Empire of law: A book forum on Shaina Potts’ Judicial Territory

Abstract

The article introduces a book forum on Shaina Potts’ Judicial Territory: Law, Capital, and the Expansion of American Empire, featuring contributions from Ilias Alami (Cambridge), Joshua Barkan (Georgia), Rachel Phillips (UBC) and Eric Sheppard (UCLA). It is followed by a response from the author.

Shaina Potts’ Judicial Territory represents a significant intervention at the nexus of legal, political and economic geography. Substantively, the book is a study of historic-geographic transformations during the 20th Century in the legal treatment of commercial relationships between US private companies and foreign sovereign governments. No less significantly, it also makes a series of conceptual and methodological contributions to understandings, inter alia, of territoriality, sovereignty, globalization and empire, modelling different ways of doing geographical political economy.

At the heart of Potts’ book lies a technical yet nonetheless gripping story of geographic-judicial creep. Essentially, beginning around mid-century, the US gradually but decisively extended the reach and authority of its laws and courts to take in an increasingly wide range of commercial relationships, in the process enrolling an expanding array of institutional actors and involved parties, in more and more parts of the world. By the end of the last century, we learn, no sovereign government anywhere in the world could engage commercially with US firms, even in their own countries, without risk of falling foul of the transnational purview and application of US commercial law. The term ‘judicial territory’ is invoked by Potts to index this crucial legal-geographic phenomenon: that is, the increasingly transnational spaces of authority occupied by the US legal regime.

Potts offers an especially engaging telling of this story, drawing out the consequences by closely examining a series of legal cases involving private companies based in the US, each of which reaches into the domain of foreign governments and their respective nationalization programmes, state-owned enterprises and sovereign-debt regimes. The book shows how technical changes relating to the treatment of foreign sovereigns in US domestic law have reconfigured the contours of a series of foundational legal dichotomies, including public/private, political/legal and foreign/domestic, in the process narrowing the legal definitions of ‘public’ and ‘political’, while expanding those designated ‘private’ and ‘commercial’. It is this reconfiguration, Potts shows, that has allowed the United States to extend its legal authority over global financial and economic relations, in especially consequential ways for postcolonial states. Ultimately, this brings the economic decision-making of foreign governments under the ambit of US commercial law, along with its institutionalized procedures for arbitration and adjudication.

Integral to this process were transformations – halting, uneven, and in certain respects still ongoing – in two main legal doctrines that had historically insulated foreign governments from US courts. The first concerned foreign sovereign immunity rules: Who and what were immune from lawsuits? In the 1950s, both the who and the what began to be understood by US jurists in more restrictive ways, with the result that the commercial acts of foreign states lost their former immunity (through the so-called ‘commercial exception’).

The second key doctrine was ‘act of state’. This international legal principle asserts that acts carried out by sovereign states in their own territories, such as nationalizations, cannot be challenged by other countries’ courts. Historically, US courts fully respected this doctrine, but by the 1960s they had started to chip away at it. In particular, commercial acts came to be excluded, just as they were from foreign sovereign immunity rules. Increasingly, then, the identity – public or private – of business operators and asset owners around the world did not matter to US courts. They were all to be treated the same way, meaning that foreign states’ activities and possessions were no longer protected by the rules of sovereign immunity and acts of state.

What were the implications of all this? Potts demonstrates that the US and its private corporations have benefited enormously from this post-World War II extension of judicial authority over the economic policies and practices of postcolonial governments. In effect, the law became a pivotal field for the projection and policing of America’s geopolitical and economic interests. In documenting this development, Judicial Territory makes novel contributions to received understandings of the reconstitution of American power in the period since the Second World War, and to the changing form and dynamics of globalization. Potts shows that the US has not merely responded to globalization, it has been active in its production, transnationalizing the ‘economic space’ of the United States.

