Opinio Juris

Because the Court lacks a quorum, 28 U.S.C. § 1, and since a majority of the qualified Justices are of the opinion that the case cannot be heard and determined at the next Term of the Court, the judgment is affirmed under 28 U. S. C. § 2109, which provides that under these circumstances the Court shall enter its order affirming the judgment of the court from which the case was brought for review with the same effect as upon affirmance by an equally divided Court. The Chief Justice, Justice Kennedy, Justice Breyer, and Justice Alito took no part in the consideration or decision of this petition.

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.'"

One has a nagging suspicion that human rights litigation against corporations is a proxy fight in which the accomplice is pursued while the principal evades punishment. Indeed, if a corporation is accused of "aiding and abetting" human rights abuses, this is all but a concession that the corporate actor is not the principal wrongdoer. It is of course possible that this controversial trend toward corporate responsibility may reflect a genuine concern about corporate abuse of power. But more likely it reflects an abiding frustration that the primary perpetrators-sovereigns-are beyond the reach of most victims. If victims cannot pursue claims against the principal, they will resign themselves to pursue claims against those who aid and abet.

How have we come to this state of affairs, in which the corporation is pursued while the sovereign evades punishment? Why should the corporate accomplice alone be found liable if the sovereign is the primary malfeasor? For the first time in scholarly literature, this Article suggests an alternative approach, a solution to this conundrum. It suggests that corporations have existing tools to remedy the situation, drawing on principles derived from human rights, contract law, and arbitration. The essential idea is that if a corporation is found liable for aiding and abetting human rights abuse, it may invoke contractual provisions in the agreement with the sovereign to arbitrate the question of shared responsibility. While the victims may not pursue the sovereign, there is no impediment for a corporation that is found liable to pursue the sovereign in arbitration to secure its share of liability, either in the form of contribution or indemnification. In short, human rights litigation against the corporation could lead to "who pays" arbitration against the sovereign….

The purpose of this Article is not to affirm or disaffirm this trend of holding corporations liable under international law. Rather its purpose is to recognize an observable trend in human rights litigation patterns and consider its ramifications. If corporations increasingly are subject to international responsibility, then this portends new avenues for holding sovereigns responsible for their share of the liability….

Human rights litigation followed by "who pays" arbitration is a two-step process that overcomes the traditional immunity that sovereigns enjoy in human rights litigation. Thus far, human rights litigants have attempted to scale an impregnable wall of sovereign immunity by relying on awkward FSIA tools such as commercial activity or implied waivers. But corporations have no such difficulties. They can invoke provisions in their contracts that were specifically drafted to fulfill the relatively straightforward FSIA exceptions of express waiver and arbitration. Corporations typically cannot implead and crossclaim against the sovereign in the underlying litigation. But they can do the next best thing by arbitrating the question of who pays for the human rights abuses. Effectively, the arbitration procedure operates as a second-tier cross-claim by one malfeasor against the other.

What is particularly important about this paradigm shift is that heretofore human rights abuse has been a relatively cost-free enterprise for perpetrators, particularly sovereigns…. But with corporate liability that equation changes dramatically. To use Guido Calabresi's scheme of cost avoidance, monetary incentives are placed on corporations to change their conduct so as to reduce the number and severity of human rights violations…. And by imposing a cost on corporations that aid and abet sovereign abuse, those corporations will become cost avoiders…. Holding corporations liable and then arbitrating who pays is a mechanism of imposing costs and then spreading the costs, resulting in the corporation and the sovereign becoming cost avoiders. By imposing and spreading costs to the secondary and primary perpetrators, greater fairness between the malfeasors is achieved and deterrence from human rights abuse is enhanced. Contractual arbitration between the corporation and the sovereign over who pays transfers costs imposed on the corporation and creates shared incentives to implement and enforce human rights obligations.

73. The corporate responsibility to respect human rights includes avoiding complicity. The concept has legal and non-legal pedigrees, and the implications of both are important for companies. Complicity refers to indirect involvement by companies in human rights abuses - where the actual harm is committed by another party, including governments and non-State actors. Due diligence can help a company avoid complicity.

74. The legal meaning of complicity has been spelled out most clearly in the area of aiding and abetting international crimes, i.e. knowingly providing practical assistance or encouragement that has a substantial effect on the commission of a crime, as discussed in the 2007 report of the Special Representative. The number of domestic jurisdictions in which charges for international crimes can be brought against corporations is increasing, and companies may also incur non-criminal liability for complicity in human rights abuses.

75. In non-legal contexts, corporate complicity has become an important benchmark for social actors, including public and private investors, the Global Compact, campaigning organizations, and companies themselves. Claims of complicity can impose reputational costs and even lead to divestment, without legal liability being established. In this context, allegations of complicity have included indirect violations of the broad spectrum of human rights - political, civil, economic, social, and cultural.

