Presumption against extraterritoriality, Transnational litigation, RJR Nabisco, Inc. v. European Community
Jurisdiction | Litigation | Transnational Law
In last Term’s RJR Nabisco, Inc. v. European Community, the Court finished transforming the presumption against extraterritoriality from a tool meant to effectuate congressional intent into a tool for keeping Congress in check. In the hands of the RJR Nabisco majority, the presumption has become less a method for interpreting statutes than a pronouncement on the proper scope of access to U.S. courts, a pronouncement that Congress must labor to displace. Besides the worrisome implications for separation of powers, the majority’s opinion was also disappointing on practical grounds. By applying the presumption too aggressively, the Court missed an opportunity to provide much-needed guidance to judges on how to interpret statutes that rebut it. This Essay thus concludes with suggestions for judges about how to interpret statutes that do indicate Congress’s extraterritorial intent.
Gardner, Maggie, "RJR Nabisco and the Runaway Canon," 102 Virginia Law Review Online 134 (2016)