New Extraterritoriality: Morrison v. National Australia Bank, Legislative Supremacy, and the Presumption against Extraterritorial Application of American Law

Abstract

The Supreme Court has recently rewritten another area of law: extraterritorial application of United States federal statutes. Last term, Morrison v. National Australia Bank jettisoned decades of settled law, casting doubt on long-accepted practices of statutory construction and instructing the lower courts to turn a deaf ear to indications of congressional intent any subtler than the proverbial meat axe. The straightforward presumption that American law ordinarily does not apply outside the territory of the United States has now morphed into an innovative two-step process that first marginalizes Congress and then showcases judicial creativity.