Extraterritoriality and Its Discontents: Limiting the Reach of U.S. Law

John H. Knox, Wake Forest University School of Law

Abstract

How far do U.S. laws reach beyond U.S. borders? Many statutes do not specify their geographic scope, instead using general terms that have no inherent limit. In construing those laws, federal courts presume that legislation applies only within the territory of the United States. The apparent simplicity of the presumption against extraterritoriality masks difficult issues, which the Supreme Court has been unable to resolve. For example, the Court has issued contradictory decisions on whether U.S. territory includes U.S. bases in other countries, on how the presumption applies to foreign actions with domestic effects, and on what evidence is necessary to overcome the presumption when it does apply. Lower courts have reflected and amplified these disagreements. The resulting jurisprudential chaos makes it impossible to predict with certainty how far federal statutes reach.

This article proposes that the Supreme Court bring coherence back to its jurisprudence by adopting a presumption against extrajurisdictionality. Under the proposal, courts would ask whether the extension of federal law to a situation would accord with the international law of legislative jurisdiction, which sets out bases for and limits on the reach of national laws. Situating the interpretation of ambiguous federal statutes in the context of international law may seem to be a radical idea, but it is the approach the Supreme Court took for more than 150 years, from the early nineteenth century to the second half of the twentieth. Looking to jurisdictional rather than territorial boundaries would avoid inadvertent international conflicts, effectuate reasonable assumptions of Congressional intent, and produce a more consistent, predictable jurisprudence.