A law is only as good, or as powerful, as its exceptions allow it to be. Unless carefully drawn, an exception intended to avoid unjust or impractical applications of a rule can consume the rule itself. In the case of the Age Discrimination in Employment Act and Title VII, which were amended to apply to U.S. citizens working abroad, the "foreign laws defense," as interpreted in Mahoney v. RFE/RL, threatens to defeat the application of the general rule prohibiting discrimination. This Note briefly traces the history of the extraterritorial application of U.S. law and the interests that were served by the judge-created presumption against extraterritoriality and the foreign compulsion defense. This Note then analyzes the Mahoney decision against that backdrop and questions whether the legal standard it establishes accommodates those competing concerns. Finding that it does not, this Note suggests that the institutional framework of the Equal Employment Opportunity Commission and the State Department could be used to evaluate claims for their merit and potential for controversy, and thus relieve the courts of the traditionally uncomfortable role of making foreign policy.
Mahoney v. RFE/RL: An Unexpected Direction for the Foreign Laws Defense,
30 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vjtl/vol30/iss2/4