A central theme of the book is that the American courts’ growing subordination of the international arena into merely another jurisdiction of US domestic law is part and parcel of a longer and larger policy of containment. Behind the expansion of US judicial reach in the second half of the 20th Century was the desire and determination of US government and corporate actors to tame non-capitalist national economic models overseas and to hobble any developments remotely inimical to the interests of US capital.

Potts understands all this through the lens of American empire. Her book is a call to treat the United States as an imperial power precisely (although not exclusively) because of this extension across international space of US legal authority and, correspondingly, of the interests of US firms. Potts writes of the latter-day American empire evincing a ‘judicial modality’ – of foreign sovereign nations and their peoples being subordinated to the United States by law rather than by colonial occupation or military force.

What comes across as most insidious about the ‘imperial modality’ of US judicial power is the extent to which it was designed to quietly snuff out ‘postcolonialism’. The expansion of US judicial territory after World War II, Potts (2024a: 46) writes, ‘enabled the United States to continue exercising substantial authority over the decisions of foreign governments in an age of avowed anti-imperialism and formal sovereign equality’. More than that, the turn to law was a mechanism for the active disavowal of empire. ‘The recoding of many foreign policy issues as merely legal’, Potts (2024a: 52) observes, ‘has been an especially potent way for the United States to obscure its own imperial operations’. Or, as she puts it elsewhere, the trick has been ‘to cloak the pursuit of US geopolitical and geoeconomic goals (always entangled to a large degree with private corporate interests) in the guise of the “rule of law”’ (Potts, 2024a: 14). If, as Carl von Clausewitz famously argued, war is merely the continuation of politics by other means, then, for Potts, law – at least the transnational application of domestic American commercial law – represents the continuation of empire by other means.

Just as Indigenous populations worldwide resisted the imposition of foreign occupation and rule that was European colonialism, so too, to varying extents and with varying degrees of determination, have national governments worldwide resisted and challenged the postwar expansion of US judicial authority. Potts recounts many such examples of confrontation. The Cuban government has long been a particular irritant for the United States in this respect, repeatedly and robustly arguing against the overreach of American judicial authority.

But Potts is also clear-eyed about the fact that, for the most part, so many of these challenges have ultimately been in vain: ‘Once judicial decisions are made’, she observes, ‘most foreign governments do obey them most of the time’ (Potts, 2024a: 8). But why? After all, as Potts (2024a: 8) goes on to observe, ‘transnational law is not backed directly by the enforcement power of the police the way domestic law is’. Her answer emphasizes the chilling impact of the economic blackballing that routinely comes with any failure to conform and comply with US law, since foreign governments for the most part cannot afford to be shut out of US markets or legal services for any extended period of time.

In sum, Judicial Territory is a landmark contribution. Drawing upon while also contributing to economic, political and legal geography, it brings together in an original and compelling way what have hitherto been largely separate conversations concerning territoriality, sovereignty and empire in political geography, around the dynamics of offshoring, neoliberal regulation and globalization in economic geography, and relating to the mutual constitution of law, space and territory in legal geography.

Sheppard (2025) offers a careful reconstruction and interpretation of the architecture and purpose of Potts’ argument, spanning as it does an extended historical arc from the end of the long 19th Century to the establishment of neoliberal globalism. He notes that perhaps the book’s most notable achievement is to ‘activate’ the role of law within geographical political economy, while at the same time bringing a geographical perspective into the rich tradition of work in critical legal studies. The scope and span of the analysis is such that case selection really matters, whether one is referring to legal cases or ‘cases’ in the analytical sense. The book opens up what amounts to a new analytical territory for geographers and their interlocutors, inviting new rounds of scholarship that might confirm or complicate Potts’ arguments around the outward projection of US judicial power, and perhaps pointing to alternatives or counter-currents.

