Constructing the state extraterritorially: Jurisdictional discourse, the national interest, and transnational norms

Harvard Law Review

Volumn 103, Issue 6, 1990, Pages 1273-1305

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EID: 9744250765     PISSN: 0017811X     EISSN: None     Source Type: Journal    
DOI: 10.2307/1341413     Document Type: Article

References (205)

1. United States v. Verdugo-Urquidez, 58 U.S.L.W. 4263, 4267 (U.S. Feb. 28, 1990) (quoting Perez v. Brownell, 356 U.S. 44, 57 (1958)).
2. B. PASCAL, PENSÉES § 146, at 162 (F. Kaplan ed. 1982) (1st ed. 1670), translated in P. SAHLINS, BOUNDARIES: THE MAKING OF FRANCE AND SPAIN IN THE PYRENEES 270 (1989).
3. B. PASCAL, PENSÉES § 146, at 162 (F. Kaplan ed. 1982) (1st ed. 1670), translated in P. SAHLINS, BOUNDARIES: THE MAKING OF FRANCE AND SPAIN IN THE PYRENEES 270 (1989).
4. See Berke, Noriega Arraigned in Miami in a Drug-Trafficking Case; He Refuses To Enter a Plea, N.Y. Times, Jan. 5, 1990, at A1, col. 6.
5. See United States v. Noriega, No. 88-0079CR (S.D. Fla. grand jury indictment filed Jan. 4, 1990) (1990 U.S. Dist. LEXIS 1).
6. See Berke, supra note 3, at A10, col. 5.
7. See Boureslan v. Aramco, 653 F. Supp. 629 (S.D. Tex. 1987), aff'd, 857 F.2d 1014 (5th Cir.), reh'g granted, 863 F.2d 8 (5th Cir. 1988), aff'd en banc, 892 F.2d 1271 (5th Cir. 1990).
8. 42 U.S.C. § 2000e (1982).
9. See Boureslan v. Aramco, 857 F.2d 1014, 1016 (5th Cir.), reh'g granted, 863 F.2d 8 (5th Cir. 1988), aff'd en banc, 892 F.2d 1271 (sth Cir. 1990).
10. See 892 F.ad 1271, 1273-74 (5th Cir. 1990) (en banc); 653 F. Supp. at 630. For further discussion of the case, see p. 1281 below.
11. See RESTATEMENT (THIRD) or FOREIGN RELATIONS LAW § 401(a) (1987) (defining "jurisdiction to prescribe" as the state's power "to make its law applicable to the activities, relations, or status of persons, or the interests of persons in things"). This Note does not address questions about a state's jurisdiction to adjudicate or to enforce judgments. Thus, this Note assumes that the conduct to be prescribed occurs between parties over whom the state has personal jurisdiction and against whom the state can enforce potential judgments.
12. See id. §§ 402-403.
13. The Restatement provides: [A] state has jurisdiction to prescribe law with respect to (1)(a) conduct that, wholly or in substantial part, takes place within its territory; (b) the status of persons, or interests in things, present within its territory; (c) conduct outside its territory that has or is intended to have substantial effect within its territory; (2) the activities, interests, status, or relations of its nationals outside as well as within its territory . . . . Id. § 402(1)-(2).
14. See id. § 403(2) (listing factors such as "the character of the activity to be regulated, the importance of regulation to the regulating state[,] . . . the importance of the regulation to the international political, legal, or economic system[,] . . . the extent to which another state may have an interest in regulating the activity"). For an explicit application of the reasonableness test, see Timberlane Lumber Co. v. Bank of America, 549 F.2d 597, 613-14 (9th Cir. 1976).
15. Outlining the history of extraterritorial jurisdiction in Reid v. Covert, 354 U.S. 1 (1957), Justice Frankfurter wrote: "Historians have traced grants of extraterritorial rights as far back as the permission given by Egypt in the 12th or 13th century B.C. to the merchants of Tyre . . . to live under their own law . . . ." Id. at 58 (Frankfurter, J., concurring).
16. Id. at 59.
17. Id. at 60; see also Maier, Resolving Extraterritorial Conflicts, or "There and Back Again," 25 VA. J. INT'L L. 7, 11 (1984) (asserting that with the growth of the nation-state, it was recognized that "a state had absolute authority within its own territory").
18. The Schooner Exch. v. M'Faddon, 11 U.S. (7 Cranch) 116, 136 (1812); see also United States v. Bevans, 16 U.S. (3 Wheat.) 336, 386-87 (1818) (holding that "the jurisdiction of a state is co-extensive with its territory").
19. 140 U.S. 453 (1891).
20. Id. at 464. Justice Holmes reiterated this strictly territorial view in the first case seeking the application of United States antitrust laws abroad, American Banana Co. v. United Fruit Co., 213 U.S. 347 (1909): "It is surprising to hear it argued" that antitrust laws should apply to acts "outside the jurisdiction of the United States and within that of other states." Id. at 355. "'All legislation,'" Justice Holmes noted, "'is prima facie territorial.'" Id. at 357 (quoting Ex parte Blain, 12 Ch. D. 522, 528 (Ch. App. 1879)).
21. See, e.g., Reid v. Covert, 354 U.S. 1, 12 (1957) (applying the Constitution to Americans abroad and dismissing Ross v. McIntyre, 140 U.S. 453 (1891), as "a relic from a different era"); Blackmer v. United States, 284 U.S. 421 (1932) (holding that United States nationals residing abroad may be subpoenaed by United States courts); Cook v. Tait, 265 U.S. 47 (1924) (holding that the income tax is applicable to a United States citizen who had been residing continuously in Mexico and whose entire income derived from real and personal property located in Mexico).
22. The first case to apply United States antitrust laws over foreign parties operating a cartel outside the United States was United States v. Aluminum Co. of America, 148 F.2d 416 (2d Cir. 1945). In justifying the court's decision, Judge Hand argued that "[i]t is settled law . . . that any state may impose liabilities, even upon persons not within its allegiance, for conduct outside its borders that has consequences within its borders which the state reprehends." Id. at 443.
23. RESTATEMENT (THIRD) or FOREIGN RELATIONS LAW § 402 comment g (1987). Thus, terrorist acts, regardless of location, have been brought within the prescriptive reach of United States laws whenever they have caused some harm to American citizens. See 18 U.S.C. § 2331 (1988).
24. Judge Hand was aware that the effects approach, by including remote or speculative effects, threatened unlimited jurisdiction. See Aluminum Co. of Am., 148 F.2d at 443 ("Almost any limitation of the supply of goods in Europe, for example, or in South America may have repercussions in the United States if there is trade between the two."). For example, in Occidental Petroleum Corp. v. Buttes Gas & Oil Co., 331 F. Supp. 92 (C.D. Cal. 1971), aff'd, 461 F.2d 1261 (9th Cir.), cert. denied, 409 U.S. 950 (1972), which involved an international antitrust suit, the court found that the defendants' actions, which were conducted outside the geographic territory of the United States, had sufficient effects within the territory to justify jurisdiction, even though the alleged restraints foreclosed only potential, rather than actual, competition. See id. at 102-03.
25. See, e.g, Boureslan v. Aramco, 892 F.2d 1271 (5th Cir. 1990) (en banc) (refusing to exert jurisdiction over discriminatory conduct against a United States national by a United States corporation abroad).
