The Passive Personality Principle

Abstract

This Article examines the merits of the passive personality principle of criminal jurisdiction, focusing particularly on United States practice. Part II traces the evolution of passive personality jurisdiction in United States law, asserting that passive personality jurisdiction had almost no place in United States law until the 1970s, when Congress began to seek ways to punish terrorist acts against Americans overseas. Part III argues that international law should permit states to exercise passive personality jurisdiction, but only if the defendant is not prosecuted either by the state in which the crime was committed or by the defendant's home state. Part IV considers whether there is a constitutional basis for Congress to enact extraterritorial criminal laws based solely on the passive personality principle. This part also analyzes recent efforts by Congress to expand passive personality jurisdiction beyond terrorist crimes. Finally, part V argues that the debate over passive personality jurisdiction illustrates the need for a more systemic approach to extraterritorial jurisdiction generally.

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