Alami (2025) positions the contributions of Judicial Territory in relation to historic transformations in ostensibly late-stage neoliberal globalization, the uneven ascendancy of state-capitalist responses, and debates around IFS or international financial subordination. The IFS literature explores the diversity of means and modalities by which the disadvantaged position of developing countries is entrenched and reproduced, including through constrained policy options and developmental schemes, along with heightened exposure to macroeconomic shocks and financial vulnerability. Yet insufficient attention has been paid to the role of law and legal practices in the enforcement of this distinctive form of capitalist discipline. This is one of the areas in which Potts’ book makes a substantive and distinctive contribution. Not only does it bring to light the roles of an expanded range of agents, institutions, programmes, practices and modes of reasoning, the book also develops arguments around the constitutive presence and causal significance of the law in capitalist dynamics and their associated geographies, with implications for state theory and capitalist-state restructuring above and beyond the specificities of the US case.

As Barkan (2025) points out in his commentary, it can be challenging to disentangle capitalist from imperial and colonial dynamics when it comes to the law, and not only because these are jointly constituted in ontological terms. They are also deeply and distinctively entangled in the geohistorical conjuncture represented by the American form of neoliberalized capitalism and the geopolitics of US hegemony. Judicial Territory speaks to an emerging research agenda around the mutually shaping imperatives of capitalism and empire that must in due course reach across different historical and geographical contexts, positioning the US experience as a world-shaping case, but as a case nonetheless, amongst its others and alternatives. As both Barkan and Alami emphasize, a notable contribution of Potts’ book is to make available, and put to indicative use, the methodological tools of legal geography in the service of geographical political economy (see also Potts, 2024b).

Judicial Territory operationalizes a way to read legal cases and to interpret diverse forms of legal practice in ‘geographically relational’ terms (Potts, 2024a: 23), doing the crucial work of ‘recontextualization’ in the face of the decontextualizing manoeuvres that are so deeply embedded in legal practice itself. Technical, esoteric, and highly specialized, the space occupied by legal knowledge, practice and expertise is not readily accessible to geographers and critical social scientists, implying that methodological barriers to entry must be overcome. Yet as Phillips (2025) observes, one of the achievements of Judicial Territory is its methodological demonstration effect: Potts models a means to work through legal cases, judicial decisions and other (abundant) documentation in order to connect these specific events, disputes and judgements from the legal record to bigger-picture concerns with geopolitical conditions, corporate interests and political-economic relations. In the process, she draws in novel ways from critical legal studies and from a range of other more sociological treatments of the law, blending these with a geographical sensibility.

The purpose of this work of recontextualization is not simply to shed light on the hidden abode of transnational commercial law, as if for its own sake, or to portray fixed rules of the game operating in the background, and entirely beyond reach. On the contrary, as Phillips notes, it is to reveal these legally constituted and encased spaces as highly consequential sites of social struggle and indeed politics. No doubt, the forces that continue to align and ally ‘the law’ with the interests of powerful corporations and states, reinforcing colonial and capitalist logics, are formidable ones. The powerful interests have a habit of effectively becoming the law, while quite often remaining above the law at the same time. Yet there is nothing automatic or predetermined about how the influence of these powerful interests is secured and reproduced. Other ways of doing things are available.

Concluding the book forum, Potts (2025) offers a wide-ranging response to these commentaries, taking up all of the key arguments raised by her interlocutors. In the process, she touches upon questions of ontology and epistemology, as well as matters of substantive, historical-geographical interpretation. What comes through here is the value of this new variant of ‘legal economic geography’ as an analytic, as an optic and as a mode of critical inquiry. This does not simply mean ‘putting the law first’ in conceptualization, research design or explanation, but rather, working with the law, legal practices, judicial rulings, different varieties of the ‘rule of law’, and so forth, as a methodological means to read across geographical contexts, to unpack the shifting social relations of capitalism and to map emerging contours of transformation, conflict and contestation. This extends the scope and reach of geographical political economy, while also enriching its analytical repertoire. At the same time, there is a promise of deepening interdisciplinary conversations, while securing a place for geographical contributions.