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Constitutional Torts and the War on Terror$
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James E. Pfander

Print publication date: 2017

Print ISBN-13: 9780190495282

Published to Oxford Scholarship Online: January 2017

DOI: 10.1093/acprof:oso/9780190495282.001.0001

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Applying Bivens to Conduct Outside the United States

Applying Bivens to Conduct Outside the United States

(p.121) Chapter 7 Applying Bivens to Conduct Outside the United States
Constitutional Torts and the War on Terror

James E. Pfander

Oxford University Press

This chapter explores the legal doubts that stem from the proposed extraterritorial application of U.S. law, doubts to which a number of federal courts have given voice in declining to adjudicate human rights claims. Although courts have couched their concerns about extraterritoriality in a variety of terms, scholars (and the Supreme Court) have typically approached such questions with the methodological toolkit of choice-of-law analysis. When tackling the problem with that set of tools, one finds little basis for doubting the application of U.S. law. Few problems of conflicting law or regulatory authority arise when the courts of the United States apply the Constitution’s universal human rights guarantees as the measure of U.S. official conduct abroad. This chapter concludes with an argument for a revival of the nineteenth century’s presumptive reliance on U.S. law to ensure government accountability outside the nation’s borders.

Keywords:   extraterritoriality, constitutional limits, government action abroad, human rights guarantees, universal jurisdiction

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