DETERMINING EXTRATERRITORIALITY BY THE REASONS BEHIND THE PRESUMPTION
A better approach for determining whether a claim involves extraterritoriality might start by asking what justifies the presumption against extraterritoriality. Then, one can determine whether the presumption applies based upon whether the situation triggers the rationale(s) behind the presumption. Although scholars have suggested at least a half dozen reasons for the presumption, (153) examining Supreme Court opinions reduces this number to essentially three: (1) the observational rationale that the Court has observed that Congress, whether based upon tradition or for whatever reason, intends most statutes to apply within only the United States, and so, in the absence of evidence of contrary intent one can assume that Congress intends any given statute to apply only within the United States; (2) the legislative purpose rationale that Congress does not care about what goes on outside the United States and therefore does not intend statutes to address what goes on outside the United States; and (3) the international relations rationale that applying U.S. law to events outside the United States can upset other countries, which is a risk courts should interpret statutes to avoid absent evidence that Congress really wants to take this risk. Although all three of these rationales can justify invoking the presumption against extraterritoriality in the easy cases in which no conduct or effect occurs within the United States, it turns out that only the third rationale can provide any sort of useful guideline for determining whether to invoke the presumption in the situation in which some conduct or effect occurs inside and some outside the United States.
The Observational Rationale
In Morrison, the Court explained that the presumption against extraterritoriality "rests on the perception that Congress ordinarily legislates with respect to domestic, not foreign matters." (154) One interpretation of this phrase is what I will label the observational rationale for the presumption--the Court has observed that Congress does not intend most statutes to apply extraterritorially and so, in the absence of evidence to the contrary, one would assume that any given statute does not apply extraterritorially. Of course, this raises a question as to how the Court knew that Congress does not intend most statutes to apply extraterritorially. If, in fact, statutes are generally silent on their territorial reach, then the Court might have engaged in a circular exercise in which it used the presumption in order to make the observation that justifies the presumption. (155) If statutes sometimes speak to their territorial reach, (156) then this creates an interesting question as to what this should tell us about the meaning of statutes which are silent on the topic. (157)
In any event, the problem with this observational rationale is that it does not tell us how much territorial connection avoids the presumption. Specifically, the observational rationale tells us that Congress ordinarily does not intend to apply the various nonterritorial principles (158) in establishing the reach of its legislation. Accordingly, a court would logically demand evidence in the language or purpose of the statute before concluding that the statute applies in a situation in which there is no territorial connection at all to the United States. Once we pass this minimal threshold, however, the observational rationale cannot tell us whether a given situation should trigger the presumption against extraterritoriality without some extensive observations about what Congress normally demands in terms of a territorial connection in order for its legislation to apply. Given the common silence of statutes, (159) the uncertain implications of those statutes that speak to the topic regarding the meaning of those that do not, (160) and the often sui generis territorial connections that might exist in different types of statutes, (161) it seems implausible that courts could credibly claim sufficient observational experience in order to figure out what is the norm. Hence, the observational rationale only gets us to the "half-full" viewpoint of extraterritoriality--extraterritoriality exists if there is absolutely no territorial contact--but not to any middle ground.
The Legislative Purpose Rationale
In ARAMCO--which marked the increased affinity of the Supreme Court for the presumption against extraterritoriality (162)--the Court identified two other purposes behind the presumption. First, it "serves to protect against unintended clashes between our laws and those of other nations which could result in international discord." (163) I will label this the international relations rationale. Second, it reflects the notion that, in legislating, Congress "is primarily concerned with domestic conditions." (164) I will label this the legislative purpose (or "not our problem") rationale. These rationales, while very different, are not mutually exclusive. The legislative purpose rationale asserts a lack of reason for applying U.S. law abroad, (165) whereas the international relations rationale asserts reasons for not applying U.S. law abroad. Hence, in a situation in which there may be some marginal legislative purpose served by applying U.S. law abroad, concern over international relations might tip the balance against doing so; whereas in a situation in which there may be some marginal impact on international relations, the lack of a strong impact on advancing the legislative purpose could tip the balance. On the other hand, the analysis of what is or is not an extraterritorial application of law sufficient to invoke the presumption against extraterritoriality may be quite different under these two rationales.
William Dodge has attempted to turn lemons into lemonade by claiming that Morrison's focus test is an effort to apply the legislative purpose rationale. (166) He argues that statutory "focus" means basing the presumption against extraterritoriality upon where the effect occurred that motivated the legislation; specifically, situations in which the motivating effect occurs inside the United States do not trigger the presumption against extraterritoriality, whereas situations in which the motivating effect occurs outside the United States trigger the presumption. (167) This builds on Professor Dodge's earlier work in which he argues that basing the presumption against extraterritoriality upon where the relevant effects occur is not only sensible--because Congress enacts laws to prevent undesired effects and generally cares only about such effects in the United States--but also reconciles various Supreme Court opinions dealing with potentially extraterritorial applications of law. (168)
The Court's opinion in Morrison provides support for Professor Dodge's thesis. Following the statement that the presumption is based upon the perception that Congress ordinarily legislates about domestic matters--from which one might draw the observational rationale for the presumption--the Morrison opinion quotes ARAMCOs statement that Congress is "primarily concerned with domestic conditions" and explains that the presumption exists regardless of conflict with foreign laws. (169) This may suggest the Court believed that the territoriality observed in congressional statutes stems from a limited legislative purpose rather than an international relations concern, or simply an unthinking application of legal tradition. Moreover, as discussed above, if one conceptualizes Morrison's location of the purchase or sale test in terms of conduct and effects, the test looks to the location of one effect (the purchase or sale at a price impacted by fraud) rather than the location of the defendant's wrongful conduct (the fraudulent misrepresentation). (170)
In the end, however, Professor Dodge's "effects" interpretation of Morrison faces the same problem as Morrison's focus test without this interpretation. To see why, return again to the classic cross-border shooting example. The general view of this example is that the conduct occurs where the shooter pulls the trigger and the effect occurs where the bullet fatally impacts the victim. (171) Following the logic of Professor Dodge's location of the effects argument, Congress is presumably concerned about the fatality. Hence, applying U.S. law to the situation in which the victim is standing on the U.S. side of the border would not trigger the presumption against extraterritoriality, whereas applying U.S. law when the shooter stands in the United States and the victim is across the border would trigger the presumption. (172) Incidentally, the same analysis should apply to a shooting across state borders in the United States. Under Professor Dodge's analysis, the legislature of the state in which the victim was standing would wish to prosecute, whereas the legislature of the state in which the shooter stood would be unconcerned.
Although this analysis might reflect a certain cold calculation, it is unlikely to reflect the intent of a legislature confronted with a cross-border shooting in which the shooter stood within its territory. We can say this with some confidence because the law in every state makes shooting at someone with intent to kill a crime--attempted murder--even if the shooter missed, (173) meaning that all the elements of at least some crime took place within the nation in which the shooter stood. This, in turn, forces us to ask why legislatures, in the case of crimes complete upon the attempt at harmful consequences (attempt crimes), punish conduct seemingly without any effect (in any territory) and what this tells us about legislative purposes and cross-border misconduct.
The rationales for punishing attempt crimes include: (1) deterring the underlying crime, (2) allowing police to intervene before successful completion of the underlying crime, and (3)...