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.

Harlan Cohen and Ingrid Wuerth have provided characteristically insightful comments about the overall strengths and weaknesses of the book. Cohen cautions that its “grand narrative” may make the outcomes of particular cases seem “overdetermined” and suggest that the Supreme Court is more “purposive” about its use of international law than is actually the case. Wuerth tactfully notes that the editors’ and authors’ “contemporary doctrinal claims” may have influenced the historical accounts.
The editors of this volume did indeed attempt to construct a “grand narrative” because it was through that narrative that we hoped to discover what had stayed the same and what had changed in the Supreme Court’s international law doctrine. But we did not know the whole story when we started and we learned much along the way, particularly about the periods between 1860 and 1945, which have received less scholarly attention. To cite just two examples, we were surprised by the strength of the Court’s treaty jurisprudence well into the twentieth century, a period Michael Van Alstine’s chapter calls “the golden age of treaties.” We were also surprised by the eclipse of customary international law in the early twentieth century as the nineteenth century staples of international law—“pirates, prizes, and privateers” in Mike Ramsey’s phrase—largely disappeared from the Court’s docket. Piecing together the grand narrative was made much easier by the incredibly talented group of authors we were privileged to work with. We think (and Cohen does not disagree) that there is value in knowing what changed and when, but we also agree with him that there is value in examining the trees that make up this forest. We hope the book may serve as a starting point for scholarship that expands upon, explains, and even challenges points in the narrative.
Wuerth’s concern that the doctrinal controversies of the present (and the contributors’ views on them) may cast a shadow on the book’s treatment of the past is certainly a fair one and one that we worked hard to minimize. It helped that the book’s three editors do not agree about all the doctrinal controversies of the present, and we deliberately chose authors who represent a spectrum of views. We also wrestled (almost) all references to future events into the footnotes. But it is nearly impossible to avoid the shadow of the present completely. To take my own chapter on customary international law from 1946-2000 as evidence, I focused on the interplay between Sabbatino and the alien tort cases, particularly on the question of federal common law, because that is what so much of the scholarship of the past 15 years has been about. Had the controversies of the present been different (the methods for determining customary international law, say), this chapter would undoubtedly have had a somewhat different focus. (On the other hand, the federal common law theme also ties together the interstate boundary cases of the second half of the twentieth century, about which I learned more than I ever thought I would.)
We look forward to continuing the discussion and will take the opportunity to respond when it seems appropriate.

[William S. Dodge is a Professor of Law at the University of California, Hastings College of the Law. One of his articles on extraterritoriality was cited in Justice Stevens’s concurring opinion.]

There is no doubt that Morrison v. National Australia Bank is a landmark opinion, not just because the Supreme Court addresses here, for the first time, the extraterritorial reach of U.S. securities law, but also for what the opinion tells us more generally about the presumption against extraterritoriality.

As Margaret Sachs has already recounted, the Courts of Appeals, under the Second Circuit’s leadership, had established two tests for applying § 10(b) of the Securities Exchange Act to cases with foreign elements. Under the effects test, § 10(b) applied to foreign misrepresentations causing substantial effects in the United States. Such effects could be shown if the shares were traded on an American exchange or if fraudulent materials were sent to investors in the United States. Under the conduct test, § 10(b) applied to substantial misrepresentations in the United States that caused losses abroad. (For a summary of the law as it used to be, see Vagts, Dodge & Koh, Transnational Business Problems 454-57 (4th ed. 2008).)

In Morrison, Justice Scalia, writing for the Court, held that the presumption against extraterritoriality applies to the Securities Exchange Act. One might have guessed this would lead the Court to reject the effects test and limit § 10(b) to fraudulent conduct in the United States. But in fact the Court did the reverse, eliminating the conduct test and endorsing a narrower version of the Second Circuit’s effects test. Section 10(b), the Court held, can apply to fraudulent conduct abroad but only if the shares in question are listed on an American exchange or otherwise sold in the United States. How can this be so?

