In the last few years, the Supreme Court has applied the presumption against extraterritoriality to narrow the reach of U.S. securities law in Morrison v. National Australia Bank, Ltd. and international-law tort claims in Kiobel v. Royal Dutch Petroleum Co. By their terms, these decisions are limited to the interpretation of ambiguous federal statutes and claims under the Alien Tort Statute. A potential unintended consequence of these decisions, therefore, is that future plaintiffs will turn to common law causes of action derived from state and foreign law, potentially filing such suits in state courts. These causes of action may include “human rights claims that arise from multinationals’ corporate activity,” as well as “a range of claims by U.S. citizens when they are injured abroad, such as when they are victims of foreign terrorist activity.”

Professor Jeffrey A. Meyer’s important study observes that debates about extraterritoriality are likely to turn to common law causes of action, particularly as plaintiffs turn to these options in the wake of Kiobel. The thrust of Meyer’s article is a concern that future courts may consider applying the presumption against extraterritoriality to common law claims, an outcome Meyer believes is unwarranted. On Meyer’s account, courts apply the presumption to statutes to avoid the “intrusion on the coequal regulatory authority of foreign sovereign states.” Meyer argues that several features of common law justify insulating it from the presumption: common law is “common” in its universal content, “commoner” in its bottom-up origins, and “constrained” in its development.

Meyer’s article raises appropriate concern over an under-studied issue. Recognizing that a focus on statutory interpretation has obscured the relevance of common law to many debates about extraterritoriality, Meyer rightly focuses on post-Kiobel (and post-Morrison) state law claims. He also points out that conflict of laws has a role in these cases alongside the presumption against extraterritoriality. Meyer’s account is insufficient, however, when it comes to the comparison between common law and statutory law, and more importantly when it comes to the normative consequences of those comparisons for extraterritoriality. Meyer acknowledges many potential virtues of common law, but he does not consider judicial lawmaking in comparison to the legislative alternative. Even if Meyer is correct in his praise of common law, his analysis does not establish that all common law causes of action deserve extraterritorial treatment (subject to choice of law) while statutory ones do not. A review of Meyer’s three features of common law—that it is “common,” “commoner” and “constrained”—reveals why these comparative institutional considerations are necessary for a complete picture of extraterritoriality, and indeed present perhaps the best hope for achieving Meyer’s goals of consistency, access to justice in U.S. courts, and regulatory harmony between co-equal sovereigns.

Our comments in this essay are agnostic on the prescriptive reach of U.S. law—we take no position here on the merits of territoriality, universality, and all options in between. Instead, our question is whether judge-made common law should receive systematically different (indeed, more expansive) treatment than its statutory analog. By reviewing Meyer’s three features of common law, we hope to question the distinction with statutory law and call for further research on extraterritorial lawmaking across institutions.

Continue reading Extraterritoriality and Comparative Institutional Analysis: A Response to Professor Meyer on HeinOnline.