Presumptions Against Extraterritoriality in State Law
Vol. 53
February 2020
Page 1389
For the past three decades, the federal presumption against extraterritoriality has been the principal tool that the U.S. Supreme Court has used to determine the geographic scope of federal statutes. But the federal presumption does not apply to state statutes, the scope of which is a question of state law.
Descriptively, this Article surveys the presumptions against extraterritoriality found in state law. Twenty states currently apply such presumptions to state statutes, and those presumptions sometimes differ from their federal counterpart. Nearly as many states have rejected a presumption against extraterritoriality and determine geographic scope using ordinary tools of statutory interpretation. In other states, the status of a state presumption is unclear.
Normatively, this Article argues that states do not need presumptions against extraterritoriality because every state has conflicts rules to determine questions of priority when a case falls within the laws of more than one jurisdiction. State presumptions can also create confusion about how they fit with other conflicts rules and create inconsistency among state statutes and with state common law. Finally, this Article argues that state presumptions are not necessary to avoid conflict with foreign law in international cases.