Extraterritorial Jurisdiction and Conflict of Laws
June 6, 2022
In a forthcoming Article, I take the Supreme Court’s recent jurisprudence on the presumption against extraterritoriality and view it through the lens of conflict of laws. In so doing, I attempt to show how the presumption mirrors features of conflicts doctrine and makes some of the same mistakes conflict law already has made. This list of mistakes includes, but is not limited to, giving courts broader discretion than the presumption may first appear to endow, generating foreign relations frictions, betraying the presumption’s own roots, and undermining the rule of law.
The Localization Mistake
As many readers likely know, in Morrison v. National Australia Bank, Justice Scalia laid out a two-step framework for gauging the extraterritorial reach of statutes: (1) does the statute clearly indicate extraterritoriality; and (2) if not, is the “focus” of the statute in the United States rather than abroad, rendering application of U.S. law domestic and thereby avoiding the presumption altogether. The Article contends that Morrison’s focus test basically returned the law of extraterritorial jurisdiction back to the first Restatement of Conflict of Laws, which “localized” a multijurisdictional event or transaction to one element of that event or transaction and transformed the entire multijurisdictional event through legal fiction to the place of the localization. Or, in Morrison’s terms, the court localizes the multijurisdictional event or transaction to the focus of the statute and transforms the entire multijurisdictional event through legal fiction to the place of the localization.
Of course, in the real world, when there is a domestic focus in a transnational case, those elements of the event or transaction that are foreign will be governed by U.S. law, potentially creating foreign relations frictions—frictions the Court in Morrison seemed totally blind to. This is ironic because while Morrison is replete with language about legislative supremacy, the focus test confers significant power on the judiciary to determine when a law applies extraterritorially. Moreover, Morrison completely cuts out the state consent foundation of the traditional approach’s a priori localization rules whereby states are deemed to have consented to the rules beforehand—creating a consent-based system of choice of law. In a world governed by Morrison, there is no ex ante consent whatsoever: it’s the law of the jungle where whatever a U.S. court says goes.
The Unilateralism Mistake
Next, Morrison’s test also aligns with undesirable features of the more modern governmental interest analysis of conflict of laws. Despite some doctrinal disarray in the lower courts as to what the foci of various statutes are, courts all agree on one thing: if the focus is domestic, U.S. law applies irrespective of the interests of foreign nations. Brainerd Currie’s interest analysis did much the same thing. According to Currie’s methodology, a court should look at the law of the forum, or lex fori; discern whether it has an interest in regulating the multijurisdictional dispute; and, if it does, apply forum law irrespective of the interests of foreign states—even if those states have a stronger interest in having their laws applied. The focus test similarly looks to the law of the United States by discerning the focus of its laws, and, if the focus is domestic, it applies U.S. law irrespective of the interests of foreign states—even if those states have a stronger interest in having their laws applied. Currie’s analysis came under severe criticism for a slew of reasons: trampling other states’ interests, causing interstate friction, marginalizing party rights, and frankly misapprehending state interests in the qualitatively different realm of multistate disputes. Morrison’s focus analysis does all the same things.
But the similarities don’t stop there. There’s also the predicate question of how to discern a state interest to begin with. Here again the similarities are striking. Both Morrison and Currie instructed courts to use the ordinary means of statutory construction. Crucially, the focus test is, once again, a thoroughgoing judicial exercise of statutory construction. Again, when a court unilaterally finds a domestic focus, it effectively projects statutes to reach abroad to regulate those elements of the dispute that are foreign—even if the foreign states have a greater interest in having their laws applied. All in all, the focus test perverts the first Restatement’s localization approach to authorize extravagant assertions of jurisdiction and borrows the worst part of Currie’s interest analysis to authorize the extension of U.S. law abroad without ever looking to the interests of other states in the international system.
The Foreign Relations Mistake
Furthermore, Morrison’s methodology contradicts the very roots of the presumption against extraterritoriality itself. The presumption was an outgrowth of another canon of construction called the Charming Betsy canon, which instructs courts to construe statutes so as not to conflict with international law, including international jurisdictional law, to avoid friction with foreign nations. At the canon’s birth, jurisdictional rules were heavily territorial and this canon grew out of that world. But while Charming Betsy adapted to evolutions in international law allowing for–and in some cases obliging–extraterritorial jurisdiction, the presumption against extraterritoriality remained (obviously) moored to territory. But the whole point of the Charming Betsy canon and the presumption it birthed was to avoid friction with foreign nations by avoiding judicial extensions of U.S. law abroad in violation of international law. The presumption against extraterritoriality now runs roughshod over those interests without even acknowledging them, betraying its original purpose.
Just as Morrison’s methodology features some of the worst parts of conflict of laws analysis, Charming Betsy features some of the best by taking international law into account so as to avoid friction with foreign nations. This approach is consistent with the one taken in the Restatement (Third) of Foreign Relations Law, which directed courts to consider foreign interests to determine whether to apply U.S. law abroad under international law. Indeed, this provision of the Restatement (Third) of Foreign Relations Law was modeled after the Restatement (Second) of Conflict of Laws. Both explicitly consider the needs of the interstate system and the interests of other states.
The Predictability Mistake
Finally, and critically, this multilateral test also adds predictability, crucial to the rule of law. The first Restatement of Conflict of Law’s localization rules were riddled with randomly applied “escape devices”—for instance, courts could characterize tort suits as contract suits or family law matters, substantive law as procedural law, civil law as penal law, or just simply refuse to apply the law as contrary to public policy. All of these devices left parties guessing at which law would apply and could catch them by surprise. Similarly, under the presumption against extraterritoriality, parties must guess beforehand at what a court might deem a statute’s focus to be, especially if courts are split. This leads to similarities with Currie’s approach which functionally left control of what law would apply in the hands of only one party—generally the party bringing suit. Although a multilateral approach certainly has play in its joints, parties can consult precedent, which combined with stare decisis gives a better idea of which law a court will apply. This is of supreme importance to a system designed to promote activity deemed beneficent to overall social welfare by promoting goods like commerce, travel, and communication because transnational actors will have a better idea of what law will govern their dispute.
We’ve been here before. When viewed through the lens of conflict of laws, the modern presumption against extraterritoriality is a dangerous anachronism. Conflict of laws has a lot to teach the presumption—now if only it would learn.