26. See, e.g., Romero v. International Terminal Operating Co., 358 U.S. 354, 383 (1959) (taking into account "our self-regarding respect for the relevant interests of foreign nations"); Mannington Mills, Inc. v. Congoleum Corp., 595 F.2d 1287, 1296 (3d Cir. 1979) (evoking principles of "foreign policy, reciprocity, comity, and limitations of judicial power"); Timberlane Lumber Co. v. Bank of Am., 549 F.2d 597, 613 (9th Cir. 1976) (holding that the determination of United States jurisdiction should depend on "whether the interests of, and links to, the United States . . . are sufficiently strong, vis-a-vis those of other nations, to justify an assertion of extraterritorial authority"); cf. Maier, Extraterritorial Jurisdiction at a Crossroads: An Intersection Between Public and Private International Law, 76 AM. J. INT'L L. 280, 300 (1982) (describing the Restatement's attempt to balance territorial factors with other concerns in finding extraterritorial jurisdiction).
27. See RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW § 403(2) (1987); see also Low-enfeld, Jurisdiction, Choice of Law, and Conflict Resolution, 4 B.U. INT'L L.J. 91, 93 (1986) (noting that "the exercise of jurisdiction must be reasonable"); supra p, 1274.
28. See RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW § 403(2) (1987); see also Low-enfeld, Jurisdiction, Choice of Law, and Conflict Resolution, 4 B.U. INT'L L.J. 91, 93 (1986) (noting that "the exercise of jurisdiction must be reasonable"); supra p, 1274.
29. In this regard, the difference between the RESTATEMENT (SECOND) OF FOREIGN RELATIONS LAW § 40 (1965) and the current RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW § 403 (1987) is not significant. Both Restatements incorporate a "rule of reason" for jurisdictional determinations. The focus in the earlier Restatement, however, remains more closely wedded to territorial and citizenship concerns; § 40 asserts that a state has the legal authority to prescribe conduct whenever a threshold of contacts is met. According to the earlier Restatement, then, the decision whether or not to assert jurisdiction is of a quasi-discretionary nature: although a state can assert jurisdiction, it should at times refrain from doing so out of comity concerns - in other words, when it would be "unreasonable" to do so. Under the more recent Restatement, the reasonableness of an assertion of jurisdiction determines whether it would be lawful. See RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW § 403(1) (1987).
30. In this regard, the difference between the RESTATEMENT (SECOND) OF FOREIGN RELATIONS LAW § 40 (1965) and the current RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW § 403 (1987) is not significant. Both Restatements incorporate a "rule of reason" for jurisdictional determinations. The focus in the earlier Restatement, however, remains more closely wedded to territorial and citizenship concerns; § 40 asserts that a state has the legal authority to prescribe conduct whenever a threshold of contacts is met. According to the earlier Restatement, then, the decision whether or not to assert jurisdiction is of a quasi-discretionary nature: although a state can assert jurisdiction, it should at times refrain from doing so out of comity concerns - in other words, when it would be "unreasonable" to do so. Under the more recent Restatement, the reasonableness of an assertion of jurisdiction determines whether it would be lawful. See RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW § 403(1) (1987).
31. In this regard, the difference between the RESTATEMENT (SECOND) OF FOREIGN RELATIONS LAW § 40 (1965) and the current RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW § 403 (1987) is not significant. Both Restatements incorporate a "rule of reason" for jurisdictional determinations. The focus in the earlier Restatement, however, remains more closely wedded to territorial and citizenship concerns; § 40 asserts that a state has the legal authority to prescribe conduct whenever a threshold of contacts is met. According to the earlier Restatement, then, the decision whether or not to assert jurisdiction is of a quasi-discretionary nature: although a state can assert jurisdiction, it should at times refrain from doing so out of comity concerns - in other words, when it would be "unreasonable" to do so. Under the more recent Restatement, the reasonableness of an assertion of jurisdiction determines whether it would be lawful. See RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW § 403(1) (1987).
32. See RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW § 403(2) (1987).
33. See id. § 403(2)(a), (b).
34. See id. § 403(2)(c).
35. See id. § 402(3).
36. 345 U.S. 571 (1953).
37. 46 U.S.C. § 688 (1982).
38. Lauritzen, 345 U.S. at 588; see also McQuade v. Compania de Vapores San Antonio, 131 F. Supp. 365 (S.D.N.Y. 1955) (asserting that signing articles in an American port does not bring American law into the case). But see Tselentis v. Michalinos Maritime & Commercial Co., 104 F. Supp. 942 (S.D.N.Y. 1952) (asserting that signing a contract on a foreign ship in an American port brings American law into the case).
39. Lauritzen, 345 U.S. at 582; see also Romero v. International Terminal Operating Co., 358 U.S. 354, 384 (1959) (noting the need to assess "the effect upon our interests of our treatment of the legitimate interests of foreign nations").
40. See Maier, supra note 25, at 307 (noting that a nation has an interest in "nurturing a legal regime that would permit the effective operation of international maritime commerce").
41. See, e.g., Benz v. Compania Naviera Hidalgo, S.A., 353 U.S. 138 (1957). For a discussion of the case, see pp. 1291-92 below.
42. 372 U.S. 10 (1963).
43. 29 U.S.C. §§ 151-168 (1982).
44. See McCulloch, 372 U.S. at 12-13.
45. Id. at 21; see also Neilson v. Rhine Shipping Co., 248 U.S. 205, 211-13 (1918) (holding that because the local custom of the country in which the contract was signed conflicted with the American law, the latter would not apply).
46. Romero v. International Terminal Operating Co., 358 U.S. 354, 388-89 (1959) (Black, J., dissenting).
47. Some commentators and judges have argued that courts are not the proper forums in which to weigh the interests of different nations and that judges should therefore systematically search for and defer to congressional intent. For example, in a recent landmark opinion, Judge Wilkey claimed that courts are "ill-equipped to 'balance the vital national interests [of the various countries] to determine which interests predominate.'" Laker Airways Ltd. v. Sabena, Belgian World Airlines, 731 F.2d 909, 950 (D.C. Cir. 1984) (quoting In re Uranium Antitrust Litig., 480 F. Supp. 1138, 1148 (N.D. Ill. 1978)). Judge Wilkey's opinion has sparked controversy over the wisdom and possibility of judicial balancing of national interest. See, e.g., Maier, supra note 16. Commentators who disagree with Judge Wilkey generally assert that courts have no choice but to engage in such evaluations and that they do so anyway. See, e.g., Brilmayer, The Extraterritorial Application of American Law: A Methodological and Constitutional Appraisal, 50 LAW & CONTEMP. PROBS. 11, 16-17 (1987). Faced with congressional silence regarding the extraterritorial application of laws, courts often invoke the presumption against extraterritoriality - a judicial doctrine holding that, absent a congressional intent to the contrary, statutes are to be construed as having no extraterritorial application. See, e.g., Argentine Republic v. Amerada Hess Shipping Corp., 109 S. Ct. 683, 691 (1989); Foley Bros. v. Filardo, 336 U.S. 281, 285 (1949). However, this presumption has not put an end to the debate: courts wishing to justify extraterritorial jurisdiction have succeeded in establishing intent through other means of statutory construction, such as imputing intent in light of unexpected circumstances. Consider, for example, the Second Circuit's comments in Bersch v. Drexel Firestone, Inc., 519 F.2d 974 (2d Cir.), cert. denied, 423 U.S. 1018 (1975): We freely acknowledge that if we were asked to point to language in the statutes, or even in the legislative history, that compelled these conclusions, we would be unable to respond. . . . Our conclusions rest on case law and commentary concerning the application of the securities laws and other statutes to situations with foreign elements and on our best judgment as to what Congress would have wished if these problems had occurred to it. Id. at 993 (footnote omitted); see also Brilmayer, supra, at 17 (arguing that "[t]he result [of jurisdictional determinations] is a peculiar combination of normative reasoning and deference to Congress, a normative view which is attributed to Congress even though it does not really express an actual congressional choice").