In an article published more than a decade ago, I noted that there are at least three ways to understand the presumption against extraterritoriality: (1) that acts of Congress should presumptively apply only to conduct in the United States regardless of whether the conduct causes effects in the United States (Justice Holmes’s view in American Banana); (2) that acts of Congress should presumptively apply only to conduct that causes effects in the United States regardless of where the conduct occurs (Judge Bork’s view in Zoelsch v. Arthur Anderson & Co.); and (3) that acts of Congress should presumptively apply to conduct occurring within or having effects within the United States (Judge Mikva’s view in Environmental Defense Fund v. Massey). Because I believe the only proper basis for the presumption today is the notion that Congress is primarily concerned with domestic conditions, I argued that Judge Bork’s view—that acts of Congress should presumptively apply only to conduct that causes effects in the United States—was the correct one.

A majority of the Supreme Court now seems to agree. The basis for the presumption, Justice Scalia writes in Morrison, is “the perception that Congress ordinarily legislates with respect to domestic, not foreign matters.” Slip Op. 5-6. “[T]he focus of the Exchange Act,” he continues, “is not upon the place where the deception originated, but upon purchases and sales of securities in the United States.” Slip Op. 17. In other words, the location of the fraudulent conduct is irrelevant; what matters is whether the conduct affects transactions within the United States. Moreover, Judge Bork’s opinion in Zoelsch questioning the conduct test but endorsing the effects test is virtually the only lower court opinion for which Justice Scalia has a kind word in Morrison. Slip Op. 10-11.

I agree with and applaud this understanding of the presumption against extraterritoriality. (Ironically, my article was cited not by Scalia’s majority opinion but by Justice Stevens’s concurrence.) But Morrison sits uncomfortably alongside other opinions written by Justice Scalia and Justice Thomas (whom Scalia routinely joins on such questions), which have focused formalistically on the location of the conduct. In Pasquantino, to take the most obvious example, Justice Thomas (writing for a majority that included Scalia) rejected the argument by Justices Ginsburg and Breyer in dissent that the presumption against extraterritoriality barred application of the federal wire fraud statute to a scheme hatched in the United States to defraud Canada of tax revenue. “This domestic element of petitioners’ conduct is what the Government is punishing in this prosecution, no less than when it prosecutes a scheme to defraud a foreign individual or corporation,” wrote Thomas. Morrison distinguishes Pasquantino on the ground that the wire fraud statute prohibits any fraud while § 10(b) prohibits only fraud “in connection with the purchase or sale of any security registered on a national securities exchange or any security not so registered.” Slip Op. 23. But if the text of § 10(b) limits its reach, resort to the presumption should have been unnecessary in Morrison. And if resort to the presumption was relevant in Morrison to determine what fraud Congress had in mind with respect to § 10(b), it should have been equally relevant in Pasquantino to determine what fraud Congress had in mind with respect to 18 U.S.C. § 1343.

I would like to say that Morrison represents convergence on the principle that when courts construe regulatory statutes in an international context it is the effects that matter, not the conduct. Justices Breyer and Ginsburg have emphasized in cases like Small v. United States the “commonsense notion that Congress generally legislates with domestic conditions in mind.” And Justice Stevens adopted an effects view of the presumption as far back as his 1992 concurrence in Defenders of Wildlife v. Lujan. But in Morrison, Stevens and Ginsburg would have preserved the Second Circuit’s conduct test and so concurred only in the judgment, while Breyer joined the majority only to the extent it is consistent with his own inscrutable one page concurrence. So if Justice Scalia’s approach to the presumption in Morrison is inconsistent with his earlier views, at least he is in good company.

[We are grateful to continue our discussion on Samantar with a comment from Prof. William Dodge of the UC Hastings College of Law. Please keep following us for more thoughts in future posts and click "Related Posts" to see earlier contributions on this question.]

Like my colleague Chimene Keitner, I wrote an amicus brief supporting respondents (co-authored with Mike Ramsey), and I too am happy with the result in Samantar.

Although Curt Bradley’s post magnanimously notes that his position lost 9-0 in Samantar, it would be wrong to see the decision as a defeat for Curt and his co-author Jack Goldsmith. What they have succeeded in doing, despite the loss in Samantar, is to raise the issue of official immunity, which it is safe to predict will now be pleaded as a defense to many ATS and TVPA claims.

After Samantar, we know that the immunities of foreign officials (at least those not covered by treaties) are “properly governed by the common law.” I find it interesting that the Court never says “federal common law,” though I doubt anyone thinks the Court meant for the district court to apply the common law of Virginia on remand. Cf. Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 421-27 (1964) (holding that the closely analogous act of state doctrine must be applied as a matter of federal common law).

