Presumptions Against Extraterritoriality in State Law

Abstract

For the past three decades, the federal presumption against extraterritoriality has been the principal tool that the U.S. Supreme Court has used to determine the geographic scope of federal statutes. But the federal presumption does not apply to state statutes, the scope of which is a question of state law.

Descriptively, this article surveys the presumptions against extraterritoriality found in state law. Twenty states currently apply such presumptions to state statutes, and those presumptions sometimes differ from their federal counterpart. Nearly as many states have rejected a presumption against extraterritoriality and determine geographic scope using ordinary tools of statutory interpretation. In other states, the status of a state presumption is unclear. In determining geographic scope, state courts generally do not distinguish between interstate and international cases. States have also adopted a range of positions on how state presumptions relate to state conflicts rules.

Normatively, this article argues that states do not need presumptions against extraterritoriality because every state has conflicts rules to determine questions of priority when a case falls within the laws of more then one jurisdiction. State presumptions can also create confusion about how they fit with conflicts rules and create inconsistency among state statutes and state common law. Finally, this article argues that state presumptions are not necessary to avoid conflict with foreign law in international cases.

Keywords: extraterritorial, presumption against extraterritoriality, statutory interpretation, state law