Minding the Empagran Gap

Abstract

The Supreme Court has made clear how it expects courts to analyze the presumption against extraterritoriality as applied to federal statutes. But it has not provided similarly clear guidance for what comes after: how courts should determine the reach of statutes that do rebut the presumption against extraterritoriality? The closest the Court has come to an answer is F. Hoffman-La Roche Ltd. v. Empagran S.A., in which the Court explained that it “ordinarily construes ambiguous statutes to avoid unreasonable interference with the sovereign authority of other nations.” The Court was perhaps purposefully vague, however, when it came to what “unreasonable interference” might mean, nor have the lower courts settled on an answer. Reflecting this uncertainty, the new Restatement (Fourth) of the Foreign Relations Law of the United States acknowledges that there may be a limit on the reach of an extraterritorial statute without settling on how that limit should be determined (beyond categorizing it as an act of statutory interpretation). This essay explores the Empagran “gap” in the Court’s—and thus the Restatement (Fourth)’s—treatment of extraterritorial federal statutes. It argues that the Restatement (Fourth)’s collection of statutory interpretation tools is insufficient to address fully the reach of extraterritorial federal statutes. Further, the current indeterminacy of this analysis carries costs in terms of possible doctrinal distortion. What the gap calls for is a conflicts of law analysis focused on the question of priority, which is effectively what the lower courts have been doing. But explicitly adopting a conflicts of law approach raises its own challenges, ones that are potentially surmountable but will require significant work. The essay thus concludes on an imperfect but pragmatic note, mirroring the Restatement (Fourth)’s embrace of constructive ambiguity to suggest how the gap might be narrowed, even if not completely resolved.