The Canon at the Water's Edge

41 Pages Posted: 29 Feb 2012 Last revised: 2 Apr 2012

Thomas B. Bennett

Kellogg, Huber, Hansen, Todd, Evans & Figel, P.L.L.C.

Date Written: February 29, 2012

Abstract

What motivates substantive presumptions about how to interpret statutes? Are they like statistical heuristics that aim to predict Congress’s most likely behavior, or are they meant to protect certain underenforced values against inadvertent legislative encroachment? These two rationales, fact-based and value-based, are the extremes of a continuum. This Note uses the presumption against extraterritoriality to demonstrate this continuum and how a presumption can shift along it. The presumption operates to diminish the likelihood that a federal statute will be read to extend beyond the borders of the United States. The presumption has been remarkably stable for decades despite watershed changes in the principles — customary international law and conflict of laws — that once supported it. As the presumption’s normative justifications have diminished, a new justification has grown in importance. Today, the presumption is often justified as a stand-in for how Congress typically legislates. This Note argues that this change makes the presumption less defensible but even harder to overcome in individual cases.

Keywords: statutory interpretation, presumption against extraterritoriality, statutory canons, legislation

Suggested Citation

Bennett, Thomas B., The Canon at the Water's Edge (February 29, 2012). New York University Law Review, Vol. 87, p. 207, April 2012. Available at SSRN: https://ssrn.com/abstract=2013353

Thomas B. Bennett (Contact Author)

Kellogg, Huber, Hansen, Todd, Evans & Figel, P.L.L.C. ( email )

Sumner Square
1615 M Street, N.W. Suite 400
Washington, DC 20036
United States

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