Applying Domestic Statutes to Foreign Conduct: How Much Does Kiobel Touch and Concern the Presumption Against Extraterritorial Application

Authors

Jessica Neer McDonald

Abstract

This paper examines a tumultuous history of applying United States law to foreign conduct in United States federal courts and the impact of recent Supreme Court decisions in this area. Despite its inconsistent application, the presumption against extraterritorial application may bridle Article III courts’ authority of applying domestic law to foreign conduct. Notably, a complicated test of displacing the presumption has emerged from the recent Supreme Court case of Kiobel v. Royal Dutch Petroleum Co., which concerned foreign conduct under the Alien Tort Statute (“ATS”). The test states the presumption is overcome if the foreign conduct “touches and concerns” the United States with sufficient force. This paper further analyzes the touch and concern test, which provokes residency, citizenship, and jurisdictional considerations. These considerations expand beyond ATS litigation for guiding litigants and courts on when the presumption may be displaced to apply domestic laws to foreign conduct.

Recommended Citation

Jessica Neer McDonald, Applying Domestic Statutes to Foreign Conduct: How Much Does Kiobel Touch and Concern the Presumption Against Extraterritorial Application, 47 U. MIA Inter-Am. L. Rev. 354 (2016)
Available at: https://repository.law.miami.edu/umialr/vol47/iss2/9