Extraterritorial criminal jurisdiction.

• Author: Farbiarz, Michael
• Position: III. Fairness it Its Proper Place B. The Constitutional Necessity of a Threshold Conflict through VI. A Reformulated Doctrine and the Wages of the Current Approach, with footnotes, p. 533-557

2. The Constitutional Necessity of a Threshold Conflict

   As we saw above, unfairness in the context of due process limits on legislative jurisdiction means the upending of a defendant's expectations about the substantive law that she thought would control her conduct. (150) This upending of expectations is especially pointed in an actual-conflict case. The defendant thought she was following the law and turns out to have been breaking it--and is now being prosecuted for that surprising lawbreaking. There is little doubt that the extraterritorial due process doctrine should apply in a prosecution that involves an actual conflict--and that such a prosecution should therefore have to satisfy the doctrine's requirement of a "nexus" to the United States. The problem that the extraterritorial due process doctrine exists to solve (unfairness, in terms of upset expectations) is emphatically present in an actual-conflict case.

   But no-conflict cases are different. The defendant knew that she was violating the criminal law, but did not know that, in addition to violating local criminal law, she was also violating U.S. criminal law. This is a less dramatic upending of expectations. The question, then, is this: If it is to be understood as based solely on fairness concerns, is there enough unfairness in the no-conflict scenario to justify application of the extraterritorial due process doctrine? This Section argues that the answer is largely "no." Section III.B. 1 begins with due process limits on legislative jurisdiction in civil cases. Such limits, I show, are triggered only when there is an actual conflict-- between one body of substantive law that might apply and another. Section 1II.B.2 argues that, before applying due process limits, it makes as much sense to require a threshold actual conflict in criminal cases as it does in civil cases. (151) Section III.B.3 goes further, explaining that there are stronger reasons to require an actual conflict in criminal cases than in civil ones. Section III.B.4 shows that requiring a threshold actual conflict would bring the extraterritorial due process doctrine into line with fair-warning law--a closely related due process doctrine that also requires an actual conflict, though not in so many words. Section III.B.5 broadens the argument, showing that due process protections should also be triggered when there is a "sentencing conflict"--a discrepancy between how a defendant is to be sentenced under U.S. law and how she might otherwise have been sentenced.

   1. Civil Cases: The Necessity of a Threshold Actual Conflict

      The Supreme Court has principally developed its jurisprudence of due process limits on legislative jurisdiction in the choice-of-law context. (152) These are civil cases, in which the plaintiff seeks application of one body of substantive law and the defendant seeks application of another. These cases typically follow the same three-step analytic progression.

      In the first step, the court determines whether the potentially applicable bodies of substantive law do, in fact, actually conflict with one another. (153) After determining that there is an actual conflict, the court tentatively selects which of the potentially applicable bodies of substantive law to apply. (154) The court then moves to the third and final stage of the analysis--determining whether it is permissible under due process for the body of substantive law that the court has tentatively selected to govern the dispute. (155)

      It makes sense that due process should come last. Like any constitutional question, the issue of whether due process prohibits the application of a given body of law should be avoided if possible. (156) A litigant may erroneously imagine (or hope for) a difference between bodies of relevant law when none exists. Comparison of the potentially applicable bodies of substantive law, right from the outset, may allow a court to dispose of the choice-of-law issue before having to reach the constitutional question that awaits at the end of the road. Resolving the first question (is there an actual conflict?) before the last question (is there a due process violation?) is thus a matter of prudence. But proceeding in that order is also legally required-because in the absence of an actual conflict, there can be no due process claim. Indeed, the Supreme Court has all but explicitly stated that rule. In Phillips Petroleum, one of the leading modern choice-of-law cases, Chief Justice Rehnquist framed the issue for eight Justices this way:

      Petitioner contends that total application of Kansas substantive law violated the constitutional limits on choice of law.... We must first determine whether Kansas law conflicts in any material way with any other law which could apply. There can be no injury in applying Kansas law if it is not in conflict with that of any other jurisdiction connected to this suit. (157) As Justice Stevens put it, writing for himself: "[A]bsent any conflict of laws, in terms of the results they produce, the Due Process Clause simply has not been violated.... In this case it is perfectly clear that there has been no due process violation because this is a classic 'false conflicts' case." (158)

      In short, all nine Justices in Phillips Petroleum agreed that simply being subjected to a certain body of substantive law cannot, standing alone, be the basis of a due process claim. Rather, there must be a "material," "results"--impacting difference between the body of law that was imposed and "any other law which could apply." This is an actual conflict, and it is not surprising that the Supreme Court required such a conflict as a threshold matter before a due process claim could be pressed.

      To see why, consider Allstate. In that case, Ralph Hague had three car insurance policies, each with Allstate; each policy provided for a recovery up to $15,000. (159) Ralph Hague was killed in an accident, and his wife Lavinia Hague sued Allstate. (160) Lavinia Hague argued that Minnesota tort law was controlling, and that under Minnesota law the three $15,000 insurance policies could be "stacked," such that she could recover $45,000. (161) Allstate countered that Wisconsin tort law was controlling, that Wisconsin law prohibited stacking, and that, accordingly, the maximum recovery was $15,000. (162) For Allstate, the difference between application of Minnesota law and Wisconsin law was worth something: $30,000, the difference between what Allstate would pay out if Wisconsin tort law applied versus what Allstate would pay out if Minnesota tort law applied. (163)

      But what if there was no actual conflict? If Minnesota and Wisconsin law both allowed for a $15,000 recovery, it would make no practical difference for Allstate which body of tort law applied to the case. The case would come out the same under either body of law. In the absence of an actual conflict, nothing would turn on whether Minnesota law or Wisconsin law applied. And in that circumstance, Allstate could hardly claim that application of one of those bodies of law was so unfair that its due process rights were violated.

      The point can be transposed into doctrinal terms. Due process claims can go forward only if there is a threshold deprivation of property (or, in an appropriate case, of life or liberty). (164) In turn, due process property is, (1) an "entitlement" that (2) has "monetary value." (165) And this definition is dispositive. In the absence of an actual conflict, even if Allstate had an entitlement to application of Wisconsin law, that entitlement would have had no monetary value. Allstate would have been required to pay out the same $15,000 whether it received its entitlement (and Wisconsin law applied) or whether it was deprived of its entitlement (because Wisconsin law was displaced and Minnesota law applied). In the absence of an actual conflict, the entitlement would be worthless. An entitlement that lacks all "monetary value" is not property, and if property is not at stake in a lawsuit there can be no due process claim. (166)

      Nor is the logic of requiring a threshold actual conflict even particular to due process. Constitutional claims generally require some sort of real-world injury before they can go forward. (167) But the court's application of the wrong body of substantive law does not typically injure anyone unless something practical turns on which body of law applies. (168)

      Take ex post facto law as an example. In that context, the defendant is very much arguing that the court applied the wrong body of law--the court applied the new law in force at the time of trial, not the old law in force at the time she acted. But in the ex post facto context, it is not generally enough that there be some sort of purely formal difference between these two bodies of law, old and new. (169) Rather, there must be a practical, bottom-line difference for the defendant, (170) and that is only logically possible if the old and new bodies of law are meaningfully different from each other--if there is between them what amounts to an actual conflict.

   2. From Civil to Criminal

      As we saw above, the extraterritorial due process doctrine must be grounded solely on a concern for fairness, generally understood as protecting against the upsetting of relevant expectations. (171) But expectations can only be upset when there is a discrepancy between baseline (what one expected would happen) and reality (what actually did happen)--in the case of legislative jurisdiction, a discrepancy between the substantive law that one expected would apply and the substantive law that did, in reality, apply. (172) If there is no actual conflict, then the only discrepancy between the expected body of substantive law and the applied body of substantive law is its source--in the example above, that one is Spanish substantive law and the other is U.S. substantive law. (173) But that formalistic distinction cannot amount to a constitutionally sufficient...