48. Some commentators and judges have argued that courts are not the proper forums in which to weigh the interests of different nations and that judges should therefore systematically search for and defer to congressional intent. For example, in a recent landmark opinion, Judge Wilkey claimed that courts are "ill-equipped to 'balance the vital national interests [of the various countries] to determine which interests predominate.'" Laker Airways Ltd. v. Sabena, Belgian World Airlines, 731 F.2d 909, 950 (D.C. Cir. 1984) (quoting In re Uranium Antitrust Litig., 480 F. Supp. 1138, 1148 (N.D. Ill. 1978)). Judge Wilkey's opinion has sparked controversy over the wisdom and possibility of judicial balancing of national interest. See, e.g., Maier, supra note 16. Commentators who disagree with Judge Wilkey generally assert that courts have no choice but to engage in such evaluations and that they do so anyway. See, e.g., Brilmayer, The Extraterritorial Application of American Law: A Methodological and Constitutional Appraisal, 50 LAW & CONTEMP. PROBS. 11, 16-17 (1987). Faced with congressional silence regarding the extraterritorial application of laws, courts often invoke the presumption against extraterritoriality - a judicial doctrine holding that, absent a congressional intent to the contrary, statutes are to be construed as having no extraterritorial application. See, e.g., Argentine Republic v. Amerada Hess Shipping Corp., 109 S. Ct. 683, 691 (1989); Foley Bros. v. Filardo, 336 U.S. 281, 285 (1949). However, this presumption has not put an end to the debate: courts wishing to justify extraterritorial jurisdiction have succeeded in establishing intent through other means of statutory construction, such as imputing intent in light of unexpected circumstances. Consider, for example, the Second Circuit's comments in Bersch v. Drexel Firestone, Inc., 519 F.2d 974 (2d Cir.), cert. denied, 423 U.S. 1018 (1975): We freely acknowledge that if we were asked to point to language in the statutes, or even in the legislative history, that compelled these conclusions, we would be unable to respond. . . . Our conclusions rest on case law and commentary concerning the application of the securities laws and other statutes to situations with foreign elements and on our best judgment as to what Congress would have wished if these problems had occurred to it. Id. at 993 (footnote omitted); see also Brilmayer, supra, at 17 (arguing that "[t]he result [of jurisdictional determinations] is a peculiar combination of normative reasoning and deference to Congress, a normative view which is attributed to Congress even though it does not really express an actual congressional choice").
49. Some commentators and judges have argued that courts are not the proper forums in which to weigh the interests of different nations and that judges should therefore systematically search for and defer to congressional intent. For example, in a recent landmark opinion, Judge Wilkey claimed that courts are "ill-equipped to 'balance the vital national interests [of the various countries] to determine which interests predominate.'" Laker Airways Ltd. v. Sabena, Belgian World Airlines, 731 F.2d 909, 950 (D.C. Cir. 1984) (quoting In re Uranium Antitrust Litig., 480 F. Supp. 1138, 1148 (N.D. Ill. 1978)). Judge Wilkey's opinion has sparked controversy over the wisdom and possibility of judicial balancing of national interest. See, e.g., Maier, supra note 16. Commentators who disagree with Judge Wilkey generally assert that courts have no choice but to engage in such evaluations and that they do so anyway. See, e.g., Brilmayer, The Extraterritorial Application of American Law: A Methodological and Constitutional Appraisal, 50 LAW & CONTEMP. PROBS. 11, 16-17 (1987). Faced with congressional silence regarding the extraterritorial application of laws, courts often invoke the presumption against extraterritoriality - a judicial doctrine holding that, absent a congressional intent to the contrary, statutes are to be construed as having no extraterritorial application. See, e.g., Argentine Republic v. Amerada Hess Shipping Corp., 109 S. Ct. 683, 691 (1989); Foley Bros. v. Filardo, 336 U.S. 281, 285 (1949). However, this presumption has not put an end to the debate: courts wishing to justify extraterritorial jurisdiction have succeeded in establishing intent through other means of statutory construction, such as imputing intent in light of unexpected circumstances. Consider, for example, the Second Circuit's comments in Bersch v. Drexel Firestone, Inc., 519 F.2d 974 (2d Cir.), cert. denied, 423 U.S. 1018 (1975): We freely acknowledge that if we were asked to point to language in the statutes, or even in the legislative history, that compelled these conclusions, we would be unable to respond. . . . Our conclusions rest on case law and commentary concerning the application of the securities laws and other statutes to situations with foreign elements and on our best judgment as to what Congress would have wished if these problems had occurred to it. Id. at 993 (footnote omitted); see also Brilmayer, supra, at 17 (arguing that "[t]he result [of jurisdictional determinations] is a peculiar combination of normative reasoning and deference to Congress, a normative view which is attributed to Congress even though it does not really express an actual congressional choice").
50. See generally RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW § 403 reporters' note 2 (1987) (discussing limitations placed by courts on the exercise of United States jurisdiction pursuant to principles of reasonableness).
51. 653 F. Supp. 629 (S.D. Tex. 1987), aff'd, 857 F.2d 1014 (5th Cir.), reh'g granted, 863 F.2d 8 (5th Cir. 1988), aff'd en banc, 892 F.2d 1271 (5th Cir. 1990).
52. See id. at 630; see also supra note 43 (discussing the presumption against extraterritoriality).
53. Boureslan, 653 F. Supp. at 631.
54. Boureslan v. Aramco, 892 F.2d 1271, 1272 (5th Cir. 1990) (en banc). The Fifth Circuit also related the presumption against extraterritoriality to the respect for state sovereignty. See id.
55. See id. at 1277 (King, J., dissenting); Boureslan v. Aramco, 857 F.2d 1014, 1034 (5th Cir.) (King, J., dissenting), reh'g granted, 863 F.2d 8 (5th Cir. 1988), aff'd en banc, 892 F.2d 1271 (5th Cir. 1990).
56. 892 F.2d at 1279 (King, J., dissenting); 857 F.2d at 1028 (King, J., dissenting).
57. 857 F.sd at 1028.
58. 660 F. Supp. 1528 (N.D. Ala. 1987), rev'd sub nom. Patel v. Quality Inn S., 846 F.2d 700 (11th Cir. 1988), cert. denied, 109 S. Ct. 1120 (1989).
59. 29 U.S.C. §§ 201-219 (1982).
60. Patel, 660 F. Supp. at 1531.
61. Patel v. Quality Inn S., 846 F.2d 700, 704-05 (11th Cir. 1988), cert. denied, 109 S. Ct. 1120 (1989). For a discussion of how reduced federal protection for foreign migrant workers has made them ready targets of abuse, see Note, Overcoming Mootness in the H-2A Temporary Foreign Farmworker Program, 78 GEO. L.J. 197 (1989).
