The Sometimes “Craven Watchdog”: The Disparate Criminal-Civil Application of the Presumption Against Extraterritoriality
Increasingly, courts must decide whether U.S. law applies extraterritorially. Courts largely resolve questions of extraterritorial scope using tools of statutory construction. Of these tools, the presumption against extraterritoriality has been ascendant. However, this presumption is subject to two divergent lines of cases: Morrison v. National Australia Bank Ltd. affirmed the strict operation of the presumption in civil cases, but United States v. Bowman continues to govern the presumption's looser role in criminal cases, thereby creating a doctrinal asymmetry. This Note furthers the argument that courts should reconcile Morrison and Bowman, by laying out three arguments for why an expansive Bowman exception is problematic and unsustainable. First, the two lines of cases create unjustified doctrinal incoherencies, given the interrelated contexts in which the presumption is applied and the rationales underlying the presumption. Second, an expansive exception to the presumption in criminal contexts undermines the smart allocation of authority between the branches of government. Finally, an expansive Bowman exception runs counter to the tradition of offering fair notice of criminal law's prohibitions. This Note asserts that these arguments counsel for the abrogation or, at least, substantial narrowing of the Bowman exception, to harmonize it with Morrison's stricter vision of the presumption against extraterritoriality.
S. Nathan Williams,
The Sometimes “Craven Watchdog”: The Disparate Criminal-Civil Application of the Presumption Against Extraterritoriality,
63 Duke Law Journal
Available at: https://scholarship.law.duke.edu/dlj/vol63/iss6/4