CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Wednesday, April 24, 2013

Clopton on the Presumption Against Extraterritoriality

Zachary D. Clopton (United States Attorney's Office – Northern District of Illinois) has posted Replacing the Presumption Against Extraterritoriality (Boston University Law Review, Forthcoming) on SSRN. Here is the abstract:

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. Yet the presumption’s continual invocation belies a deeper reality — 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, due process, and predictability 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 fail to account for a second reality — that the presumption against extraterritoriality has been applied uncritically to all types of cases. Instead, different types of cases call for different rules: the Charming Betsy doctrine for private civil litigation; a rule of lenity for criminal cases; 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.

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