Why Rico's Extraterritorial Reach is Properly Coextensive with the Reach of its Predicates
Hofstra Journal of International Business and Law, 2015
33 Pages Posted: 9 Feb 2015
Date Written: January 1, 2015
Advocates and courts have historically adopted an unnecessarily dualistic approach to the extraterritorial application of RICO. At one poll are those suggesting the statute absolutely cannot be applied extraterritorially because it does not announce congressional intention for such application. At the other, there are those suggesting that Congress has manifested clear intention that the statute be applied extraterritorially in a wholesale fashion. As is so often the case, neither extreme is merited, and the truth is in the middle.
The Second Circuit struck the proper balance and recognized both the length and the limits for redressing extraterritorial conduct inherent in the RICO statute itself. Unless Congress amends the language of the statute, the “coextensive with predicate acts” approach is best for faithfully determining its extraterritorial reach on a case-by-case basis. It allows potential plaintiffs and prosecutors the latitude Congress intended, based on the plain language of the statute, while restraining them from going any further. As a practical matter, it also permits prosecutors and plaintiffs to adequately confront the injurious behavior of United States citizens, on the one hand, while protecting their interests, on the other.
If more is needed in light of present and developing transnational threats, Congress should act decisively to broaden RICO’s extraterritorial scope. Perhaps a legislative remedy is needed. Perhaps one is coming. Unless and until it comes, though, the “coextensive with predicate acts” approach propounded by the Second Circuit provides the clear, logical, and just way forward in light of RICO’s language and purpose. Moreover, it affords the statute the amplitude Congress intended to meet the significant international threats it is uniquely capable of redressing. It permits full, but not reckless, deployment of this “unusually potent weapon” at a time when improper and impractical restraint would be greatly detrimental to America’s vital interests.
Suggested Citation: Suggested Citation