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The Frankenstein’s Monster of Extraterritoriality Law

Part of: AGORA: Reflections on RJR Nabisco v. European Community

Published online by Cambridge University Press:  20 January 2017

Anthony J. Colangelo
Anthony J. Colangelo*
Affiliation:
SMU Law School
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The judge-made presumption against extraterritoriality has recently become a motley patchwork of eccentric and sometimes contradictory doctrines seemingly stitched together for one, and only one, mission: to deprive plaintiffs the right to sue in U.S. courts for harms suffered abroad. It lumbers along, blithely squashing precedent, principle, statutory text, and legislative intent—all to heed its abiding and single-minded obsession. The Supreme Court has so far mangled the scope of the Securities Exchange Act and the Alien Tort Statute (ATS), and, in RJR Nabisco v. European Community, has placed another statute—The Racketeer Influenced and Corrupt Organizations Act (RICO)—on the chopping block. The major surgery performed was amputating RICO’s private right of action for extraterritorial offenses and replacing it with a much stubbier appendage limited to injuries suffered on U.S. territory.

Type
AGORA: Reflections on RJR Nabisco v. European Community
Information
AJIL Unbound , Volume 110 , 2016 , pp. 51 - 56
Copyright
Copyright © American Society of International Law 2016

References

1 See Morrison v. Nat’l Australia Bank Ltd., 561 U.S. 247 (2010).

2 See Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013).

3 RJR Nabisco, Inc. v. European Community, 136 S. Ct. 2090 (2016).

4 Id. at 2099-2100, slip op. at 7-8.

5 Kiobel, 133 S. Ct. at 1664.

6 Id. (citing and quoting Morrison, 561 U.S. at 253-254).

7 Id.

8 As I’ve explained elsewhere,

although the Court strained to cabin the presumption’s work “to claims under the ATS,” it invariably had to ask about the statute itself, concluding that “nothing in the [ATS] rebuts that presumption.” And once that inevitable statutory inquiry is made, it becomes pellucid that no principled distinction exists between gauging the presumption’s applicability to the ATS on the one hand, and its applicability to [the subject matter jurisdiction statute in Morrison] on the other, and that Kiobel renders the law incoherent.

Colangelo, Anthony J., What is Extraterritorial Jurisdiction?, 99 Cornell L. Rev. 1303, 1339 (2014)Google Scholar.

9 See, e.g., Warfaa v. Ali, 811 F.3d 653 (4th Cir. Feb. 1, 2016); Doe v. Drummond, 782 F.3d 576 (11th Cir. 2015); see also Colangelo, Anthony J. & Knight, Christopher R., Post-Kiobel Procedure: Subject Matter Jurisdiction or Prescriptive Jurisdiction, 19 UCLA J. Int’l L. & For. Aff. 49, 56 & n.35 (2015)Google Scholar.

10 Colangelo and Knight, supra note 9 at 56 & n.33.

11 Cause of Action, Black’s Law Dictionary (10th ed. 2014).

12 RJR, 136 S. Ct. at 2101, slip op. at 9.

13 William S. Dodge, The Presumption Against Extraterritoriality Still Does Not Apply to Jurisdictional Statutes, Opinio Juris (July 1, 2016, 4:57 PM).

14 Attorney Gen. of Canada v. R.J. Reynolds, 268 F.3d 103, 105 (2d Cir. 2001); cf. id . at 137 (Calabresi, J., dissenting), cert. denied, 537 U.S. 1000 (2002).

15 United States v. Palmer, 16 U.S. (3 Wheat.) 610 (1818).

16 RJR, 136 S. Ct. at 2100, slip op. at 8.

17 Id. at 2103, slip op. at 10.

18 Id. at 2116, slip op. at 8 (Ginsburg, J., dissenting).

19 Id . at 2106, slip op. at 15 (quoting Sosa v. Alvarez-Machain, 542 U.S. 692, 727 (2004)).

20 Sosa, 542 U.S. 692, 727.

21 Id.

22 Weiss v. Nat’l Westminster Bank, PLC, 242 F.R.D 33, 49 (E.D.N.Y. 2007).

23 Sedima, S.P.R.L. v. Imrex Co. Inc, 473 U.S. 479, 498 (1985).

24 RJR, 136 S.Ct. at 2116, slip op. at 8 (Ginsburg, J., dissenting).

25 See e.g ., Sedima, 473 U.S. at 483, 488.

26 On top of all this is that RICO’s private right of action was modeled after the Clayton Act’s private right of action, and courts had interpreted that to extend to causes of action arising abroad.

27 See RJR Nabisco v. European Community, No. 15-138, Brief for Petitioners, ii (Dec. 2015) (listing parties to the proceeding).

28 This seems to fit perfectly within Hannah Buxbaum’s consent-based approach to the use of domestic litigation to address transnational regulatory problems, see Buxbaum, Hannah L., Transnational Regulatory Litigation, 46 VA. J. Int’l L. 1 (2006)Google Scholar.

29 RJR, 136 S. Ct. at 2108, slip op. at 16.

30 Id. at 2103, slip op. at 10.

31 Id. (quoting in part Morrison, 561 U.S. at 265).