Abstract
The judge-made presumption against extraterritoriality has recently become a motley patchwork of eccentric and sometimes contradictory doctrines seemingly stitched together for one, and only one, mission: to deprive plaintiffs the right to sue in U.S. courts for harms suffered abroad. It lumbers along, blithely squashing precedent, principle, statutory text, and legislative intent—all to heed its abiding and single-minded obsession. The Supreme Court has so far mangled the scope of the Securities Exchange Act and the Alien Tort Statute (ATS), and, in RJR Nabisco v. European Community, has placed another statute—The Racketeer Influenced and Corrupt Organizations Act (RICO)—on the chopping block. The major surgery performed was amputating RICO’s private right of action for extraterritorial offenses and replacing it with a much stubbier appendage limited to injuries suffered on U.S. territory.
Highlights
The judge-made presumption against extraterritoriality has recently become a motley patchwork of eccentric and sometimes contradictory doctrines seemingly stitched together for one, and only one, mission: to deprive plaintiffs the right to sue in U.S courts for harms suffered abroad
The Supreme Court has so far mangled the scope of the Securities Exchange Act[1] and the Alien Tort Statute (ATS),[2] and, in RJR Nabisco v
The major surgery performed was amputating Racketeer Influenced and Corrupt Organizations Act (RICO)’s private right of action for extraterritorial offenses and replacing it with a much stubbier appendage limited to injuries suffered on U.S territory
Summary
Vol 110 elaborations that, in practice, defeat its intended purpose and allow the Court complete discretion to ignore congressional directives. Kiobel did something new with the presumption by applying it to the cause of action authorized by a jurisdictional statute. The problem was that the statute Kiobel addressed, the ATS, was—according to the Court itself—“strictly jurisdictional.”[7] The Court’s solution was to apply the presumption to the cause of action the ATS authorized. This alone was odd, or at least novel. While purporting not to be construing the ATS itself in light of the presumption, the Court wound up construing the ATS through the lens of the presumption to determine whether and how it applied to the cause of action the ATS authorized.[8] Given Kiobel’s application in the lower courts, I am worried that this loose language will be read to extend the presumption to subject-matter jurisdiction statutes more generally
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