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Extraterritoriality and Fifth Amendment Due Process (with Charles Norchi), 105 Harvard Law Review 1217 (1992)


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.

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