Wednesday, June 5, 2013
Kenneth S. Gallant (University of Arkansas at Little Rock - William H. Bowen School of Law) has posted What Exactly is 'Extraterritorial Application' of a Statute? (Jurist Forum, May 2013) on SSRN. Here is the abstract:
Much comment has been devoted to the recent US Supreme Court decisions in Morrison v. National Australia Bank and Kiobel v. Royal Dutch Petroleum concering the "presumption against extraterritorial application" of United States statutes. Very little has been devoted to the problem of defining "extraterritorial application of a statute" for the purpose of deciding when the presumption applies, and needs to be overcome.
After addressing the problem of extraterritoriality of crimes and civil cause of action in common law and US history, this piece proposes the following template for defining when a crime or cause of action is "extraterritorial" for purposes of bringing the presumption into play, and when the presumption should be overcome.
If a federal statute declares certain acts to be bad or prohibited, and certain results of acts to be wrongful, the application of the statute remains in the core of US lawmaking authority if either an act-element or a result-element of a crime or cause of action occurs in the US. The presumption against extraterritoriality, then, would come into play when no element occurs in the US. Once the presumption is invoked, it can be overcome only if there is clear evidence of congressional intent that the statute should be applied in the given circumstances.
On this template, Morrison was correctly decided, though the presumption should not have been invoked. Kiobel, by contrast, was an appropriate case for using the presumption.
This model of what is "extraterritorial application" of a statute for purposes of the presumption would make it easier for persons acting outside the United States to understand when their actions will be governed by US law.