Replacing the Presumption Against Extraterritoriality
53 Pages Posted: 14 Apr 2013 Last revised: 9 Jul 2014
Date Written: April 12, 2013
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.
Keywords: Extraterritoriality, International Law, Charming Betsy, Statutory Interpretation, Statutory Construction, Foreign Relations, Alien Tort Statute
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