Brief of Law Professors as Amici Curiae in Support of Petition for Writ of Certiorari in British American Tobacco (Investments) Ltd. v. United States

Abstract:     
This amicus brief urges the United States Supreme Court to grant certiorari in the case American Tobacca (Investments) Ltd. v. United States, No 09-980. The appeal raises important issues implicating legislative jurisdiction, the effects test, and the presumption against extraterritoriality in the context of a civil RICO action. The D.C. Circuit below did not address the difficult question of whether Congress intended RICO to apply to the foreign conduct of nonnationals – an issue on which the lower courts are divided. Instead, the court of appeals embraced an approach that treats regulation of foreign conduct as domestic, not extraterritorial, regulation.

Amici submitted the brief to clarify the history and application of the effects test and to show how that history bears upon the proper interpretation of whether Congress intended a statute to reach extraterritorial conduct.The amicus brief argues that the U.S. Supreme Court should grant review for a number of reasons. The brief explains how the D.C. Circuit opinion has added confusion to an existing three-way split on the scope and application of the effects test. The brief also demonstrates how the meaning of the presumption of extraterritoriality and its interplay with the effects test is now in doubt.

Keywords: extraterritorial, territoriality, presumption against extraterritoriality, effects test, legislative jurisdiction, prescriptive jurisdiction, RICO, antitrust, interest-balancing, comity, international comity, geoambiguous, international law, transnational law

JEL Classification: K10, K14, K19, K21, K29, K33, K42, L40

Accepted Paper Series