62. 630 F.2d 876 (2d Cir. 1980).
63. 28 U.S.C. § 1350 (1982) (providing that district courts shall have original jurisdiction over civil actions "by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States").
64. Filartiga, 630 F.2d at 890. The Restatement allows universal jurisdiction "for certain offenses recognized . . . as of universal concern, such as piracy, slave trade." RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW § 404 (1987).
65. 726 F.2d 774 (D.C. Cir. 1984) (per curiam), cert. denied, 470 U.S. 1003 (1985).
66. Judge Bork argued that the plaintiffs had no cause of action, see id. at 801, 805 (Bork, J., concurring), while Judge Robb found the claim nonjusticiable because it involved the international status of terrorist acts and thus constituted a "political question" within the purview of the executive and legislative branches, see id. at 823-25 (Robb, J., concurring). Two of the three judges found that there was a lack of subject matter jurisdiction. See id. at 776 (Edwards, J., concurring); id. at 823-25 (Robb, J., concurring).
67. Id. at 821 (Bork, J., concurring); see also id. at 826 n.5 (Robb, J., concurring) (arguing that "ad hoc intervention by courts into international affairs may very well rebound to the decisive disadvantage of the nation").
68. 58 U.S.L.W. 4263 (U.S. Feb. 28, 1990).
69. Id. at 4267.
70. Id. at 4270 (Brennan, J., dissenting).
71. Id.
72. Id.
73. 421 F. Supp. 63 (D.D.C. 1976), vacated sub nom. Sierra Club v. Adams, 578 F.2d 389 (D.C. Cir. 1978).
74. 42 U.S.C. §§ 4321-4370a (1982 & Supp. V 1987). NEPA requires "all agencies of the Federal government [to] . . . include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official." Id. § 4332(2)(C).
75. See Coleman, 421 F. Supp. at 65 ("[T]he most significant environmental problem related to the proposed highway is the transmission of aftosa . . . into North America.").
76. Id. at 66.
77. Sierra Club v. Adams, 578 F.2d 389, 391 n.14 (D.C. Cir. 1978). The District of Columbia Circuit "assume[d], without deciding, that NEPA is fully applicable" in light of its conclusion that the agencies had complied with all NEPA requirements. Id.
78. The modern approach to jurisdictional issues is based largely on international legal principles of state sovereignty. See I. BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 287 (3d ed. 1979) (asserting that "[t]he principal corollaries of the sovereignty and equality of states are: (1) a jurisdiction, prima facie exclusive, over a territory and the permanent population living there; (2) a duty of non-intervention in the area of exclusive jurisdiction of other states" (emphasis added) (footnotes omitted)); see also Gerber, Beyond Balancing: International Law Restraints on the Reach of National Laws, 10 YALE J. INT'L L. 185, 209-12 (1984) (invoking the notion of "noninterference" in the affairs of another state as a principle limiting the reach of extraterritorial jurisdiction).
79. The modern approach to jurisdictional issues is based largely on international legal principles of state sovereignty. See I. BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 287 (3d ed. 1979) (asserting that "[t]he principal corollaries of the sovereignty and equality of states are: (1) a jurisdiction, prima facie exclusive, over a territory and the permanent population living there; (2) a duty of non-intervention in the area of exclusive jurisdiction of other states" (emphasis added) (footnotes omitted)); see also Gerber, Beyond Balancing: International Law Restraints on the Reach of National Laws, 10 YALE J. INT'L L. 185, 209-12 (1984) (invoking the notion of "noninterference" in the affairs of another state as a principle limiting the reach of extraterritorial jurisdiction).
80. In recent years, a number of historians and political scientists have explored the emergence of the concept of a bounded state exercising national territorial sovereignty. See, e.g., P. ALLIES, L'INVENTION DU TERRITOIRE (1972); N. POULANTZAS, STATE, POWER, SOCIALISM (1980); P. SAHLINS, supra note 2; 1 TERRITOIRES: TERRITOIRE ET TERRITORIALITÉ (Ecole Normale Supérieure ed. 1983).
81. In recent years, a number of historians and political scientists have explored the emergence of the concept of a bounded state exercising national territorial sovereignty. See, e.g., P. ALLIES, L'INVENTION DU TERRITOIRE (1972); N. POULANTZAS, STATE, POWER, SOCIALISM (1980); P. SAHLINS, supra note 2; 1 TERRITOIRES: TERRITOIRE ET TERRITORIALITÉ (Ecole Normale Supérieure ed. 1983).
82. In recent years, a number of historians and political scientists have explored the emergence of the concept of a bounded state exercising national territorial sovereignty. See, e.g., P. ALLIES, L'INVENTION DU TERRITOIRE (1972); N. POULANTZAS, STATE, POWER, SOCIALISM (1980); P. SAHLINS, supra note 2; 1 TERRITOIRES: TERRITOIRE ET TERRITORIALITÉ (Ecole Normale Supérieure ed. 1983).
83. In recent years, a number of historians and political scientists have explored the emergence of the concept of a bounded state exercising national territorial sovereignty. See, e.g., P. ALLIES, L'INVENTION DU TERRITOIRE (1972); N. POULANTZAS, STATE, POWER, SOCIALISM (1980); P. SAHLINS, supra note 2; 1 TERRITOIRES: TERRITOIRE ET TERRITORIALITÉ (Ecole Normale Supérieure ed. 1983).
84. Describing this classical outlook, Karl Deutsch wrote: "a nationality is a people pressing to acquire a measure of effective control over the behavior of its members." Once this has been achieved, a nationality "often considers itself a nation and is so considered by others." Thus, it is possible today to speak of the Kurd or Palestinian nations. "Finally, if their nationalistic members are successful, and a new or old state organization is put into their service, then at last the nation has become sovereign, and a nation-state has come into being." K. DEUTSCH, NATIONALISM AND SOCIAL COMMUNICATION 78-79 (1953);
85. see also F. HERTZ, NATIONALITY IN HISTORY & POLITICS 11-15 (1944) (discussing various definitions of nations and national aspirations). The notion of the nation as natural entity found its political expression during the French Revolution.
86. See E. SIEVES, QU'EST-CE QUE LE TIERS ETAT? 180 (R. Zapperi ann. ed. 1970) (2d ed. 1789) (noting that "[t]he Nation exists before all else, it is at the origin of all else").
87. There is little wonder, in this respect, that the emergence of the nation-state as a politically potent concept historically coincided with the French Revolution. The Revolution, obsessed with threats of real or imagined plots and conspiracies, unhesitatingly equated the Jacobin state with the nation, enemies of the one becoming ipso facto enemies of the other. See generally F. FURET, INTERPRETING THE FRENCH REVOLUTION (1981) (rethinking the Revolution in terms of a metamorphosis in the realm of political discourse).
88. 339 U.S. 763 (1950).
89. Id. at 769.
90. Id.
91. Id. at 771; see also Jean v. Nelson, 727 F.2d 957 (11th Cir. 1984) (en banc), aff'd, 472 U.S. 846 (1985). Jean involved a class action by Haitian aliens who were detained upon arrival in Florida. In holding that the fifth amendment does not protect unadmitted aliens against discriminatory treatment, the court asserted that: Any analysis of the constitutional rights of aliens in the immigration context must begin by taking note of the fundamental distinction between the legal status of excludable or unadmitted aliens and aliens who have succeeded in effecting an 'entry' into the United States, even if their presence here is completely illegal. Id. at 967.