One critical issue the district court will have to address is the relationship between the (federal) common law of immunity and customary international law. Curt’s post finds it remarkable, that the Court didn’t say more about international law, but as footnote 14 of the opinion points out, the Court didn’t have to say anything in order to decide this case. In fact, sovereign immunity has long been treated as a question of comity in the United States rather than as a question of customary international law. The Schooner Exchange v. McFaddon, 11 U.S. 116, 136-37, 146 (1812), says that immunity is based on consent and may be withdrawn. (The analysis of Schooner Exchange gets somewhat complicated because international law at the time recognized that some rules of the law of nations were optional, a topic Curt has also written about recently.) The Santissima Trinidad, 20 U.S. 283, 353 (1822), expressly states that sovereign immunity is a matter of “public comity and convenience” and modern decisions like Verlinden are to the same effect. Thus, even if the House of Lords decision in Jones were a relevant statement of customary international law (and Chimene’s brief does an able job of explaining why it is not), it would not necessarily be applied directly as common law.

Another critical issue is the role of the executive. The Court’s brief history of foreign sovereign immunity skips from 1812 to 1938, omitting a period during which the executive’s determinations of immunity were not treated as conclusive. See, e.g., Berizzi Bros. Co. v. The Pesaro, 271 U.S. 562 (1926). Most (perhaps all) of the modern cases deferring to the executive’s determinations of official immunity have involved diplomatic or head of state immunity. It is one thing for the President to determine under his power to send and receive ambassadors who is a diplomat or under his recognition power who is a head of state, but perhaps quite another to determine whether torture is an “official act” for which a defendant is entitled to immunity. The Solicitor General’s brief took the position that the immunity of foreign officials is governed by “principles adopted by the executive branch,” but it is not immediately obvious where the President gets this law-making power from.

In any event, Samantar should provide lots of grist for the law review mill.

Picking up on the thread that Tim began and that Peter and David have advanced, I wonder if we might gain some insight by looking at the other incorporation debate that occurred during the twentieth century—the debate over which provisions of the Bill of Rights should be applied to the states through the Fourteenth Amendment. I claim no particular expertise on that subject, but my recollection is that Justice Black thought the whole package should be applied wholesale, while Justice Harlan would have proceed provision by provision and applied only those that were most fundamental. If one compares Black’s and Harlan’s opinions in Reid, the parallels are obvious.

Justice Kennedy picked up Harlan’s position in Verdugo and essentially repeats it in Boumediene. Under this approach, certain rights like due process may apply everywhere the government acts (though I suppose what process is due might well vary, just as it does domestically), while others that are seen more as particularities of American law (e.g. the warrant requirement) are not.

In the domestic incorporation debate, the Supreme Court did proceed provision by provision (Harlan’s approach), but ended up incorporating almost all of the Bill of Rights (Black’s result). My memory is that only indictment by a grand jury and the right to a civil jury trial have not been applied to the states. I am not suggesting that the result will be or should be the same in the international context. Differences in legal culture may mean that what would be considered fundamental within the United States (a jury in criminal cases) might not be considered fundamental outside it (in Puerto Rico). But the basic question—is the right sufficient fundamental—may be the same.

But by what metric do we judge that question? Do we look to the legal traditions of other nations to find common ground, or is it up to the intuitions of the justices of the Supreme Court? Judging from Boumediene, the answer would seem to be the latter. There is perhaps no right more fundamental in Anglo-American law than habeas corpus (it was one of the few written into the original Constitution), but I believe it is largely unknown outside legal systems descended from England’s.

Most of the discussion so far has been about the constitutional parts of Kal’s book, which is appropriate given its title. But the part I found most fascinating has nothing to do with the Constitution. In Chapter 4, Kal tries to explain why the United States began aggressively to apply its regulatory statutes extraterritorially after World War II and not before. He makes a number of important points. First, it was not simply a matter of more transborder effects because of economic interdependence. The global economy was more integrated in 1909 when the Supreme Court decided American Banana than in 1945 when the Second Circuit decided Alcoa. Kal identifies a number of other factors that explain the timing, including the rise of the regulatory state (you need regulations before you can apply them extraterritorially), the decline of formalism in legal thought, and a post-war order in which legal conflict did not lead to military conflict.

