Opinio Juris

In 1986, while the U.S.-Canada Convention was in force, Congress amended the AMT imposed on noncorporate taxpayers by section 55 and added section 59 to the Code.... [Thereafter] the U.S.-Canada Convention was amended.... The revised Protocol Amending the Convention... made changes to Article XXIV affecting credits for Social Security tax, corporate tax exemptions, and the tax treatment of dividends, interest, and royalties,... but did not alter the general rule found in article XXIV, paragraph 1. Neither the Third nor the Fourth Protocol references section 59 [the earlier conflicting statutory provision].

It is well established that, where a statute and a treaty pertain to the same subject matter, they must be read so as to give effect to both if at all possible.... If, however, the statute and the treaty conflict, the last-in-time rule requires that “the last expression of the sovereign will ... [controls].”...

Applying the last-in-time rule, we hold that section 59(a)(2) is the last expression of the sovereign will and that it takes precedence over the U.S.-Canada Convention to the extent there is a conflict between them. [The statute] makes it very clear that Congress intended the limitation of section 59(a)(2) to supersede existing treaty provisions prohibiting double taxation. The U.S.-Canada Convention was one of those treaties. Neither the Third nor the Fourth Protocol contains any provision clearly indicating that Congress's intention to ensure that taxpayers with sufficient means should contribute a minimum amount of tax to the United States had been superseded.

158. It is well settled that Appellate Body reports are not binding, except with respect to resolving the particular dispute between the parties. This, however, does not mean that subsequent panels are free to disregard the legal interpretations and the ratio decidendi contained in previous Appellate Body reports that have been adopted by the DSB….

160. Dispute settlement practice demonstrates that WTO Members attach significance to reasoning provided in previous panel and Appellate Body reports. Adopted panel and Appellate Body reports are often cited by parties in support of legal arguments in dispute settlement proceedings, and are relied upon by panels and the Appellate Body in subsequent disputes. In addition, when enacting or modifying laws and national regulations pertaining to international trade matters, WTO Members take into account the legal interpretation of the covered agreements developed in adopted panel and Appellate Body reports. Thus, the legal interpretation embodied in adopted panel and Appellate Body reports becomes part and parcel of the acquis of the WTO dispute settlement system. Ensuring "security and predictability" in the dispute settlement system … implies that, absent cogent reasons, an adjudicatory body will resolve the same legal question in the same way in a subsequent case.

161. In the hierarchical structure contemplated in the DSU, panels and the Appellate Body have distinct roles to play…. The Panel's failure to follow previously adopted Appellate Body reports addressing the same issues undermines the development of a coherent and predictable body of jurisprudence clarifying Members' rights and obligations under the covered agreements as contemplated under the DSU….

162. We are deeply concerned about the Panel's decision to depart from well-established Appellate Body jurisprudence clarifying the interpretation of the same legal issues. The Panel's approach has serious implications for the proper functioning of the WTO dispute settlement system ….

You really, really should follow prior Appellate Body decisions. It would be quite bad for the system if you do not. But if you've got what you think are compelling reasons for not doing so, we understand if you feel you have to go your own way. Bearing in mind, of course, that if you do, we will almost certainly reverse you on appeal. You may think your reasons are pretty good, but if they were really that persuasive we would have gone that way ourselves, hence they are not, in fact, "cogent".

The projections make it clear that U.S. corporate law firms of the future will be wealthier, larger, and more international than they were in the past…. Six firms … will gross more than $10 billion: Kirkland & Ellis; Mayer Brown; Baker & McKenzie; Jones Day; Skadden; and Latham. By 2025 Latham, at $23 billion, will have dramatically outpaced Skadden, its nearest competitor at $15.9 billion.

The PPP [profits-per-partner] projections for 2025 have Wachtell partners bringing home almost $15.7 million (before adjusting for inflation). Cravath, Swaine & Moore's PPP will be $9.6 million; Skadden's $6 million; and Baker & McKenzie's $2.5 million. The highest 2025 projected profits per partner are at Cadwalader, Wickersham & Taft, where the model suggests partners will net nearly $20 million apiece in 2025….