92. Johnson, 339 U.S. at 769.
93. Id. at 772. Resident alien enemies, according to this framework, "are entitled only to judicial hearing to determine [whether] they . . . are really alien enemies. When that appears, those resident here may be deprived of liberty by Executive action without hearing." Id. at 784 (citation omitted); cf. Korematsu v. United States, 323 U.S. 214, 223 (1944) (upholding a military order excluding Americans of Japanese descent from the West Coast during World War II).
94. 23 U.S. (10 Wheat.) 66 (1825).
95. See id. at 67.
96. See G. WHITE, THE HISTORY OF THE SUPREME COURT OF THE UNITED STATES: THE MARSHALL COURT AND CULTURAL CHANGE, 1815-1835, at 691 (1988).
97. Id.
98. 26 F. Cas. 832 (C.C.D. Mass. 1822) (No. 15,551).
99. See id. at 847.
100. The Antelope, 23 U.S. (10 Wheat.) at 115.
101. See id. at 69.
102. See G. WHITE, supra note 84, at 698-99. The Supreme Court rejected the Portuguese claim and significantly reduced the number of Africans considered to be "Spanish." See The Antelope, 23 U.S. (10 Wheat.) at 129-32.
103. See G. WHITE, supra note 84, at 701.
104. Cf. Minow, The Supreme Court, 1986 Term - Foreword: Justice Engendered, 101 HARV. L. REV. 10, 70-71 (1987) (describing the categorization of Mexicans as "white" and of Chinese as "Indian" by California authorities at the turn of the century as "arbitrary" and as demonstrating a "striking inability to reshape . . . categories for people who did not fit").
105. 336 U.S. 281 (1949).
106. See id. at 286.
107. Id. at 289. Ironically, an analogous oddity was of no concern to the district court in United States v. Daniszewski, 380 F. Supp. 113 (E.D.N.Y. 1974). In Daniszewski, the defendant, a United States citizen, was charged with distributing heroin with the intention that it be unlawfully imported into the United States. All of the defendant's conduct had occurred outside the United States. The defendant objected to the extraterritorial application of the criminal statute, arguing that, as in Foley Bros., it should not be applied to him if it would not be valid with respect to nonresident aliens. Rejecting this challenge, the court reasoned that: [The] defendant cannot raise the possible invalidity [of the statute] as to non-resident aliens, in the absence, certainly, of a showing, not here possible, that the statutory scheme would be so wholly frustrated if it could not validly apply to aliens that, had that been known, it would not have been enacted. Id. at 116. The court's conclusion, however, leaves open whether, and in what manner, the application of the eight-hour law to the same aliens would "wholly frustrate" its purpose.
108. Foley Bros., 336 U.S. at 286.
109. See J. WHITE, HERACLES' Bow 175 (1985); Cole, Thoughts from the Land of And, 39 MERCER L. REV. 907, 921-25 (1988) (describing language as determining what is in the world).
110. See J. WHITE, HERACLES' Bow 175 (1985); Cole, Thoughts from the Land of And, 39 MERCER L. REV. 907, 921-25 (1988) (describing language as determining what is in the world).
111. A. COHEN, THE SYMBOLIC CONSTRUCTION OK COMMUNITY 73 (1985). Cohen further argues that: [W]hen a position is stated On behalf of a community - 'we want . . .' 'we think . . ." - it implies a generality of view tantamount to the expression of sameness, of equality. . . . Such general statements of position, if not exactly fictions, are often sufficient distortions of individuals' aspirations that they would not pass within the community. However, the formulation of such general positions for communication to another party often also feeds back into the community to inform its sense of self, and thereby embellish its symbolic boundaries. Id. at 35 (emphasis in original).
112. See Cover, The Supreme Court, 1982 Term - Foreword: Nomos and Narrative, 97 HARV. L. REV. 1, 16 (1983) (stating that the "problem of the multiplicity of meaning" leads to an "imperial mode of world maintenance" through the "institutionalization of norms"); Strong, Language and Nihilism: Nietzsche's Critique of Epistemology, in LANGUAGE AND POLITICS 81, 83 (M. Shapiro ed. 1984) (arguing that "it is not that we are bound by our language, but that we are in effect defined by our chains").
113. See Cover, The Supreme Court, 1982 Term - Foreword: Nomos and Narrative, 97 HARV. L. REV. 1, 16 (1983) (stating that the "problem of the multiplicity of meaning" leads to an "imperial mode of world maintenance" through the "institutionalization of norms"); Strong, Language and Nihilism: Nietzsche's Critique of Epistemology, in LANGUAGE AND POLITICS 81, 83 (M. Shapiro ed. 1984) (arguing that "it is not that we are bound by our language, but that we are in effect defined by our chains").
114. Cf. B. ANDERSON, IMAGINED COMMUNITIES 15 (1983) (proposing the definition of the nation as "an imagined political community"). "It is imagined because the members of even the smallest nation will never know most of their fellow-members, meet them, or even hear of them, yet in the minds of each lives the image of their communion." Id. (emphasis in original).
115. P. BOURDIEU, CE QUE PARLER VEUT DIRE 137 (1982); see also Minow, When Difference Has Its Home: Group Homes for the Mentally Retarded, Equal Protection and Legal Treatment of Difference, 22 HARV. C.R.-C.L. L. REV. 111, 130 & n.67 (1987) (exploring the social meanings that exclusion and isolation carry in a community and suggesting that the act of naming cuts off or denies relationships).
116. P. BOURDIEU, CE QUE PARLER VEUT DIRE 137 (1982); see also Minow, When Difference Has Its Home: Group Homes for the Mentally Retarded, Equal Protection and Legal Treatment of Difference, 22 HARV. C.R.-C.L. L. REV. 111, 130 & n.67 (1987) (exploring the social meanings that exclusion and isolation carry in a community and suggesting that the act of naming cuts off or denies relationships).
117. P. BOURDIEU, supra note 101, at 153. For instance, in the United States, shared characteristics of nationhood often pale in comparison with the links forged by other communities - Latinos and African-Americans, women, Indians, etc. For a discussion of this pluralistic, multicultural, and multiracial dimension, see generally COMMUNITY IN AMERICA (C. Reynolds & R. Norman eds. 1988).
118. P. BOURDIEU, supra note 101, at 153. For instance, in the United States, shared characteristics of nationhood often pale in comparison with the links forged by other communities - Latinos and African-Americans, women, Indians, etc. For a discussion of this pluralistic, multicultural, and multiracial dimension, see generally COMMUNITY IN AMERICA (C. Reynolds & R. Norman eds. 1988).
119. 353 U.S. 138 (1957).
120. See Benz v. Compania Naviera Hidalgo, S.A., 233 F.2d 62, 63-64 (9th Cir. 1956), aff'd, 353 U.S. 138 (1957).
121. See Benz v. Compania Naviera Hidalgo, S.A., 205 F.2d 944, 945-46 (9th Cir. 1953).
122. 29 U.S.C. §§ 151-168 (1982).
