The Unpredictable Presumption Against Extraterritoriality

Abstract

In its 2010 decision in Morrison v. National Australia Bank Ltd., the Supreme Court reaffirmed a strict presumption against the extraterritorial application of federal statutes on the ground that the presumption provides “a stable background against which Congress can legislate with predictable effects.” In fact, the presumption has been anything but stable, and Morrison, which overturned forty years of circuit court precedent on the geographic reach of federal securities law, does nothing to make it more predictable. In a previous article, I argued that the Court should reject a strict presumption against extraterritoriality in favor of a renewed version of an older canon: a presumption against the extension of statutes beyond limits set by the international law of legislative jurisdiction, or a presumption against extrajurisdictionality. In this article, I explain how Morrison exacerbates the confusions inherent in the Court’s unmoored jurisprudence on the extraterritorial application of statutes, and describe how the circuit court decisions it rejected actually illustrate the virtues of a presumption against extrajurisdictionality.

Keywords: Presumption Against Extraterritoriality, Securities Law

JEL Classification: K22, K33