Opinion of the Court
its economic impact is felt, normally the plaintiff’s residence”). As to intangible injuries, petitioners further rely on the principle of mobilia sequuntur personam, which they claim “generally locat[es] intangible property at the domicile of its owner.” Brief for Petitioners 44. Both principles, they argue, locate Smagin’s alleged injury at his residence.
Petitioners fall short, however, when explaining the relevance of these principles. They do not clearly explain why choice-of-law principles are germane here, let alone why the First Restatement dictates those principles.[1] Meanwhile, it is far from clear that petitioners’ gloss on the principle of mobilia sequuntur personam was as well established or as wide sweeping as petitioners take it to be, in light of the many twists and turns in the doctrine across a range of contexts. See A. Simowitz, Siting Intangibles, 48 N. Y. U. J. Int’l L. & Pol. 259, 270–292 (2015). In short, at the time of RICO’s enactment, both principles were hardly “settled … at common law.” Beck v. Prupis, 529 U. S. 494, 500 (2000).
The core problem with petitioners’ approach is that it is unmoored from the presumption against extraterritoriality. While legal fictions regarding the situs of economic injuries and intangible property have their justifications in other areas of law, those justifications do not necessarily translate to the presumption against extraterritoriality, with its distinctive concerns for comity and discerning congressional meaning.
- ↑ Although the First Restatement was in effect in 1970, when RICO was enacted, numerous jurisdictions had by then moved away from the First Restatement’s methodology and toward a “ ‘most significant relationship’ ” test, which resembles “the kind of ‘multi-factor’ analysis the Court of Appeals conducted here.” Brief for George A. Bermann as Amicus Curiae 15. This shift was reflected in §145 of the Restatement (Second) of Conflict of Laws, which superseded the First Restatement the following year in 1971. Thus, even assuming choice-of-law principles are relevant, petitioners’ identification and application of those principles is questionable.