White & Case is projected to be the biggest of the 47 firms in the analysis, with 13,824 lawyers; Baker & McKenzie will follow closely behind with 13,512. More than three-quarters of the lawyers at both firms will be based outside the United States. Jones Day will have 11,623 lawyers and Latham 11,066, of whom almost 40 percent will be international….

And as the roster of firms atop the PPP and RPL projections indicates, the gap between firms will grow ever larger. The rich will continue to get richer and the poor relatively poorer…. Big firms will become bigger relative to smaller firms; and firms with a strong international presence will stand in greater contrast to those firms that have a minimal or no international presence.

These projections present numerous challenges and opportunities for firms in The Am Law 200. For firms to maintain the growth rates they established in the last 20 years-the rates that resulted in these optimistic predictions-they will have to grapple with a number of critical questions:

Will the market for high-end corporate legal services continue to expand? The projections assume that demand will continue to grow at historic rates. For that to happen, however, law firms will have to penetrate or create new markets, whether in other countries or new practice areas. …

How will the firms of the future manage the complexities of their ever-increasing size and geographical scope? The firm of the past had a few hundred lawyers. Several firms today have more than 1,000-but in 20 years, a 1,000-lawyer firm will be midsize. And firms will be much more geographically dispersed. Managing complexity will require that firm leaders continually develop and market their firm's expertise, while at the same time nurturing talent.

What will be the organizational identity of firms with an increasing percentage of lawyers outside the U.S.? A number of firms will cross the threshold and become global operations, no longer just U.S. firms with an international presence. Will such firms suffer identity crises? Will they be able to create a global identity that unites their partners worldwide?

Will firms that have avoided international expansion be able to continue to grow? Projections suggest that in 2025 Wachtell will still be wholly domestic and Cravath will have only about 6 percent of its lawyers outside the U.S. If the market forces them to move to a more global model, they may suffer significant financial and cultural costs, especially if they have to move quickly. Domestic firms with less marketable reputations may be hurt even more if they have to play global catch-up….

The plaintiffs in this case allege they were injured as a result of an accident that occurred on an up escalator as they exited an area the parties describe as a “bus depot,” located one level below Main Concourse E at the airport, when Mrs. Ferguson, Mrs. Deleveaux's eighty-eight-year-old mother, apparently fell backward onto both Ms. Bowe and Mrs. Deleveaux, resulting in all three suffering personal injuries. The complaint alleges the defendants were negligent by failing to fulfill a request for wheelchair assistance made for Mrs. Ferguson, which caused the plaintiffs to fend for themselves and hence, the escalator accident.

The record reflects the accident in this case occurred on July 29, 2001. Ms. Bowe, Mrs. Deleveaux, and Mrs. Ferguson had just arrived in Miami on an American Eagle commuter aircraft from Nassau. The aircraft arrived at a freestanding building, separate from the main concourse. In accordance with practice for aircraft arriving at that location, Ms. Bowe, Mrs. Deleveaux, and Mrs. Ferguson departed the aircraft and boarded an American Airlines bus for the short trip to the main terminal. The bus brought them to the bus depot. Although it appears from the record the bus depot is served by two escalators and an elevator, at best the record is murky concerning ingress, egress, and the extent to which the general passenger populace on the concourses is free to enter the depot area….

The preemptive effect of the Convention on local law extends no further than the Convention's own substantive scope. In this regard, it is clear from the text of the Convention it applies only to a “carrier.” Warsaw Convention, art. 17. In addition, the Convention applies only to injuries occurring either on board an aircraft or “in the course of any operations of embarking or disembarking.” Warsaw Convention, art. 17. These requirements constitute the initial inquiries we must make to determine whether the Convention is applicable to the claims being made and those we must consider here….