123. See Benz, 233 F.2d at 64-65.
124. Benz, 353 U.S. at 141.
125. See Riviera Case Goes to Court, The Oregonian, Sept. 16, 1952, at 8, col. 1 ("[The striking crewmen] subsisted on food brought them by friendly longshoremen, and in part on food purchased from a strike fund of $77 donated by longshoremen and sailors on an American vessel, the Cotton State, berthed nearby.").
126. The legal expenses were not insignificant. Picketing unions were faced with potential damage awards of $1500 a day. See The Oregonian, Dec. 12, 1952, at 28, col. 2; see also Last Riviera Crew Freed on Bail, The Oregonian, October 25, 1952, at 4, col. 1 (reporting that "[s]even members of the crew of the Riviera . . . have been released on $500 bail each provided from funds raised by Portland unions through the efforts of the Sailors Union of the Pacific" and that "the unions are contributing generously to a fund to take care of the striking crewmen and their families").
127. The legal expenses were not insignificant. Picketing unions were faced with potential damage awards of $1500 a day. See The Oregonian, Dec. 12, 1952, at 28, col. 2; see also Last Riviera Crew Freed on Bail, The Oregonian, October 25, 1952, at 4, col. 1 (reporting that "[s]even members of the crew of the Riviera . . . have been released on $500 bail each provided from funds raised by Portland unions through the efforts of the Sailors Union of the Pacific" and that "the unions are contributing generously to a fund to take care of the striking crewmen and their families").
128. Record at 166-67, Benz (No. 56-204).
129. Delgado, Storytelling for Oppositionists and Others: A Plea for Narrative, 87 MICH. L. REV. 2411, 2412 (1989).
130. See Scheppele, Foreword: Telling Stories, 87 MICH. L. REV. 2073, 2080 (1989) ("[T]here are few things more disempowering in law than having one's own self-believed story rejected, when rules of law (however fair in the abstract) are applied to facts that are not one's own, when legal judgments proceed from a description of one's own world that one does not recognize."). In recent years, commentators have heralded alternative narratives of outgroups as a means of psychic preservation, a method of lessening their own subordination, as well as a means of disturbing the status quo. See, e.g., Delgado, supra note 112, at 2412 (stating that the "narratives told by the ingroup remind it of its identity in relation to outgroups, and provide it with a form of shared reality in which its own superior position is seen as natural"); see also D. BELL, AND WE ARE NOT SAVED (1987) (using the narrative device to address racial discrimination); Estrich, Rape, 95 YALE L.J. 1087 (1986) (employing narrative to explore the sexist discourse of rape laws); MacKinnon, Feminism, Marxism, Method, and the State: An Agenda for Theory, 7 SIGNS 515 (1982) (urging the use of alternative narratives to raise consciousness and expose women's internalized feelings of powerlessness).
131. See Scheppele, Foreword: Telling Stories, 87 MICH. L. REV. 2073, 2080 (1989) ("[T]here are few things more disempowering in law than having one's own self-believed story rejected, when rules of law (however fair in the abstract) are applied to facts that are not one's own, when legal judgments proceed from a description of one's own world that one does not recognize."). In recent years, commentators have heralded alternative narratives of outgroups as a means of psychic preservation, a method of lessening their own subordination, as well as a means of disturbing the status quo. See, e.g., Delgado, supra note 112, at 2412 (stating that the "narratives told by the ingroup remind it of its identity in relation to outgroups, and provide it with a form of shared reality in which its own superior position is seen as natural"); see also D. BELL, AND WE ARE NOT SAVED (1987) (using the narrative device to address racial discrimination); Estrich, Rape, 95 YALE L.J. 1087 (1986) (employing narrative to explore the sexist discourse of rape laws); MacKinnon, Feminism, Marxism, Method, and the State: An Agenda for Theory, 7 SIGNS 515 (1982) (urging the use of alternative narratives to raise consciousness and expose women's internalized feelings of powerlessness).
132. See Scheppele, Foreword: Telling Stories, 87 MICH. L. REV. 2073, 2080 (1989) ("[T]here are few things more disempowering in law than having one's own self-believed story rejected, when rules of law (however fair in the abstract) are applied to facts that are not one's own, when legal judgments proceed from a description of one's own world that one does not recognize."). In recent years, commentators have heralded alternative narratives of outgroups as a means of psychic preservation, a method of lessening their own subordination, as well as a means of disturbing the status quo. See, e.g., Delgado, supra note 112, at 2412 (stating that the "narratives told by the ingroup remind it of its identity in relation to outgroups, and provide it with a form of shared reality in which its own superior position is seen as natural"); see also D. BELL, AND WE ARE NOT SAVED (1987) (using the narrative device to address racial discrimination); Estrich, Rape, 95 YALE L.J. 1087 (1986) (employing narrative to explore the sexist discourse of rape laws); MacKinnon, Feminism, Marxism, Method, and the State: An Agenda for Theory, 7 SIGNS 515 (1982) (urging the use of alternative narratives to raise consciousness and expose women's internalized feelings of powerlessness).
133. See Scheppele, Foreword: Telling Stories, 87 MICH. L. REV. 2073, 2080 (1989) ("[T]here are few things more disempowering in law than having one's own self-believed story rejected, when rules of law (however fair in the abstract) are applied to facts that are not one's own, when legal judgments proceed from a description of one's own world that one does not recognize."). In recent years, commentators have heralded alternative narratives of outgroups as a means of psychic preservation, a method of lessening their own subordination, as well as a means of disturbing the status quo. See, e.g., Delgado, supra note 112, at 2412 (stating that the "narratives told by the ingroup remind it of its identity in relation to outgroups, and provide it with a form of shared reality in which its own superior position is seen as natural"); see also D. BELL, AND WE ARE NOT SAVED (1987) (using the narrative device to address racial discrimination); Estrich, Rape, 95 YALE L.J. 1087 (1986) (employing narrative to explore the sexist discourse of rape laws); MacKinnon, Feminism, Marxism, Method, and the State: An Agenda for Theory, 7 SIGNS 515 (1982) (urging the use of alternative narratives to raise consciousness and expose women's internalized feelings of powerlessness).
134. See Scheppele, Foreword: Telling Stories, 87 MICH. L. REV. 2073, 2080 (1989) ("[T]here are few things more disempowering in law than having one's own self-believed story rejected, when rules of law (however fair in the abstract) are applied to facts that are not one's own, when legal judgments proceed from a description of one's own world that one does not recognize."). In recent years, commentators have heralded alternative narratives of outgroups as a means of psychic preservation, a method of lessening their own subordination, as well as a means of disturbing the status quo. See, e.g., Delgado, supra note 112, at 2412 (stating that the "narratives told by the ingroup remind it of its identity in relation to outgroups, and provide it with a form of shared reality in which its own superior position is seen as natural"); see also D. BELL, AND WE ARE NOT SAVED (1987) (using the narrative device to address racial discrimination); Estrich, Rape, 95 YALE L.J. 1087 (1986) (employing narrative to explore the sexist discourse of rape laws); MacKinnon, Feminism, Marxism, Method, and the State: An Agenda for Theory, 7 SIGNS 515 (1982) (urging the use of alternative narratives to raise consciousness and expose women's internalized feelings of powerlessness).