76. Owing to the relatively limited case history, especially in relation to companies rather than individuals, and given the substantial variations in definitions of complicity within and between the legal and non-legal spheres, it is not possible to specify definitive tests for what constitutes complicity in any given context. But companies should bear in mind the considerations set out below.

77. Mere presence in a country, paying taxes, or silence in the face of abuses is unlikely to amount to the practical assistance required for legal liability. However, acts of omission in narrow contexts have led to legal liability of individuals when the omission legitimized or encouraged the abuse. Moreover, under international criminal law standards, practical assistance or encouragement need neither cause the actual abuse, nor be related temporally or physically to the abuse.

78. Similarly, deriving a benefit from a human rights abuse is not likely on its own to bring legal liability. Nevertheless, benefiting from abuses may carry negative implications for companies in the public perception.

79. Legal interpretations of “having knowledge” vary. When applied to companies, it might require that there be actual knowledge, or that the company “should have known”, that its actions or omissions would contribute to a human rights abuse. Knowledge may be inferred from both direct and circumstantial facts. The “should have known” standard is what a company could reasonably be expected to know under the circumstances.

80. In international criminal law, complicity does not require knowledge of the specific abuse or a desire for it to have occurred, as long as there was knowledge of the contribution. Therefore, it may not matter that the company was merely carrying out normal business activities if those activities contributed to the abuse and the company was aware or should have been aware of its contribution. The fact that a company was following orders, fulfilling contractual obligations, or even complying with national law will not, alone, guarantee it legal protection.

81. In short, the relationship between complicity and due diligence is clear and compelling: companies can avoid complicity by employing the due diligence processes described above - which, as noted, apply not only to their own activities but also to the relationships connected with them.

This continued litigation under the ATS reflects fundamental problems with how lower courts have approached these suits. These problems center on five key issues: First, whether the ATS applies extraterritorially – that is, whether a U.S. court can properly apply U.S. federal common law under the ATS to conduct that occurred entirely in the territory of a foreign State. Second, even if such a cause of action could properly be recognized, whether exhaustion of adequate and available local remedies in that foreign country should be a prerequisite to bringing an ATS suit. Third, whether corporations or other private entities may be held liable under the ATS for aiding and abetting human rights abuses perpetrated by foreign governments. A fourth issue is how to apply Sosa’s requirement that an international-law norm be sufficiently accepted and specific. And fifth, in what circumstances should courts dismiss suits based on what Sosa referred to as “case-specific deference to the political branches”?

We are perceived, accurately, as having in effect established an International Civil Court – a court with jurisdiction to decide cases brought by foreigners arising anywhere in the world, by the light only of its own divination of universal law, and through the extraterritorial application of U.S. law concerning rights and remedies. By itself, this can be grating enough to foreign governments. But it is especially so when taken together with both the fact that the U.S. often argues vigorously against the assertion by foreign courts of universal jurisdiction to hear cases involving U.S. officials, and the fact that the U.S. has declined to join the International Criminal Court because of concerns about that tribunal’s jurisdiction.

The Executive Branch has real interests in ensuring that as a matter of policy, ATS litigation does not interfere with its conduct of foreign relations. I have already noted foreign governments’ concerns about the scope of U.S. court jurisdiction under the ATS. In addition, recent ATS suits have been used by litigants to duplicate, replace, or proceed on top of the U.S. government’s systemic efforts to reform foreign government practices or help end foreign conflicts. Often, these suits are brought as class actions for all aliens injured by the challenged conduct, effectively asking the U.S. courts to serve as administrator of an international claims program for foreign nationals.

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."

The firearms death rate in the United States far surpasses that of other democratic nations. A 1997 study analyzing firearms deaths for children aged 14 or under in 26 industrialized countries found that 86 percent of all deaths occurred in the United States. The rate for firearms homicide alone was 16 times higher in the United States, while the firearms suicide rate was 11 times higher and the firearms unintentional death rate was nine times higher.

In 1995, the firearms death rate in the United States was 13.7 per 100,000. In comparison, the firearms death rates in countries that severely limit access to handguns were significantly lower. For example, in 1995, Canada had a firearms death rate of 3.9 per 100,000; Australia had a rate of 2.9 per 100,000; and England and Wales had rates of 0.4 per 100,000. One of the most glaring distinctions between these countries and the United States is the significantly lower incidents of lethal violence caused by handguns.

Criminological research has established that the high rate of handgun homicides in the United *7 States is due, at least in part, to the high rate of handgun ownership in the United States. The rate of handgun ownership and the rate of handgun homicides in the United States, when compared to the same data from other countries, illustrate the strong correlation between the availability of handguns and the incidence of handgun homicides.... [T]he United States experiences about four times the level of handgun homicides per 100,000 people than Israel, Sweden, Canada, Australia, and Great Britain combined.

The use of handguns in suicide in no way proves that an alternative method would not be used if handguns were unavailable. In fact, the evidence is to the contrary. Japan, Hungary, and Scandinavia all have far more restrictive gun control than the United States, and yet they have suicide rates 2 to 3 times higher than the U.S. For example, the suicide rate in Hungary is 35.38 per 100,000, compared to only 12.06 per 100,000 in the United States.

