Understanding the Presumption Against Extraterritoriality

Abstract

What does the presumption against extraterritoriality mean? There are at least three possibilities. First the presumption might mean that acts of Congress should apply only to conduct that occurs within the United States, unless a contrary intent appears, regardless of whether that conduct causes effects in the United States. This is the traditional view of the presumption that Justice Holmes articulated in American Banana. Second, the presumption might mean that acts of Congress apply only to conduct that causes effects within the United States, unless a contrary intent appears, regardless of where that conduct occurs. Judge Bork adopted this view in Zoelsch v. Arthur Anderson & Co. Third, the presumption might mean that acts of Congress apply to conduct occurring within or having an effect within the United States, unless a contrary intent appears. This is how Chief Judge Mikva read the presumption in Environmental Defense Fund v. Massey.

I argue that only the notion that Congress generally legislates with domestic concerns in mind is a legitimate basis for the presumption against extraterritoriality. This leads me to agree with Judge Bork that under the presumption, acts of Congress should presumptively apply only to conduct that causes effects within the United States regardless of where that conduct occurs. I further argue that, if this is the basis for the presumption against extraterritoriality, then the presumption should not be considered a clear statement rule and should be deemed rebutted when there is good reason to think that Congress was focused on something other than domestic conditions.