135. The language of collective interests has led to the exclusion of certain groups: [The] "we" constructed in legal accounts has a distinctive selectivity, one that tends to adopt the stories of those who are white and privileged and male and lawyers, while casting aside the stories and experiences of people of color, of the poor, of women, of those who cannot describe their experiences in the language of the law. Scheppele, supra note 113, at 2083-84.
136. See Bell & Bansal, The Republican Revival and Racial Politics, 97 YALE L.J. 1609, 1610-13 & n.6 (1988).
137. See generally C. GILLIGAN, IN A DIFFERENT VOICE (1982) (discussing the different, and often ignored, perspectives of women); C. MACKINNON, Desire and Power, in FEMINISM UNMODIFIED 46 (1987) (discussing the subjugation of women).
138. See generally C. GILLIGAN, IN A DIFFERENT VOICE (1982) (discussing the different, and often ignored, perspectives of women); C. MACKINNON, Desire and Power, in FEMINISM UNMODIFIED 46 (1987) (discussing the subjugation of women).
139. See United States v. Aluminum Co. of Am., 148 F.2d 416, 443-44 (2d Cir. 1945) ("[A]ny state may impose liabilities, even upon persons not within its allegiance, for conduct outside its borders that has consequences within its borders . . . ."). See generally Comment, Shortening the Long Arm of American Antitrust Jurisdiction: Extraterritoriality and the Foreign Blocking Statutes, 28 LOY. L. REV. 213 (1982) (discussing United States antitrust laws). Antitrust cases have rarely been dismissed for lack of jurisdiction. See Simon & Waller, A Theory of Economic Sovereignty: An Alternative to Extraterritorial Jurisdictional Disputes, 12 STAN. J. INT'L L. 337, 339 (1986).
140. See United States v. Aluminum Co. of Am., 148 F.2d 416, 443-44 (2d Cir. 1945) ("[A]ny state may impose liabilities, even upon persons not within its allegiance, for conduct outside its borders that has consequences within its borders . . . ."). See generally Comment, Shortening the Long Arm of American Antitrust Jurisdiction: Extraterritoriality and the Foreign Blocking Statutes, 28 LOY. L. REV. 213 (1982) (discussing United States antitrust laws). Antitrust cases have rarely been dismissed for lack of jurisdiction. See Simon & Waller, A Theory of Economic Sovereignty: An Alternative to Extraterritorial Jurisdictional Disputes, 12 STAN. J. INT'L L. 337, 339 (1986).
141. See generally Note, Offshore Funds and Rule 10b-5: An International Law Approach to Extraterritorial Jurisdiction Under the Securities Exchange Act of 1034, 8 FORDHAM INT'L L.J. 396 (1985) (discussing the reach of United States securities laws).
142. See, e.g., Kleindienst v. Mandel, 408 U.S. 753, 762 (1972) (noting that an alien has "no constitutional right of entry to this country," and declining to consider the possibility that an alien who wishes to speak in the United States may have first amendment rights); Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953) (holding that the detention of an alien without a hearing did not constitute a denial of due process); United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950) (holding that the alien wife of a citizen has no constitutional right to enter the United States).
143. See, e.g., Boureslan v. Aramco, 857 F.2d 1014 (5th Cir.), reh'g granted, 863 F.2d 8 (5th Cir. 1988), aff'd en banc, 892 F.2d 1271 (5th Cir. 1990).
144. 345 U.S. 206 (1953).
145. 282 U.S. 481 (1931).
146. See Mezei, 345 U.S. at 207-09.
147. See Russian Fleet, 282 U.S. at 486-87.
148. Id. at 489.
149. Mezei, 345 U.S. at 212 (quoting United States et rel. Knauff v. Shaughnessy, 338 U.S. 537, 544 (1950)).
150. See Russian Fleet, 282 U.S. at 489.
151. Id. (emphasis added).
152. Mezei, 345 U.S. at 214. Mezei, like most cases involving the regulation of aliens, was infused throughout with an abiding sense of national security. Clearly, the domestic and international contexts surrounding the case, in particular McCarthyism and the Korean War, had much to do with its outcome. The Court thus referred to the President's power "to impose additional restrictions on aliens entering or leaving the United States during periods of international tension and strife," and to the "present emergency." Id. at 210. As one commentator has perceptively remarked, the Court chose to approach the question of aliens' rights in relation to the congressional power to regulate immigration "from the perspective of the conduct of foreign affairs. Just as the United States must possess the power to protect itself against invading armies, so, too, it must be able to defend itself against 'vast hordes of [foreign] people crowding in upon us.'" Aleinikoff, Federal Regulation of Aliens and the Constitution, 83 AM. J. INT'L L. 862, 863 (1989) (quoting Chae Chan Ping v. United States (Chinese Exclusion Case), 130 U.S. 581, 606 (1889)). Indeed, in Jay v. Boyd, 351 U.S. 345 (1956), the Court invoked Mezei as essentially a "public interest" and public security case rather than as a case involving the rights of an alien who seeks to enter the United States. See id. at 358-59; see also Jean v. Nelson, 472 U.S. 846, 879 (1985) (Marshall, J., dissenting) (characterizing the Court's decision in Mezei as a "willingness to defer to the Executive on national security matters in the midst of the Cold War"). Such a view of the cases dealing with rights of aliens, by "seeing the immigration power as an aspect of international relations[,] suggest[s] a very limited - or nonexistent - role for the courts." Aleinikoff, supra, at 864.
153. Mezei, 345 U.S. at 214. Mezei, like most cases involving the regulation of aliens, was infused throughout with an abiding sense of national security. Clearly, the domestic and international contexts surrounding the case, in particular McCarthyism and the Korean War, had much to do with its outcome. The Court thus referred to the President's power "to impose additional restrictions on aliens entering or leaving the United States during periods of international tension and strife," and to the "present emergency." Id. at 210. As one commentator has perceptively remarked, the Court chose to approach the question of aliens' rights in relation to the congressional power to regulate immigration "from the perspective of the conduct of foreign affairs. Just as the United States must possess the power to protect itself against invading armies, so, too, it must be able to defend itself against 'vast hordes of [foreign] people crowding in upon us.'" Aleinikoff, Federal Regulation of Aliens and the Constitution, 83 AM. J. INT'L L. 862, 863 (1989) (quoting Chae Chan Ping v. United States (Chinese Exclusion Case), 130 U.S. 581, 606 (1889)). Indeed, in Jay v. Boyd, 351 U.S. 345 (1956), the Court invoked Mezei as essentially a "public interest" and public security case rather than as a case involving the rights of an alien who seeks to enter the United States. See id. at 358-59; see also Jean v. Nelson, 472 U.S. 846, 879 (1985) (Marshall, J., dissenting) (characterizing the Court's decision in Mezei as a "willingness to defer to the Executive on national security matters in the midst of the Cold War"). Such a view of the cases dealing with rights of aliens, by "seeing the immigration power as an aspect of international relations[,] suggest[s] a very limited - or nonexistent - role for the courts." Aleinikoff, supra, at 864.
154. Jean v. Nelson, 472 U.S. 846, 874 (1985) (Marshall, J., dissenting).
155. See supra text accompanying notes 6-9.
156. See Chua Han Mow v. United States, 730 F.2d 1308, 1311-13 (9th Cir. 1984).
157. See 42 U.S.C. § 410(3) (1982 & Supp. V 1987) (defining "employment" to include services rendered by any citizen or resident of the United States outside the United States to an American employer or its foreign affiliate). A similar definition of employment is used for purposes of Federal Insurance Contributions Act (FICA) taxes. See I.R.C. § 3121(a) (West Supp. 1989).