I would put more emphasis than Kal does on changes in legal thought, particularly the effect of changes in the conflict of laws, which justified departures from territoriality to judicial minds. Kal downplays the impact of American conflicts law, stating that it “simply reflected prevailing international legal concepts rather than the reverse.” (p. 100). This may be true for the nineteenth and early twentieth centuries, when the Supreme Court had a tendency to adopt and even constitutionalize international concepts of jurisdiction. But conflicts thinking remained an important influence on extraterritoriality from Alcoa to Timberlane, even as American conflicts parted ways with international law. Timberlane certainly does not illustrate the effect of international law on American conflicts—if anything, it illustrates the reverse. A decade ago, I tried to trace the impact of conflicts thinking on extraterritoriality, which those who are interested can find here.

While Kal does a good job of explaining why extraterritorial regulation based on effects did not develop earlier, he is less explicit on why it was initially only the United States that asserted it. American hegemony is not the answer. In the post-war world, the United States would have been no more inclined to go to war with Britain over an issue of extraterritorial regulation than Britain was inclined to go to war with the United States. The answer, I think, lies in a point that Kal makes at several other points in the book (pp. 95, 113-14, 229) but not in this context, the presence of foreign assets in the United States. The ability of any nation to apply its law extraterritorially depends critically on rules of personal jurisdiction and the enforcement of judgments—what I have called the “structural rules of transnational law.” Smaller countries like the U.K. had less ability to enforce antitrust judgments against foreign companies, and so were less likely to regulate them in the first place.

Of course, the United States is no longer the only big country in the regulatory game. For many years the EU has been enforcing its competition law extraterritorially, and China has blocked or conditioned three mergers involving foreign firms in just the first year of its Antimonopoly Law’s operation. The future of extraterritorial regulation is likely to look quite different from the past.

“Does the Constitution Follow the Flag?” is a fascinating book, and one of its great strengths is that it juxtaposes a number of different examples of how law and territory do not align, some of which have been largely forgotten. When most of us think about extraterritoriality, we think of issues like the extraterritorial application of antitrust law, the applicability of the Fourth Amendment to searches in Mexico, or whether detainees at Guantanamo can file habeas petitions. We are less likely to think about Status of Forces Agreements (SOFAs), consular jurisdiction, or the non-application of certain constitutional rights in Indian country.

Kal claims repeatedly in his book (and again in his post) that the primary function of all these kinds of extraterritoriality is the same—to manage legal differences. In the broadest sense, this is necessarily true. If all law and procedure were the same everywhere in the world, there would be no occasion to apply law extraterritoriality. But it seems to me that three fundamentally different phenomena are being discussed: (1) the protection of Americans abroad from foreign laws (e.g. consular jurisdiction and SOFAs); (2) the application of American laws to foreigners (e.g. extraterritorial antitrust); and (3) the limitation of U.S. government actors by the Constitution. To be sure there are relationships among these categories—in particular, (1) and (2) each raise issues (though different issues) under (3). But I am not convinced that each has the same primary function except at the very highest level of generality.

I would also take issue with the way in which the extraterritorial application of regulatory law manages legal differences. Kal claims it levels the playing field by making sure that foreign firms have to abide by the same rules as American ones (pp. 100, 228). That is not the rationale one finds articulated in U.S. cases applying antitrust or securities law extraterritorially, however, which talk much more about protecting consumers and investors than about protecting competitors. I might also point out that the Foreign Corrupt Practices Act—an example of extraterritorial regulation the book does not discuss—tips the playing field against American companies by subjecting them to restraints foreign firms did not face until some level of harmonization was achieved with the OECD Convention. My basic point here is that just as regulatory legislation can have a variety of purposes, so its extraterritorial application can have a variety of purposes. One of these might be to level the playing field for U.S. firms, but it is not the only, or even the dominant, one.

I just finished reading and absorbing Medellin today. I mentioned the case several times in my Constitutional Law I class in the fall, and students seemed quite intrigued by the interesting fact pattern and issues presented by the case.

Which leads me to the following question: Can readers think of a good place to teach Medellin in an introductory Constitutional Law class? At GW, our required, introductory Constitutional Law focuses on structural issues (federalism and separation of powers). That means that one large part of the class is spent on the Commerce Clause/Spending Clause/Tenth Amendment, and the other large part of the class tends to focus on Youngstown/war on terror cases/Chadha/executive privliege.

