International Law in the U.S. Supreme Court: Professor Alford on Extraterritoriality

by William S. Dodge

The joy of this project was making the kind of discovery Roger Alford recounts in his post. Alford’s chapter on international law as interpretive tool from 1901 to 1945 discusses, among other things, the Supreme Court’s various approaches to the extraterritorial reach of statutes during that period. Among these approaches was the government purpose test of Unites States v. Bowman (1922).

It is interesting to compare Bowman to the Supreme Court’s 2010 decision in Morrison v. National Australia Bank. In Morrison, the Court applied the presumption against extraterritoriality to the antifraud provisions of the Securities Exchange Act. But the Court reoriented the presumption away from a mechanical determination of where the prohibited conduct occurred (Florida in this case), instructing lower courts to examine the “focus” of the statute. Morrison’s “focus” in some ways echoes Bowman’s “purpose.”

I have argued on this blog that the “focus” (or if you prefer, “purpose”) of congressional legislation is generally to prevent harms in the United States and that Morrison adopts an effects test, albeit a narrower one than the Second Circuit had applied in securities litigation. I won’t repeat those arguments, but for those who are interested there is more here and here.

To my mind, another interesting thing about Alford’s chapter is the way the presumption against extraterritoriality started to become detached from international law during his period. That process continued in Foley Bros. v. Filardo (1949), decided just after Alford’s period, in which the Court first articulated the modern justification for the presumption—“that Congress is primarily concerned with domestic conditions”—the justification the Court repeated in Morrison.

http://opiniojuris.org/2011/07/26/international-law-in-the-u-s-supreme-court-professor-alford-on-extraterritoriality/

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