Friday, September 11, 2009
Posted by D. Daniel Sokol
Hannah L. Buxbaum, Indiana University School of Law-Bloomington has a new piece article on Territory, Territoriality, and the Resolution of Jurisdictional Conflict.
ABSTRACT: Ever-increasing gaps and overlaps in the national regulation of cross-border events challenge territorial sovereignty as the conceptual basis for rules on legislative jurisdiction. At the same time, the work of scholars in a range of disciplines, including international relations and critical geography, has complicated our understanding of the relationship between territory and power in the age of globalization. As a result, emerging models of jurisdictional theory are moving away from territory, and territorially based concepts of regulatory power, as the basis for defining legislative authority. What risks being overlooked in this shift is the critical step between re-thinking the construction of territory and rejecting the salience of territoriality to jurisdictional frameworks. While territorial contacts may function as simple factual inputs in jurisdictional analysis, 'territoriality' and 'extraterritoriality' are legal constructs - claims made by particular actors, and assessed by particular institutions, within particular legal systems. The meaning of such claims is therefore dependent upon the local practices and understandings of specific regimes. This article uses a case study of the role of territory in U.S. and German competition law to uncover differences in those systems that affect their respective constructions of territoriality. It argues that local legal and institutional frameworks remain relevant in the transition from traditional conflicts models to newer regulatory strategies, and that the process of integrating critical reconceptualizations of territory into jurisdictional theories must account for differences in those frameworks across regimes.