Thomas B. Bennett (New York University (NYU) - School of Law) has posted The Canon at the Water's Edge (New York University Law Review, Vol. 87, April 2012) on SSRN. Here is the abstract:
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What motivates substantive presumptions about how to interpret statutes? Are they like statistical heuristics that aim to predict Congress’s most likely behavior, or are they meant to protect certain underenforced values against inadvertent legislative encroachment? These two rationales, fact-based and value-based, are the extremes of a continuum. This Note uses the presumption against extraterritoriality to demonstrate this continuum and how a presumption can shift along it. The presumption operates to diminish the likelihood that a federal statute will be read to extend beyond the borders of the United States. The presumption has been remarkably stable for decades despite watershed changes in the principles — customary international law and conflict of laws — that once supported it. As the presumption’s normative justifications have diminished, a new justification has grown in importance. Today, the presumption is often justified as a stand-in for how Congress typically legislates. This Note argues that this change makes the presumption less defensible but even harder to overcome in individual cases.
This is an impressive student note that carefully traces the interplay between two distinctly different rationales for a presumption against extraterritorial application of statutes. This is a topic on which the interpretation-construction distinction has particular clarifying power. For explication of the distinction, see The Interpretation-Construction Distinction; the core idea is that "interpretation" aims at the discovery of communicative content of a legal text, whereas "construction" determines the legal effect, frequently through intermediary legal rules (found, e.g., in court decisions).
Statutory canons are actually of two distinct types. Canons of Interpretation and Canons of Construction. Canons of statutory interpretation are rules of thumb; they summarize regularities in the determination of the linguistic meaning or communicative content of a statute. Canons of statutory construction are rules of law; they establish legal rules that govern the legal effect given to statutes.
Extraterritoriality implicates both interpretation and construction. Statutes are frequently worded in a way such that the semantic content of the statute does not include a territorial scope restriction: thus, a California criminal statute concerning murder might not specify that the its scope is restricted to murders that occur within the state of California. But the communicative content of such a statute does include such a scope restriction, because the author knows that the audience would understand the implied restriction to acts committed within the territory of the state. A canon that announces a presumption in favor of such a scope restriction is simply a rule of thumb--it makes explicit a background assumption that would operate even if it were implicit.
But scope restrictions on territoriality can serve a different function. Even if the communicative content of the statute is not limited to the territory of the enacting jurisdiction, there may be good reasons (of law, policy, or principle) to create a legal rule that restricts the statute's application. Thus, we could have a canon of statutory construction that appears, on its face, to be similar to rule of thumb embodied in the similar (but importantly distinct) canon of statutory interpretation.
Bennett's treatment of these issues is illuminating (although he does not use the vocabulary of the interpretation-construction distinction) and his piece is recommended.
