27 April 2013

Two recent Supreme Court cases and two sides of the Extraterritoriality Canon

This is one of a series of posts about Justice Antonin Scalia and Bryan Garner's Reading Law: The Interpretation of Legal Texts. For similar posts, click here.

I wrote a previous post that addressed the issue of the Extraterritoriality Canon. A statute presumptively has no extraterritorial application (statuta suo clauduntur territorio, nec ultra territorium disponunt, p. 268).

Two recent cases discussed this concept, but came out on different sides. First, in Kirtsaeng v. John Wiley & Sons, Inc., Justice Breyer's majority opinion rejected this presumption--but never actually mentions it. Rather, he calls it a geographical limitation. So rather than starting from the idea that the Copyright Act presumptively has no extraterritorial application and then rebutting the presumption (because he can't--courts have long held that the Copyright Act doesn't apply extraterritorially), he starts with the presumption that no such limitation exists. In this way, he starts the argument on his side of the court (and Court, if you will).

Justice Ginsburg's dissent specifically addressed the presumption of extraterritoriality and in my opinion, is more persuasive than the majority.

Second, in  Kiobel v. Royal Dutch Petroleum, Chief Justice Roberts's majority opinion relied primarily on this canon in concluding that the Alien Tort Statute does not apply to the alleged conduct:
We therefore conclude that the presumption against extraterritoriality applies to claims under the ATS, and that nothing in the statute rebuts that presumption. "[T]here is no clear indication of extraterritoriality here," Morrison, 561 U. S., at ___ (slip op., at 16), and petitioners' case seeking relief for violations of the law of nations occurring outside the United States is barred.
The subject matter is lengthy and I won't quote anything else from either opinion here, but I recommend you read the opinions to get a sense of how the Court applies this presumption in recent cases.
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