Legislative Jurisdiction, Judicial Canons, and International Law

John H. Knox, Wake Forest University

Abstract

From very early in U.S. history, Congress has enacted statutes whose terms have no geographic limit. In deciding how far those statutes reach, courts employ judicial canons, the best-known of which is the presumption against extraterritoriality, which states that “legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States.” Despite the apparent simplicity of this language, the Court has failed to employ it consistently and predictably. This article proposes a new approach: to resolve questions of legislative jurisdiction, the Court should reinvigorate an older judicial canon, the presumption that U.S. laws do not extend beyond the limits on legislative jurisdiction imposed by international law. Under the proposal, courts would look to the customary and treaty rules that set out the bases of legislative jurisdiction under international law, in order to determine whether to employ a presumption against the application of a statute.