Containing the Uncontainable: Drawing RICO’s Border with the Presumption Against Extraterritoriality
By Miranda Lievsay
In Morrison v. National Australia Bank Ltd., the Supreme Court created a two-step test governing the extraterritorial reach of all federal statutes, radically altering the application of U.S. laws. Nowhere has this decision caused more upheaval than in the context of analyzing claims under the Racketeering Influenced and Corrupt Organizations Act (RICO). While courts widely agree that RICO does not apply extraterritorially, courts vehemently disagree about the proper standard to determine when a RICO case is appropriately domestic or impermissibly foreign. This Note explores RICO’s origins, its legislative history, and the evolution of its extraterritorial application in Morrison’s shadow. This Note then sifts through the conflicting approaches employed by courts faced with RICO cases involving foreign elements before ultimately advocating an alternative approach that accurately applies Morrison’s two-step test and faithfully embodies RICO’s legislative history and intent.