Replacing the Presumption against Extraterritoriality

By Clopton, Zachary D. | Boston University Law Review, January 2014 | Go to article overview

Replacing the Presumption against Extraterritoriality


Clopton, Zachary D., Boston University Law Review


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.

INTRODUCTION

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. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Note: primary sources have slightly different requirements for citation. Please see these guidelines for more information.

Cited article

Replacing the Presumption against Extraterritoriality
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen
Items saved from this article
  • Highlights & Notes
  • Citations
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Search by... Author
    Show... All Results Primary Sources Peer-reviewed

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.