The Warsaw Convention also does not define or elucidate upon the phrase “operations of embarking or disembarking.” See Warsaw Convention, art. 17. However, it is clear the term does not automatically exclude events transpiring, as is the case here, within an airline terminal building. Rather than impose location-based or other rigid criteria to delimit these periods of liability under the Warsaw Convention, courts employ a three-prong test or guide to determine whether a passenger is entitled to seek the benefits of the Convention by considering: (1) the passenger's activity at the time of the accident; (2) the passenger's whereabouts at the time of the accident; and (3) the amount of control being exercised by the carrier at the time of the injury. In addition, when considering these factors, these same courts have made clear that no single factor is dispositive. Instead, “the three factors form a ‘single, unitary [analytical] base.'"

Rule 51.3 of the Olympic Charter provides that “no kind of demonstration or political, religious or racial propaganda is permitted in any Olympic sites, venues or areas," a principle that has been in the Olympic Charter for more than 50 years in order to preserve the universality of the Games. "The application of this regulation is common sense," explained Rogge, adding that without this rule, Olympic competitions and ceremonies could be used as a stage for all different kinds of political statements about armed conflicts, regional differences of all kind, religious disputes and many others.

"If athletes genuinely want to express their opinion, that's fine," Rogge continued. "But let's not forget, there is also the right not to express an opinion. Athletes should feel no moral obligation to speak out. They deserve the right to focus on their preparations and should not be made to feel obliged to express themselves if they do not wish to. The IOC and the National Olympic Committees have the duty to protect them from any kind of pressure. In any case, I do not expect there will be many incidents (of breach of rule 51). Athletes are mature and intelligent people. They will know what they can say or not say. If they have doubts, the IOC and the NOCs are here to guide them."

Instead of fighting the text, it makes more sense to see [the relevant provisions of the FAA] as substantiating a national policy favoring arbitration with just the limited review needed to maintain arbitration's essential virtue of resolving disputes straightaway. Any other reading opens the door to the full-bore legal and evidentiary appeals that can “rende[r] informal arbitration merely a prelude to a more cumbersome and time-consuming judicial review process,” and bring arbitration theory to grief in post-arbitration process....

When all these arguments based on prior legal authority are done with, Hall Street and Mattel remain at odds over what happens next. Hall Street and its amici say parties will flee from arbitration if expanded review is not open to them. One of Mattel's amici foresees flight from the courts if it is. We do not know who, if anyone, is right, and so cannot say whether the exclusivity reading of the statute is more of a threat to the popularity of arbitrators or to that of courts. But whatever the consequences of our holding, the statutory text gives us no business to expand the statutory grounds.

Plaintiffs are three Cuban nationals who are now residents of Florida. The complaint alleges they suffered an arduous ordeal, as follows: The Defendant and the Cuban government trafficked the Plaintiffs from Cuba to Curaçao under threat of physical and psychological harm including the threat of imprisonment. Upon arrival in Curaçao, the Plaintiffs' passports were taken and they were held on the grounds of the Defendant, along with scores of their compatriots. The workers were only allowed to leave those grounds under the guard of Cuban government agents. They were forced to work in slave-like conditions for 112 hours per week performing drydock services on ships and oil platforms. The pay for their work, the complaint alleges, was paid to the Cuban government. (In discovery, Defendant admitted that it credited Cuba on a debt it was owed by Cuba in exchange for the labors of the Cuban workers). The complaint alleges a situation in which the government of Curaçao was likely complicit due to the circumstances in which the Plaintiffs were transported to Curaçao and held there. Further, the Plaintiffs were denied all protections of the laws of Curaçao for injuries they suffered there, and, when any of the workers were injured or complained, they were promptly deported to Cuba and treated as enemies of the state. If they escaped and were caught, they were likewise deported to Cuba and punished. Plaintiffs, however, successfully escaped the Defendant's drydock facility, and were hunted by Defendant and agents of the Defendant within Curaçao and by the agents of the Cuban government all the way to Colombia, where they were granted political asylum. The United States then granted Plaintiffs parole to enter the United States.

