Wednesday, May 4, 2011
Zachary D. Clopton (United States Attorney's Office – Northern District of Illinois) has posted Bowman Lives: The Extraterritorial Application of U.S. Criminal Law after Morrison v. National Australia Bank (NYU Annual Survey of American Law, Forthcoming) on SSRN. Here is the abstract:
The presumption against extraterritoriality declares that, unless a contrary intent appears, courts should presume that statutes apply only within the territory of the United States. Repeatedly during the 20th Century, the Supreme Court applied the presumption to civil statutes. Over the last two decades, the Supreme Court has revisited the presumption in civil cases and issued decisions that appear to strengthen the presumption’s bite. The presumption against extraterritoriality supposedly applies in criminal cases as well, although the Supreme Court has not spoken to this issue in over a century. In 1922, the Court decided United States v. Bowman, professing an allegiance to the presumption for criminal cases, although it held that the criminal prohibition on defrauding government-owned entities should apply extraterritorially. Courts of appeals routinely cite favorably to Bowman in purportedly extraterritorial criminal cases. Yet these decisions tend to apply laws extraterritorially in a manner that goes beyond Bowman’s express holding. Moreover, while these courts of appeals frequently cite the civil-law precedents in their criminal decisions, the outcomes of these cases suggest that criminal law is treated differently – these courts have tended to expand the extraterritorial application of U.S. criminal law, in contrast to the trend of Supreme Court decisions in civil cases.
The Supreme Court recently returned to the presumption in the civil case Morrison v. National Australia Bank. Morrison forcefully asserted the presumption against extraterritoriality in the context of U.S. securities laws, but its “real motor” was the new rule that the presumption must be applied in light of the “focus” of the statute. The majority opinion asserted that, for purposes of assessing extraterritoriality, the court must look only at those facts comprising the “focus” of the statute. Although this view appears to strengthen the presumption and thus expand the range of situations insulated from U.S. law – territorial connections that are relevant to the case but outside the statute’s “focus” are insufficient to avoid the presumption – the “focus” inquiry opens a new path to reconcile Bowman and its progeny with the original presumption. If adopted, this approach could be justified by the same factors that the Supreme Court has invoked to justify its criminal- and civil-law pronouncements on the presumption against extraterritoriality.