Extraterritorial Common Law: Does the Common Law Apply Abroad?
Citation: 102 Geo L.J. 301 (2014)
The extraterritorial scope of U.S. law is of profound importance to our courts as they confront transnational tort claims stemming from foreign-based human rights violations, acts of terrorism, and other harms occurring all over the globe. Scholars to date have focused on the extraterritorial application of federal statutes, such as the Alien Tort Statute, while devoting far less attention to the extraterritorial application of state law and almost none to state common law. Recently, however, the Supreme Court has invoked and revitalized the statutory presumption against extraterritoriality to restrict application of federal statutes beyond U.S. borders. Soon, most plaintiffs may be left only to remedies under state law, and courts and scholars alike will confront whether state common law should be subject to the same kind of presumption against extraterritoriality that applies to federal statutes. Our courts cannot sensibly resolve these claims without a principled understanding or theory of the geographical reach of our common law.
This Article argues against new or presumptive limits on the extraterritorial application of the common law. It breaks new ground by laying a foundation to establish why the geographical scope of the common law should differ from the geographical scope of statutes. First, this Article shows that, under the Erie doctrine, state courts—not federal courts—should decide the geographical reach of their common law, as they already do under well-established choice-of-law rules. Second, this Article shows how jurisprudential differences between the common law and statutes explain why the common law—perhaps counterintuitively—should not be subject to a presumption against extraterritoriality. This analysis holds significant implications for the future of human rights and other transnational tort claims in U.S. courts and for the endurance of extraterritorial common law.