The New Presumption Against Extraterritoriality

73 Pages Posted: 3 Aug 2019 Last revised: 11 Mar 2020

See all articles by William S. Dodge

William S. Dodge

University of California, Davis - School of Law

Date Written: June 29, 2019

Abstract

Canons of statutory interpretation are sometimes said to promote continuity and stability in the law. Yet it is widely acknowledged that canons themselves sometimes change. The presumption against extraterritoriality is a prime example. It evolved from a rule based on international law, to a canon of comity, to a tool for finding legislative intent. The presumption then fell into disuse for nearly 40 years until it was reborn in Aramco (1991) and substantially revised in Morrison (2010).

This Article makes three contributions. First, it describes the evolution of the presumption against extraterritoriality over two centuries, providing a detailed account of change in an important canon of interpretation. Second, the Article describes the new, post-2010 presumption, arguing—contrary to the conventional wisdom—that the current version of the presumption is superior to previous ones. Third, the Article addresses the problem of changing canons. It argues that changing canons constitute a form of dynamic statutory interpretation, which imposes certain responsibilities: to justify the changed canon in normative terms, to explain the need for change, and to mitigate the transition costs.

Keywords: extraterritorial, presumption against extraterritoriality, statutory interpretation, canons of interpretation, RJR Nabisco, Morrison

Suggested Citation

Dodge, William S., The New Presumption Against Extraterritoriality (June 29, 2019). 133 Harvard Law Review 1582, Available at SSRN: https://ssrn.com/abstract=3429336

William S. Dodge (Contact Author)

University of California, Davis - School of Law ( email )

Martin Luther King, Jr. Hall
Davis, CA CA 95616-5201
United States

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