In two recent decisions, Morrison v. National Australia Bank, 130 S. Ct. 2869 (2010), and Kiobel v. Royal Dutch Petroleum, 133 S. Ct. 1659 (2013), the Supreme Court emphatically reaffirmed the longstanding presumption that federal statutes do not apply outside the territorial United States absent a “clear indication” to the contrary. Although Morrison and Kiobel involved civil suits under section 10(b) of the Securities Exchange Act and the Alien Tort Statute (“ATS”) respectively, this Article contends that the Court’s holdings ought to similarly restrict the extraterritorial application of federal criminal law. That is because Morrison and Kiobel instruct courts on how they should interpret the reach of statutes generally—not just civil ones like section 10(b) and the ATS. Consequently, a host of criminal laws that prosecutors have routinely applied extraterritorially in the past, but whose geographic scope is facially ambiguous, ought to be reinterpreted as reaching domestic conduct only. Such statutes encompass not just securities fraud, but conduct as varied and significant as antitrust violations, racketeering, drug trafficking, mail fraud, and weapons possession.
Taking the Presumption Against Extraterritoriality Seriously in Criminal Cases after Morrison and Kiobel,
Loy. U. Chi. L. J.
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