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Monday, June 20, 2016

More on RJR Nabisco and extraterritoriality

Following on Andra's post on RJR Nabisco:

It makes no sense for a statute's private right of action not to be coextensive with the substantive law being applied. Ginsburg is correct that there should be a link, not separation, between prohibited activities and authorized remedies. At the very least, that should be the presumption, unless Congress provides otherwise in the cause of action itself. And a statute that says "[a]ny person injured in his business or property by reason of a violation" of some substantive law--where that substantive law has been (and, per Congress, can be) violated by that extraterritorial conduct--should allow for a claim for extraterritorial violation. By applying the presumption of extraterritoriality to the cause of action, the Court now requires Congress to draft the cause of action not only to link the right of action to the substantive law being enforced, but also to include language dealing with extraterritoriality. For example, I presume this case now means that, even if the Fourteenth Amendment applies extraterritorially, a § 1983 claim will not lie for such a violation, since nothing in the statute speaks to extraterritoriality (indeed, the purpose of that statute was bringing states into line within their own borders following the Civil War and has nothing to do with foreign conduct).

The culprit in this is Kiobel v. Royal Dutch Petroleum (2013), where the Court applied the presumption of extraterritoriality to the Alien Tort Statute, a purely jurisdictional provision. But the ATS is unique in that it grants not only adjudicative jurisdiction, but also prescriptive jurisdiction to create federal common law based on the law of nations as of 1789 and its analogues; the question in Kiobel was whether the grant of prescriptive jurisdiction could include common law applying extraterritorially. In other words, the courts were not only creating the right of action, they also were creating the law that "directly regulate[s] conduct or afford[s] relief." The end result in Kiobel is that the substantive common law the courts could create did not reach extraterritorial conduct (because Congress did not grant the courts the power to establish such common law), so neither could the court-created right of action.

Under RICO, however, the law regulating conduct does apply to extraterritorial conduct, per Congress. The right of action should, as well.

Posted by Howard Wasserman on June 20, 2016 at 05:16 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink


This is not quite correct. The conduct-regulating rule in Kiobel came from international, not domestic, law. Kiobel explained that the ATS “does not directly regulate conduct or afford relief. It instead allows federal courts to recognize certain causes of action based on sufficiently definite norms of international law.” Indeed the Court framed the relevant question under the ATS as “whether the court has authority to recognize a cause of action under U.S. law to enforce a norm of international law.” The prescriptive jurisdiction here derives from international law, and therefore the presumption makes no sense since international law by definition applies everywhere. The monism/dualism distinction, or whether international law must somehow be incorporated into U.S.law, does not carry any real value here if the U.S. law faithfully incorporates the conduct-regulating substantive international law.

I have a more detailed discussion of this in my Cornell Law Review Article, "What is Extraterritorial Jurisdiction" -- http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2363695 -- at pgs. 1337-1339 if you are interested. Definitely a wacky area of law.

Posted by: Anthony Colangelo | Jun 22, 2016 10:17:52 AM

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