Extraterritorial Common Law: Does the Common Law Apply Abroad?

Abstract

The extraterritorial scope of U.S. law is of profound importance to our courts as they confront transnational tort claims stemming from foreign-based human rights violations, acts of terrorism, and other harms occurring in foreign places all over the globe. Courts and scholars to date have focused on the extraterritorial application of federal statutes such as the Alien Tort Statute, while devoting far less attention to the extraterritorial application of state law and almost none to state common law. This Article argues against new or presumptive limits on the extraterritorial application of the common law. It breaks new ground by laying a foundation to establish why the geographical scope of the common law should differ from the geographical scope of statutes. First, this Article shows that, under the Erie doctrine, state courts — not federal courts — should decide the geographical reach of their common law, as they already do under well-established choice-of-law rules. Second, this Article shows how inherent differences between the common law and statutes explain why the common law — perhaps counterintuitively — should have a broader geographical reach than statutes. As courts have increasingly confined the geographical reach of statutes (most recently with the Supreme Court's decision in Kiobel v. Royal Dutch Petroleum Co.), this analysis holds significant implications for the future of human rights and other transnational tort claims in U.S. courts and for the persistence of extraterritorial common law.