SCOTUScast 7-12-16 featuring Cory Andrews
On June 20, 2016, the Supreme Court decided RJR Nabisco, Inc. v. The European Community. The European Community and 26 of its member states sued RJR Nabisco (RJR) in the U.S. District Court for the Eastern District of New York, alleging that RJR conducted a global money-laundering enterprise in violation of several laws, including the Racketeer Influenced and Corrupt Organizations Act (RICO), a federal statute. The alleged RICO enterprise involved the importation of illegal drugs into European countries by Colombian and Russian criminal organizations, with RJR helping to launder their drug money through a cigarette import-purchase scheme. Applying a presumption against extraterritorial application of federal law, the district court dismissed The European Community’s civil RICO claim. The U.S. Court of Appeals for the Second Circuit vacated that judgment and reinstated the RICO claim, however, concluding that various alleged predicates for RICO liability had been intended by Congress to apply extraterritorially, and that other offenses asserted sufficiently important domestic activity to come within RICO’s coverage. RJR subsequently obtained a writ of certiorari from the U.S. Supreme Court on the following question: whether, or to what extent, RICO applies extraterritorially.
By a vote of 4-3, the Supreme Court reversed the judgment of the Second Circuit and remanded the case. Justice Alito delivered the opinion of the Court, which determined that the question of RICO’s extraterritorial application really divides into two questions: (1) Do RICO’s substantive prohibitions, contained in §1962, apply to conduct that occurs in foreign countries? (2) Does RICO’s private right of action, contained in §1964(c), apply to injuries that are suffered in foreign countries? On the first question, the Court held that under the facts asserted in this case, RICO’s prohibitions did apply extraterritorially. On the second question, however, the Court held that §1964(c)’s private right of action did not overcome the presumption against extraterritoriality, and thus a private RICO plaintiff must allege and prove a domestic injury. Because in this case an earlier stipulation had resulted in waiver and dismissal of respondents’ domestic claims, the Court explained, their remaining RICO damages claims rest entirely on injury suffered abroad and must be dismissed.
Justice Alito’s majority opinion was joined in full by the Chief Justice and Justices Kennedy and Thomas, and as to Parts I, II, and III by Justices Ginsburg, Breyer, and Kagan. Justice Ginsburg filed an opinion concurring in part, dissenting in part, and dissenting from the judgment, in which Justices Breyer and Kagan joined. Justice Breyer filed an opinion concurring in part, dissenting in part, and dissenting from the judgment. Justice Sotomayor took no part in the consideration or decision of the case.
To discuss the case, we have Cory L. Andrews, who is senior litigation counsel for the Washington Legal Foundation. International & National Security Law Practice Group Podcast
United States foreign policy regarding terrorism, China, Iran, North Korea, Russia, and international trade are at the center of the election debate this year. Professor Henry Nau, the author of Conservative Internationalism: Armed Diplomacy Under Jefferson, Polk, Truman, and Reagan, has offered a framework for thinking about these geopolitical challenges. Avoiding the twin perils of overstretch and retrenchment, Professor Nau believes that the combination of force, diplomacy, and compromise used by these four presidents is the surest path to securing America’s interests while also promoting freedom. During this Teleforum, Professor Nau discussed his book, this year’s election, and how foreign policymakers should be thinking about America’s role in the world.
Short video featuring Paul Rosenzweig
- Professor Henry R. Nau, Professor of Political Science and International Affairs, Elliott School of International Affairs, The George Washington University.
- Matthew R.A. Heiman, Vice President, Chief Compliance & Audit Officer, Tyco International
Paul Rosenzweig, Professorial Lecturer in Law at the George Washington University, explains what encryption is and the legal issues that arise from its use. International & National Security Law Practice Group Podcast
On the eve of the British referendum to remain in the European Union, Phillip Booth of the Institute of Economic Affairs and Ilya Somin of George Mason University Law School discussed broader issues of devolution and secession, such as the extent to which secession should be allowed from various political systems and whether or not a right to it should be institutionalized. The also took a closer look at the possibility of a British exit, and what that would mean for the European Union and Britain as a whole.
International & National Security Law Practice Group Podcast
- Prof. Philip Booth, Editorial and Programme Director at the Institute of Economic Affairs and Professor of Insurance and Risk Management at Cass Business School
- Prof. Ilya Somin, Professor of Law, George Mason University School of Law
In the aftermath of the San Bernadino terrorist attack, the Federal Bureau of Investigations sought the assistance of Apple in its investigation. An Apple phone used by one of the terrorists included a function, which the FBI wanted Apple to defeat, that would automatically delete all stored information after ten failed hacking attempts. Defeating the function would have required Apple employees to write code, which Apple contended amounted to compelled speech. Privacy issues were also asserted, but countered, at least in part, by the fact that the user of the phone was deceased, and the phone was actually owned by a local government. After the FBI used other sources to get the information it sought, Apple moved against the FBI to disclose exactly whether and how it had bypassed the delete function. Our experts discussed this interesting matter and next steps.
- Prof. Justin (Gus) Hurwitz, Assistant Professor of Law, Nebraska College of Law
- Jamil N. Jaffer, Adjunct Professor of Law and Director, Homeland and National Security Law Program, George Mason University School of Law and former Chief Counsel and Senior Advisor, Senate Foreign Relations Committee