The "Presumption against Extra(subjective)territoriality" *: Morrison's Confounding "Focus" Test

By Mason, Kyle A. | The Review of Litigation, Spring 2019 | Go to article overview

The "Presumption against Extra(subjective)territoriality" *: Morrison's Confounding "Focus" Test


Mason, Kyle A., The Review of Litigation


ABSTRACT.................... 385

INTRODUCTION.................... 386

I.THE FOCUS TEST.................... 390

A. The Presumption Against Extraterritoriality.................... 390

B. Historical Development of the Focus Test.................... 391

1. Morrison v. National Australia Bank Ltd..................... 392

2. Kiobel v. Royal Dutch Petroleum Co.................... 395

3. RJR Nabisco, Inc. v. European Community.................... 396

C. Current State of the Focus Test.................... 398

1. WesternGeco LLC v. ION Geophysical Corp.................... 398

2. Expanding on the Focus Test.................... 399

3. Focus of the Patent Act.................... 400

II.SUBJECTIVE APPLICATION OF THE FOCUS TEST IN STATUTE.................... 402

A. Alien Tort Statute (ATS).................... 402

1. The ATS Circuit Split.................... 403

2. Focus of the ATS.................... 405

B. Wire Fraud Statute.................... 408

1. The Wire Fraud Split.................... 408

2. Focus of the Wire Fraud Statute.................... 409

III.THE NEED FOR INTERVENTION.................... 412

A. Congressional Action.................... 412

B. Replacing the Focus Test.................... 415

CONCLUSION.................... 416

INTRODUCTION

In WesternGeco LLC v. ION Geophysical Corp.,1 the U.S. Supreme Court revisited one of the presumption against extraterritoriality's most vexing issues-"how to interpret a statute's silence about its territorial scope."2 In Morrison v. National Australia Bank Ltd.? the Supreme Court originally sought to resolve this problem by establishing the beginnings of a two-step framework which directs lower courts on whether the extraterritorial application of a statute might be permissible.4 However, applying this framework has proven to be a daunting task, as globalization has forced lower courts to interpret statutes with an increasingly "international dimension" that typically "do[es] not specify a territorial scope."5 Courts' continued struggle with extraterritoriality issues and the two-step framework have created multiple circuit splits regarding the jurisdictional scope of various statutes, forcing the need for clarification on "the territorial limits of a number of American laws."6 As this article explains, much of this ambiguity can be directly attributed to the subjective focus test.

Most recently, WesternGeco revisited the presumption against extraterritoriality and the focus test in the context of the Patent Act's general damages provision,7 a statute silent as to jurisdictional reach. Applying the two-step framework for deciding whether a silent statute rebuts the presumption against extraterritoriality,8 the Court's decision turned solely on the second step. Commonly referred to as the "'focus' test,"9 this step of the framework aims to identify a statute's "focus" to determine "whether [a] case involves a domestic application of the statute."10 Applying this test, the Court ultimately determined that "infringement" was the focus of the statute at issue and held that because the infringement had taken place domestically, the statute had extraterritorial application.11 Although the Court attempted to clarify how the focus test should be applied by lower courts, WesternGeco highlights why this flawed test fails to achieve this purpose.

This article argues that, even with WesternGeco"s most recent iteration of the focus test, the application of the test remains subjective and easily manipulated by courts that wish to extend legislation beyond the United States borders absent clear direction from Congress.12 Because the rift the focus test has created in numerous areas of the law, and because courts continue to struggle with properly determining the "focus" of a statute,13 this issue warrants further analysis. This article specifically examines the numerous instances where courts have differed on the proper "focus" of a particular statute, creating unpredictability as to when that statute may have extraterritorial application, thus exemplifying the subjective and unpredictable nature of the focus test. …

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