Home » Articles » Jurisdictional Standards (and Rules)

Jurisdictional Standards (and Rules)

PDF · Adam I. Muchmore · Feb-12-2013 · 46 VAND. J. TRANSNAT’L L. 171 (2013)

This Article uses the jurisprudential dichotomy between two opposing types of legal requirements—“rules” and “standards”—to examine extraterritorial regulation by the United States. It argues that there is natural push toward standards in extraterritorial regulation because numerous institutional actors either see standards as the best option in extraterritorial regulation or accept standards as a second-best option when their first choice (a rule favorable to their interests or their worldview) is not feasible.

The Article explores several reasons for this push toward standards, including: statutory text, statutory interpretation theories, the nonbinary nature of the domestic/foreign characterization, the tendency of extraterritorial regulation to favor plaintiffs, interest-group pressures, and interbranch struggles within the federal government.

Since it appears standards are here to stay, this Article concludes by suggesting that they may have some underappreciated benefits, at least from the perspective of a regulating state. First, the uncertainty inherent in standards may be a necessary consequence of regulatory schemes permitting private civil litigants to enforce extraterritorial statutes. Second, this inherent uncertainty may permit a state’s regulatory program to influence primary behavior abroad that would be difficult to reach through a rule-based model.




Leave a Reply

ExpressO Top 10 Law Review

ANNOUNCEMENTS

May 2018 Issue on the Second Israel Defense Forces International Conference on the Law of Armed Conflict. Read more about the Journal’s May 2018 issue here.

The Vanderbilt Journal of Transnational Law is proud to celebrate 50 years. Read about the Journal’s history here.

Connect with the Vanderbilt Journal of Transnational Law on LinkedIn.

The Journal is pleased to listed as the #6 International Law Journal by the 2017 Washington and Lee Law Journal Rankings.

The Journal is pleased to announce the 2017-2018 Board of Editors: here

The Journal is very excited about the success of our February 2017 Symposium, “Sovereign Conduct on the Margins of the Law.” Read more about our February 2017 Symposium here

Please join us in congratulating the Vanderbilt Journal of Transnational Law 2017-2018 Write-On Competition Winners.

Video is available from the Vanderbilt Journal of Transnational Law’s 2015-2016 SymposiumThis is Not a Drill: Confronting Legal Issues in the Wake of International Disasters. Watch here.

Explore Other Vanderbilt Law Resources