits on regulatory power, which was only gradually relaxed in the 20th Century as legal realism and progressive politics led to the modernization of doctrine. Even today, the Supreme Court recognizes a vestige of this constitutional territoriality under the Due Process and Full Faith and Credit Clauses: “if a State has only an insignificant contact with the parties and the occurrence or transaction,” the Court says, “application of its law is unconstitutional.” Some scholars urge the Court to reinvigorate stricter constitutional limits on state extraterritoriality.

Spillenger’s piece is fantastic revisionist history: He makes a strong case that the widespread assumption is wrong, and that the constitutional doctrine ought to be abandoned, not reinvigorated. In detailing the forgotten history of territoriality, he shows that the modern view misses two important pieces of historical context.

First of all, before the Civil War, the jurisprudence of conflict of law “did not even acknowledge” the possibility of constitutional limits on extraterritoriality. Limits on territoriality were thought to relate to the limits of a state’s power to legislate for another one. But there simply wasn’t a lot of state legislation of the relevant kind: most interstate disputes were tort and contract cases were governed by general common law. Because the law was discovered by judges rather than made by legislators, it was not thought to implicate territoriality problems at all. After Erie v. Tompkins, we may mock the idea of law as a “brooding omnipresence in the sky,” but that brooding omnipresence was widely accepted by antebellum jurists, and it shaped their view of conflict of laws.

Second, even once states did start to pass statutes governing interstate private-law disputes—a range of risk-regulation statutes stemming from increased industrialization in the late 19th Century—courts did not recognize a constitutional principle of territoriality. Instead, people believed that territoriality was a general principle of jurisprudence, not a specific rule of due process, full faith and credit, or conflict of laws. Once again, the traditional way of thinking about territoriality stemmed from the pre-Erie concept of general law. Territoriality principles came from international law and general legal principles, rather than being created by any particular source of federal law.

In other words, an attempt to resurrect historical constitutional limits on choice of law is misconceived. This doesn’t mean that law has nothing to say about territoriality—for example, under Steve Sachs’s arguments about “constitutional backdrops”, it might well be that the Constitution prohibits states from changing the general law principles of territoriality—but those rules don’t actually come from the Constitution, so it is a mistake to search the Due Process and Full Faith and Credit Clauses for territorial limits on a state’s authority.

Spillenger’s piece is also an antidote to historical myopia. To the modern eye, everything before the dawn of legal realism is just “old law,” with little appreciation for the important differences between 1810 and 1870 and 1910. But Joseph Beale and Joseph Story had very different theories of conflict of laws, even if both of them are quite distant from any of the modern ones. By bringing forth the now-strange assumptions of 19th-Century jurisprudence, Spillenger demonstrates how deeply we can misapprehend a legal doctrine if we don’t understand the legal context in which it arose.

By the way, so far as I know, this piece has not yet been picked up by a law journal. Student editors who are reading this: grab it while you can!

(Revised 6/19/2013)

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Cite as: William Baude, State Boundaries and Constitutional Limits, JOTWELL (June 18, 2013) (reviewing Clyde S. Spillenger, Risk Regulation, Extraterritoriality, and the Constitutionalization of Choice of Law, 1865-1940, UCLA School of Law Research Paper No. 12-01 (February 15, 2012), available at SSRN),