June 2006, Volume 92, Issue 4
Solving the Extraterritoriality Problem: Lessons from the Honest Services Statute
by Pamela Bookman
92 Va. L. Rev. 749 (2006)
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The presumption against extraterritoriality is a canon of statutory interpretation that directs courts not to apply ambiguous domestic statutes to conduct that occurred abroad. Since articulating the basic elements of the presumption in its 1991 Aramco decision, the Supreme Court has applied and expanded the presumption in a fragmented manner, muddling the doctrine to the point of thwarting its usefulness as a canon of statutory interpretation.
In the wake of Aramco, commentators discussed the proper scope of extraterritoriality doctrine, but much of this debate has since fallen silent. This Note seeks to revitalize the doctrine by identifying situations that courts recognize should trigger the presumption, and by suggesting how to modify the doctrine within the framework of existing Supreme Court cases so that the doctrine encompasses these situations. Appropriately addressing extraterritorial applications of statutes is increasingly important as the U.S. Government prosecutes foreign crimes more and more aggressively.
This Note identifies two main problems with the currently unclear state of extraterritoriality doctrine. First, the doctrine fails to provide courts with the proper tools to avoid creating foreign law without explicit permission from Congress. Second, the current doctrine unsettles the balance of powers between the United States and foreign sovereigns, and among the branches of the federal government. The recent case of United States v. Giffen illustrates these two problems. This Note argues that the presumption should go beyond the Aramco framework and incorporate more recent Supreme Court decisions. It should direct courts to examine whether individual statutory terms and the general nature of the criminal statute are extraterritorial, presuming that Congress intends for statutory terms to apply domestically and for U.S. courts not to create foreign law.
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