Academic journal article Boston University Law Review

Replacing the Presumption against Extraterritoriality

Academic journal article Boston University Law Review

Replacing the Presumption against Extraterritoriality

Article excerpt

The presumption against extraterritoriality tells courts to read a territorial limit into statutes that are ambiguous about their geographic reach. This canon of construction has deep roots in Anglo-American law, and the U.S. Supreme Court recently reaffirmed this principle of statutory interpretation in Morrison v. National Australia Bank and Kiobel v. Royal Dutch Petroleum. Yet as explained in this Article, none of the purported justifications for the presumption against extraterritoriality hold water. Older decisions look to international law or conflict-of-laws principles, but these bodies of law have changed such that they no longer support a territorial rule. Modern courts suggest that the presumption avoids conflicts with foreign states and approximates legislative attention, yet these same decisions show the presumption is poorly attuned to either of these laudable goals. And while separation of powers and due process are superficially served by this rule, they too crumble in the face of serious scrutiny.

Although courts continue to rely on this outmoded presumption, some scholars have noted the incongruity between its goals and its execution. These scholars have offered alternative rules such as a presumption against extrajurisdictionality or a dual-illegality rule. But these alternative proposals fall into the same trap as the presumption - they uncritically apply a single approach to all types of cases. Instead, different statute types call for different rules: the Charming Betsy doctrine for private civil litigation, a rule of lenity for criminal statutes, and Chevron deference for administrative cases. These rules, not a singular presumption, best support the public policy interests that are important in each of these classes of disputes, and they also suggest an approach to Alien Tort Statute litigation that could serve as an alternative to the Supreme Court's recent decision in Kiobel.


The presumption against extraterritoriality has been applied in U.S. courts for more than a century, receiving perhaps its most prominent endorsement from no less than Justice Oliver Wendell Holmes, Jr.: "[A]ll legislation is prima facie territorial."1 In the 1990s, Chief Justice Rehnquist reaffirmed this principle in its modern formulation: "[L]egislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States."2 And in 2013, Chief Justice Roberts quoted Justice Scalia for the proposition that: "When a statute gives no clear indication of an extraterritorial application, it has none."3

As these Justices explained, and as its name suggests, the presumption against extraterritoriality instructs courts to construe geoambiguous statutes to apply only to the territory of the United States.4 The presumption against extraterritoriality has been cited in hundreds of reported decisions,5 and the Supreme Court has continued to "wholeheartedly embrace" the presumption against extraterritoriality in transnational litigation in U.S. courts.6

Judicial and scholarly advocates point to a range of justifications for the presumption against extraterritoriality: it reflects international law and conflictof- laws principles,7 it insulates U.S. foreign relations interests by minimizing conflicts with foreign laws,8 it approximates congressional intent,9 it maintains the separation of powers among the coordinate branches,10 and it protects due process rights of defendants.11 Each of these goals is laudable, but the presumption against extraterritoriality is a crude tool to achieve these ends and at times it is counterproductive for its stated purposes.12 For these reasons, the presumption against extraterritoriality merits reevaluation. Part I of this Article takes up that task.

The examination of the presumption and its purposes is important for a few reasons. The presumption against extraterritoriality is a widely cited judicial rule, and it affects topics from securities regulation13 to employment discrimination14 to piracy. …

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