"We're all textualists now," Justice Elena Kagan famously declared in 2015. However, as the U.S. Supreme Court's most recent term drives home, that superficial consensus masks a fundamental disagreement about how textualism actually applies when interpreting statutes.The same goes for the "presumption against extraterritoriality" — the principle that statutes ordinarily have domestic application only. All nine justices now agree that this presumption exists, and that statutes will rarely be found to have extraterritorial application.

But as the past term makes clear, the justices disagree fundamentally about which applications of a statute count as extraterritorial and which count as domestic. Indeed, within the span of a week this past June, the court issued two decisions taking opposite approaches to that question — one addressing the Racketeer Influenced and Corrupt Organizations Act, and another addressing the Lanham Act. Taken together, these decisions raise more questions than they answer.

To continue reading Jonah Knobler's article in Law360, please click here.