Federal Extraterritoriality and Fifth Amendment Due Process

Abstract

Currently, defendants subject to the extraterritorial application of federal law generally do not invoke the Due Process Clause of the Fifth Amendment to limit the application of federal statutes. Defendants subject to extraterritorial application of state law, on the other hand, quite often succeed in making analogous Fourteenth Amendment due process arguments. In this Article, Brilmayer and Norchi contend that courts should recognize Fifth Amendment limits on choice of law in the context offederal extraterritoriality in the same manner that they recognize Fourteenth Amendment limits on state extraterritoriality. Surveying a number of prominent recent cases, Brilmayer and Norchi examine how the application of Fifth Amendment constraints would alter the results in these cases.