The Siren Song of Territoriality

Authors

Robin J. Effron, Fordham Law SchoolFollow
Alan M. Trammell, Washington and Lee University School of LawFollow

Document Type

Article

Publication Date

Fall 2025

Publication Citation

101 Indiana Law Journal 89

Abstract

Territoriality—the theory that a state’s physical borders determine its power and sovereignty—boasts a long, venerable history. For centuries, it served as the dominant political theory for myriad ideas. It defined a wide range of doctrines, including personal jurisdiction, choice of law, and prescriptive jurisdiction. By the middle of the twentieth century, though, this rigid territoriality no longer described or responded to the challenges of a society that had grown increasingly mobile and interconnected. Courts replaced inflexible territorial theories with more functional theories rooted in fairness and state regulatory interests.

In recent years, territoriality has seen a curious resurgence. The Supreme Court has reinfused many doctrines with territorial notions of state power, and that same territorial impulse has crept into new doctrines and debates. This reversion is perplexing because territoriality proves even less adept at addressing contemporary legal questions than it did a century ago.

This Article unpacks the conundrum by demonstrating that courts have enabled territorial resurgence by quietly constructing a set of doctrines that function as an escape valve from territoriality. Relying on these aterritorial doctrines and tools, parties can insulate themselves from territoriality’s downsides and simultaneously avail themselves of its benefits. This has left the United States with two procedural regimes: one for the well-heeled, highly informed, and well-represented; another for everyone else.

Recommended Citation

Effron, Robin J. and Trammell, Alan M. (2025) "The Siren Song of Territoriality," Indiana Law Journal: Vol. 101: Iss. 1, Article 3.
Available at: https://www.repository.law.indiana.edu/ilj/vol101/iss1/3