Applying Domestic Statutes to Foreign Conduct: How Much Does Kiobel Touch and Concern the Presumption Against Extraterritorial Application

University of Miami Inter-American Law Review, Aug 2016

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.

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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 0 This Student Note/Comment is brought to you for free and open access by Institutional Repository. It has been accepted for inclusion in University of Miami Inter-American Law Review by an authorized administrator of Institutional Repository. For more information , please contact 1 Follow this and additional works at: 2 University of Miami Inter-American Law Review - 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)


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Jessica Neer McDonald. Applying Domestic Statutes to Foreign Conduct: How Much Does Kiobel Touch and Concern the Presumption Against Extraterritorial Application, University of Miami Inter-American Law Review, 2016, pp. 354, Volume 47, Issue 2,