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Extraterritoriality And Comparative Institutional Analysis: A Response To Professor Meyer, Zachary D. Clopton, P. Bartholomew Quintans
Extraterritoriality And Comparative Institutional Analysis: A Response To Professor Meyer, Zachary D. Clopton, P. Bartholomew Quintans
Cornell Law Faculty Publications
In the last few years, the Supreme Court has applied the presumption against extraterritoriality to narrow the reach of U.S. securities law in Morrison v. National Australia Bank and international-law tort claims in Kiobel v. Royal Dutch Petroleum. By their terms, these decisions are limited to the interpretation of ambiguous federal statutes and claims under the Alien Tort Statute. A potential unintended consequence of these decisions, therefore, is that future plaintiffs will turn to common-law causes of action derived from state and foreign law, potentially filing such suits in state courts. These causes of action may include “human rights claims …
Replacing The Presumption Against Extraterritoriality, Zachary D. Clopton
Replacing The Presumption Against Extraterritoriality, Zachary D. Clopton
Cornell Law Faculty Publications
The presumption against extraterritoriality tells courts to read a territorial limit into statutes that are ambiguous about their geographic reach. This canon of construction has deep roots in Anglo-American law, and the U.S. Supreme Court recently reaffirmed this principle of statutory interpretation in Morrison v. National Australia Bank and Kiobel v. Royal Dutch Petroleum. Yet as explained in this Article, none of the purported justifications for the presumption against extraterritoriality hold water. Older decisions look to international law or conflict-of-laws principles, but these bodies of law have changed such that they no longer support a territorial rule. Modern courts suggest …
Extraterritoriality And Extranationality: A Comparative Study, Zachary D. Clopton
Extraterritoriality And Extranationality: A Comparative Study, Zachary D. Clopton
Cornell Law Faculty Publications
International lawyers are familiar with the concept of extraterritoriality the application of one country's laws to persons, conduct, or relationships outside of that country. Yet the transborder application of law is not limited to international cases. In many states, the presence of indigenous peoples, often within defined borders, creates an analogous puzzle. This Article begins a comparative study of foreign- and native-affairs law by examining the application of domestic laws to foreign facts ("extraterritoriality") and to indigenous peoples, often called "nations" ("extranationality"). Using a distinctive double-comparative perspective, this Article analyzes extraterritoriality and extranationality across three countries: the United States, Canada, …