Applying Domestic Statutes to Foreign Conduct: How Much Does Kiobel Touch and Concern the Presumption Against Extraterritorial Application
Applying Domestic Statutes to Foreign Conduct: How Much Does Kiobel Touch and Concern the Presumption Against Extraterritorial Application
Jessica Neer McDonald 0 1 2
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Applying Domestic Statutes to Foreign
Conduct: How Much Does Kiobel Touch
and Concern the Presumption Against
Extraterritorial Application
Jessica Neer McDonald*
This paper examines a tumultuous history of applying
United States law to foreign conduct in United States federal
courts and the impact of recent Supreme Court decisions in
this area. Despite its inconsistent application, the
presumption against extraterritorial application may bridle Article
III courts’ authority of applying domestic law to foreign
conduct. Notably, a complicated test of displacing the
presumption has emerged from the recent Supreme Court case of
Kiobel v. Royal Dutch Petroleum Co., which concerned foreign
conduct under the Alien Tort Statute (“ATS”). The test states
the presumption is overcome if the foreign conduct “touches
and concerns” the United States with sufficient force. This
paper further analyzes the touch and concern test, which
provokes residency, citizenship, and jurisdictional
considerations. These considerations expand beyond ATS litigation
for guiding litigants and courts on when the presumption
may be displaced to apply domestic laws to foreign conduct.
* J.D. 2016, University of Miami School of Law. I am deeply grateful to
Professor Annette Torres for her insight on drafts of this Note and United States
Magistrate Judge Edwin Torres for his inspiration on this topic. I would also like
to thank the editors of the Inter-American Law Review.
B. Concurrences ...................................................................372
IV. KIOBEL IN APPLICATION.........................................................373
A. Residency and Citizenship Considerations......................375 B. Jurisdictional Considerations..........................................378
V. CONCLUSION ..........................................................................381
I. INTRODUCTION
With great power comes great responsibility.1 Or does it?
Improved methods of travel, communication, and technology have
afforded greater ease in taking business and/or leisure international
within the last century. This power of globalization is widespread
and inevitable. Yet as people and business become increasingly
international, consequences for misconduct abroad become
increasingly difficult to remedy. Whether United States law may hold a
person or corporation responsible in federal courts for conduct
abroad is unpredictable, which suggests that the more people and
business expand internationally, the less likely they will be
accountable in the United States for conduct that occurs abroad.
Over the last century, Article III courts have variously expanded
and contracted their role in addressing these matters, mostly
contingent upon the court’s interpretation or disregard of a doctrine
referred to as the presumption against extraterritorial application.2 The
presumption against extraterritorial application is a canon of
statutory interpretation that assumes domestic law does not apply beyond
the United States, unless the operative statute explicitly calls for
application beyond domestic conduct.3 The extension of people and
business all over the world has intensified the need to understand
when domestic statutes may be applied to foreign conduct that
directly or tangentially affect the United States.4
Jurisprudence concerning the Alien Tort Statute (“ATS”)
provides an interesting lens through which federal statutes or common
law can guide foreign conduct in federal courts. The ATS is a
thirtythree word jurisdictional statute that remained dormant for close to
two centuries.5 The ATS was enacted as section 9 of the Judiciary
Act of 17896 and was not heavily utilized until it was resurrected in
1980 through the Second Circuit opinion of Filartiga v. Pena-Irala.7
It is the only statute of its kind in the world because it provides
noncitizens a civil remedy in United States courts for violations of
“the law of nations” or “a treaty of the United States.”8
In the seminal case of Filartiga, a Paraguayan family brought
suit in a United States federal court against a Paraguayan military
official for torturing their son in Paraguay.9 The Second Circuit
found that the “deliberate torture perpetrated under the color of
official authority violate(d) universally accepted norms of the
international law of human rights, regardless of the nationality of the
parties.”10 Filartiga thus opened the ATS as an avenue for human (...truncated)