158. See supra text accompanying notes 6-9.
159. See Chua Han Mow, 730 F.2d at 1311-13.
160. I. WALLERSTEIN, THE POLITICS OF THE WORLD-ECONOMY 2 (1984).
161. See supra p. 1282.
162. See supra text accompanying notes 6-9.
163. See Little Horn State Bank v. Crow Tribal Court, 690 F. Supp. 919 (D. Mont. 1988). In Little Horn, Little Horn State Bank alleged that Daniel Old Elk, Sr., and Old Elk Building Supply had defaulted on a promissory note. After a series of procedural decisions by the tribal court that would appear exotic to a federal counterpart, the plaintiff was faced with a clearly detrimental court order. The bank filed suit in federal court under the Indian Civil Rights Act, 25 U.S.C. §§ 1301-1341 (1982), claiming that enforcement of the tribal court order would deprive it of property without due process. See 690 F. Supp. at 920-21. The district court agreed to hear the claim. See id.
164. See Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978) (refusing to recognize a federal right of action for a Native American woman bringing a gender discrimination claim against her tribe). For a discussion of the case, see pp. 1301-02 below. The tribal court that would have deprived Little Horn State Bank of its property without due process was a "kangaroo court," Little Horn, 690 F. Supp. at 923; the tribal court that denied Martinez of the equal protection of the laws apparently was not.
165. 647 F.2d 1345 (D.C. Cir. 1981).
166. 42 U.S.C. §§ 4321-4370a (1982 & Supp. V 1987).
167. See Natural Resources Defense Council, 647 F.2d at 1347-48.
168. See id. at 1351.
169. See id. at 1366.
170. Id. at 1356 (quoting FTC v. Compagnie de Saint-Gobain-Pont-a-Mousson, 630 F.2d 1300, 1305-06 (D.C. Cir. 1980)).
171. See id. at 1358; see also id. at 1359 (admitting that "nuances of foreign sovereignty and foreign policy will color our statutory analysis").
172. Id. at 1356.
173. Id.
174. Id. at 1367.
175. 5 N.R.C. 1332 (1977).
176. Id. at 1339; see also Head, Federal Agency Responsibility To Assess Extraterritorial Impacts, 14 TEX. INT'L L.J. 425, 439 n.66 (1979) ("The German government, in a correspondence to the State Department, made clear it would oppose efforts by the United States to 'superimpose a further environmental review on the FRG's [Federal Republic of Germany] nuclear reactor licensing process.'"). See generally Whitney, Regulation of Federal Decision Making Affecting the Environment Outside the United States, Its Territories and Possessions, 3 GEO. MASON U. L. REV. 63 (1980) (arguing that NEPA should apply to federal decisionmaking that affects the environment outside the United States).
177. Id. at 1339; see also Head, Federal Agency Responsibility To Assess Extraterritorial Impacts, 14 TEX. INT'L L.J. 425, 439 n.66 (1979) ("The German government, in a correspondence to the State Department, made clear it would oppose efforts by the United States to 'superimpose a further environmental review on the FRG's [Federal Republic of Germany] nuclear reactor licensing process.'"). See generally Whitney, Regulation of Federal Decision Making Affecting the Environment Outside the United States, Its Territories and Possessions, 3 GEO. MASON U. L. REV. 63 (1980) (arguing that NEPA should apply to federal decisionmaking that affects the environment outside the United States).
178. See supra p. 1281.
179. See supra pp. 1281-82.
180. See supra pp. 1282-83.
181. See supra p. 1283.
182. 406 U.S. 205 (1972).
183. Cf. A. HIRSCHMAN, EXIT, VOICE, AND LOYALTY (1970) (discussing causes and patterns of withdrawal from economic, political, and social systems).
184. See Voder, 406 U.S. at 219-29.
185. As one commentator has noted, the Amish emphasized the distinctiveness of their normative community in their yoder brief: "'There exists no Amish religion apart from the concept of the Amish community. . . . The community subsists spiritually upon the bonds of a common, lived faith, sustained by "common traditions and ideals which have been revered by the whole community from generation to generation."'" Cover, supra note 99, at 29 (quoting Brief for Respondent at 21, yoder (No. 70-110) (quoting J. HOSTETLER, AMISH SOCIETY 131 (2d ed. 1968))).
186. As one commentator has noted, the Amish emphasized the distinctiveness of their normative community in their yoder brief: "'There exists no Amish religion apart from the concept of the Amish community. . . . The community subsists spiritually upon the bonds of a common, lived faith, sustained by "common traditions and ideals which have been revered by the whole community from generation to generation."'" Cover, supra note 99, at 29 (quoting Brief for Respondent at 21, yoder (No. 70-110) (quoting J. HOSTETLER, AMISH SOCIETY 131 (2d ed. 1968))).
187. Cf. M. FOUCAULT, PracticiNg Criticism, in POLITICS, PHILOSOPHY, CULTURE: INTERVIEWS AND OTHER WRITINGS, 1977-1984, at 152, 155 (L. Kriteman ed. 1988) ("Criticism is . . . to show that things are not as self-evident as one believed, to see that what is viewed as self-evident will no longer be accepted as such. Practicing criticism is a matter of making facile gestures difficult. ").
188. 436 U.S. 49 (1978).
189. Title I of the ICRA provides in pertinent part: "No Indian tribe in exercising powers of self-government shall . . . deny to any person within its jurisdiction the equal protection of its laws . . . ." 25 U.S.C. § 1302(8) (1982).
190. Santa Clara Pueblo, 436 U.S. at 63.
191. Id. at 62 (quoting Morton v. Mancari, 417 U.S. 535, 551 (1974)).
192. Id. at 72 n.32.
193. 836 F.2d 91 (2d Cir. 1987).
194. See id. at 92.
195. 28 U.S.C. §§ 1602-1611 (1982).
196. Id. § 1605(a)(2).
197. Martin, 836 F.2d at 95.
198. see id. at 95-96.
199. See generally Singer, Real Conflicts, 69 B.U.L. REV. 1, 129 (1989) (arguing, in the domestic context, that "[w]e differ about which contacts are more significant and what interests are real and what policies are better because we really do disagree about which kinds of social relationships are just").
200. D. KENNEDY, INTERNATIONAL LEGAL STRUCTURES 126 (1986).
201. See id. at 119.
202. P. BOURDIEU, supra note 101, at 144.
203. See id. at 153, 159. Deliberately absent from this discussion for reasons of space is the question whether some classifications may be more "objective" or may have more relevance than others. Similarly, the issue whether variations in the objective validity of various communities, to the degree such variations exist, have an impact on the ultimate outcome of the classification struggle is beyond the scope of this Note.
204. The expression is borrowed from Y. LACOSTE, LA GEOGRAPHIE, CA SERT, D'ABORD, A FAIRE LA GUERRE 34 (1976).
205. Cf. R. UNGER, FALSE NECESSITY: ANTI-NECESSITARIAN SOCIAL THEORY IN THE SERVICE OF RADICAL DEMOCRACY (1987) (proposing a social theory to combat false necessitarianism).