Where can you fit Medellin in? As part of the Youngstown discussion? Can you make the self-executing issue part of a Constitutional Law course? Have others thought of teaching Medellin in a Constitutional Law course, or have they perhaps taught Sanchez-Llamas in their classes before?

[Professor Bill Dodge teaches at Hastings College of Law and is an expert on the Alien Tort Statute]

Last September, Opinio Juris hosted an online workshop to consider the forthcoming article by Curt Bradley, Jack Goldsmith, and David Moore, “Sosa, Customary International Law, and the Continuing Relevance of Erie.”

The article has now come forth, and I have written a brief response for the Harvard Law Review Forum. In it, I argue that Sosa rejected Bradley, Goldsmith, and Moore’s position that courts must find positive authority for the incorporation of customary international law into the U.S. legal system before they may apply it in cases over which they have jurisdiction. I further argue that the author’s positive incorporation requirement lacks legitimacy because it is inconsistent with the original understanding and has no foundation in either statutory law or the Constitution, thus failing Erie’s own test of legitimacy. Finally, I defend the legitimacy of customary international law on the grounds that its requirements constrain the discretion of federal judges and that it may be overridden by Congress.

Another of the panels at the American Enterprise Institute conference last Tuesday dealt with customary international after Sosa v. Alvarez-Machain. The panel consisted of Julian Ku, David Moore, Beth Stephens, and myself, moderated by Jack Goldsmith.

Not surprisingly, the panelists had different views.Julian Ku advanced an argument that the President should exercise control over customary international law, in part because customary international law is based on state practice and because it is generally the executive who acts for the United States in establishing that practice. He suggested a rule of deference—perhaps even absolute deference—to the President’s interpretations of customary international law. One problem with this position, as Beth Stephens pointed out, is that it does not accord with what the Supreme Court actually did in Sosa. In the end, the Court agreed with the Bush Administration that brief arbitrary detentions do not violate any well-established norm of customary international law, but the Court engaged in its own analysis and showed no deference to the executive. There are at least two other objections. First, from an originalist point of view, the President had very little role to play in establishing the law of nations at the time of the Founding because that law rested on natural law rules deducible by courts rather than on state practice. Second, from a modern point of view, it is not only the practice of the United States that establishes customary international law, and unless the United States is a persistent objector during the creation of a new international law norm it will be bound by such a norm even if the President doesn’t like it.

David Moore, on the other hand, read Sosa as giving control over customary international law not to the executive but to Congress. Of course Congress has constitutional authority to “define and punish” offenses against the law of nations and is presumed also to be able to violate customary international law under the last-in-time rule. But Moore’s argument went beyond this, suggesting that the Sosa Court’s focus on congressional intent means that such intent should determine the extent to which customary international law is incorporated into the U.S. legal system more generally. Moore’s argument is original and provocative but in my view it misreads Sosa. First, it resurrects in somewhat different form the argument that the Supreme Court expressly rejected in Sosa—that Congress must expressly incorporate customary international law before courts may apply it. Second, it places too much reliance on the Sosa Court’s discussion of intent. In a case involving the interpretation of a statute, like the Alien Tort Statute, a focus on congressional intent is perfectly appropriate. That does not mean, however, that congressional intent has anything to say about the place of customary international law in the constitutional structure—its place under Article II’s take care clause, Article III’s grant of federal question jurisdiction, or Article VI’s supremacy clause, for example.

It was to those questions that I turned in my presentation, arguing that Sosa’s approach is to treat the incorporation of customary international law not in an all-or-nothing manner, but issue by issue, an interpretation I advanced in a previous article on Sosa. I argued that the original understanding was that the President is bound by customary international law under Article II, that cases arising under the law of nations are within the federal question grant of Article III, and (perhaps most controversially) that customary international law should bind the states under the supremacy clause.

Beth Stephens was the voice of reason and practicality. Among other things, she discussed Sosa’s impact on the corporate cases, arguing that the violations they allege are clearly actionable under Sosa. She also pointed out that the First Congress recognized both that private actors not acting under color of state law could violate some rules of the law of nations and that aiders and abettors of international law violations could be held liable. One such case, In re South African Apartheid Litigation, is currently pending before the Second Circuit and we will soon see if she is right.