Plaintiffs' principal claims are that the Defendant and its government agents and co-conspirators violated the laws of nations by trafficking them from Cuba to Curaçao and by holding them and forcing them to work there. The main thrust of their action travels under the Alien Tort Statute…. In this case, Defendant has not met its burden to provide evidence that convinces the court that material injustice would result should this court exercise its jurisdiction in this matter. To the contrary, this Court determines that justice will best be served by its hearing this action in the Southern District of Florida….

Here … the only proposed alternative forum is one in which the Plaintiffs allege they only ever went to forcibly, and one in which they allege they never lived as free men. Courts have recognized that a forum where a plaintiff suffered trauma is inadequate. Here there is more than trauma. If the current facts did not make Curaçao inadequate, it certainly would be an undue prejudice or inconvenience to make these Plaintiffs go to the country they allege they were trafficked to, held in captivity, and face ongoing danger. A forum non conveniens dismissal in these circumstances would not pass the “ultimate inquiry” of serving not just the convenience of the parties, but also the “ends of justice”, and so is not warranted.

The private interest factors to be considered are the relative ease of access of proof, ability to obtain witnesses, and all other practical problems that make trial of a case easy, expeditious and inexpensive. In this matter, Defendant is in Curaçao. However, Plaintiffs are all in Florida. The alleged injuries to Plaintiffs for forced labor occurred in Curaçao. On the other hand, the trafficking took place internationally and in Cuba, as well as in Curaçao….

Local interest in the controversy requires more examination. As stated before, the government of Curaçao has a general interest in regulating its corporations and enforcing its labor laws. This interest augurs towards it as a forum. However, Curaçao's more particularized interest in this case, stemming from any allegations that it was complicit in, acquiesced in, or failed to stop the alleged abuses of such a serious and explosive nature, is not seen by this Court as a local interest factor that militates towards Curaçao.

Further, any interest that a forum in Curaçao may have is countered by the public interest factors this jurisdiction has in the matter. This case concerns alleged violations of international human rights norms of concern to all nations and that the Alien Tort Statute empowered this Court to address. It concerns an alleged act of international trafficking. It concerns the human rights of people who have been Cuban citizens, an issue of concern to many members of this community. It concerns the foreign policy interests of the United States as expressed in the Cuban Democracy Act of 1992, and the interests of Congress expressed in the RICO statute. All these public interest factors militate in favor of this Court's retention of this matter.

If current trends continue, the population of the United States will rise to 438 million in 2050, from 296 million in 2005, and 82% of the increase will be due to immigrants arriving from 2005 to 2050 and their U.S.-born descendants, according to new projections developed by the Pew Research Center.

Of the 117 million people added to the population during this period due to the effect of new immigration, 67 million will be the immigrants themselves and 50 million will be their U.S.-born children or grandchildren.

Among the other key population projections:

Nearly one in five Americans (19%) will be an immigrant in 2050, compared with one in eight (12%) in 2005. By 2025, the immigrant, or foreign-born, share of the population will surpass the peak during the last great wave of immigration a century ago.

The major role of immigration in national growth builds on the pattern of recent decades, during which immigrants and their U.S.-born children and grandchildren accounted for most population increase. Immigration’s importance increased as the average number of births to U.S.-born women dropped sharply before leveling off.

The Latino population, already the nation’s largest minority group, will triple in size and will account for most of the nation’s population growth from 2005 through 2050. Hispanics will make up 29% of the U.S. population in 2050, compared with 14% in 2005.

Births in the United States will play a growing role in Hispanic and Asian population growth; as a result, a smaller proportion of both groups will be foreign-born in 2050 than is the case now.

The non-Hispanic white population will increase more slowly than other racial and ethnic groups; whites will become a minority (47%) by 2050.

The nation’s elderly population will more than double in size from 2005 through 2050, as the baby boom generation enters the traditional retirement years. The number of working-age Americans and children will grow more slowly than the elderly population, and will shrink as a share of the total population.