The AAP Brief relies on a country-by-country comparison in arguing that the firearm related death rate in the United States was much higher in 1995 in the United States than in Canada, Australia, and England and Wales, all of which have restrictive gun control. AAP Brief at 25. But the data for gun deaths in the United States include guns used in self-defense, as in fending off an assault, robbery or rape, and higher homicide rates in the United States existed long before there was gun control in other countries….

Different societies have different confounding factors, such as crime-inducing drug addiction, single-parent families, promotion of violence in the media, and varying approaches to juvenile delinquency and schooling, all of which inevitably affect crime rates. Those confounding factors are best eliminated by looking at the effect of gun control on the same society, and as shown below, gun control typically results in an increase in overall crime rather than a reduction. Gun control is hardly supported if murders by switchblades increase as death by firearms declines.

The evidence from foreign jurisdictions leads to the same conclusion as the United States data. In general, comparison of “homicide and suicide mortality data for thirty-six nations (including the United States) for the period 1990-1995” to gunstock levels shows “no significant (at the 5% level) association between gun ownership and the total homicide rate.” Additionally, in a 2001 European study of 21 nations' data, “no significant correlations [of gunstock levels] with total suicide or homicide rates were found.”…

A 2007 study compared gun ownership and murder in every European nation on which the data could be found. Again, nations with more guns did not exhibit higher murder rates. Indeed, the tendency is generally the opposite: murder rates for the seven nations having 16,000+ guns average out to 1.2 per 100,000 population while the murder rates for the nine nations having just 5,000 or fewer guns is well over three times higher, at 4.4 per 100,000. These national comparisons suggest that the determinants of murder are factors such as basic socio-economic and cultural factors, and not the mere availability of guns. Leading gun control advocates have admitted that “Israel and Switzerland [have] rates of homicide [that] are low despite rates of home firearm ownership that are at least as high as those noted in the U.S.” To the same effect, within Canada, “England, America and Switzerland, [the areas] with the highest rates of gun ownership are in fact those with the lowest rates of violence.”

Throughout history, the disarmament of populations has all too frequently resulted in genocide and mass oppression. History is replete with this familiar pattern. To limit the right to keep and bear arms to a state regulated militia is to disregard what the Framers understood - that individual possession of arms is essential to preventing usurpation by the state.

During the 20th Century, more than 70 million people were slaughtered on a massive scale by their own governments after first being disarmed. This pattern repeated itself in Ottoman Turkey (1915-17), the Soviet Union (1929-45), Nazi Germany and Occupied Europe (1933-1945), Nationalist China (1927-1949), Communist China (1949-52, 1957-60, and 1966-70), Guatemala (1960-81), Uganda (1971-79), Cambodia (1975-79) and Rwanda (1994)just to name a few.

In many cases, firearm confiscation followed only after the groundwork was laid by purportedly “reasonable” regulation and registration of firearms. History illustrates just how readily the standardless “reasonable” regulation of firearms invites large scale abuse by the state and ultimately paves the way for wholesale confiscation of arms and the mass slaughter of the disarmed (much like the massive censorship that likely would arise under a rule permitting “reasonable” regulation of speech and press).

While the Founding Fathers may not have anticipated genocide, they certainly did anticipate tyranny and added the Second Amendment to safeguard against it. James Madison observed “the advantage of being armed, which the Americans possess over the people of almost every other nation” and noted how this was an important check and balance on the power of government…. Supreme Court Justice Joseph Story considered the Second Amendment to be the most important individual right of all: The right of the citizens to keep and bear arms has justly been considered the palladium of the liberties of a republic; since it offers a strong moral check against usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.

These Nineteenth and Twentieth Century examples illustrate how well the Framers of the Constitution understood the essential role an armed citizenry plays in the defense of a free people. They had before them a rich history of European despotism from which to draw the keen understanding that armed people are free people and thus were unmistakably aware of the essential nexus between firearms ownership and liberty….

The great fortune of the American people is that our Constitution was crafted in such a manner as to minimize the likelihood of needing our arms to oppose a tyranny arising from within. Yet, the Second Amendment was created as the final barricade against the unthinkable - the day when the rest of our Constitutional safeguards have failed us and we stand exposed to the brutal reality that so many in history have understood only too late.

In the Petition for Writ of Certiorari, Petitioners represent that other nations have reached the same conclusion concerning handguns as they have. “[M]ost industrialized countries strictly control civilian access to handguns and allow the carrying of handguns for personal protection only under very restrictive conditions …” Petitioners repeat this assertion in their merits brief where they state: “Many cities, states, and nations regulate or ban handguns based on the unique dangers of those deadly weapons.” Contrary to this assertion, most foreign gun laws in democratic nations are not nearly as restrictive as those found in Washington D.C., where private individuals are burdened by an outright ban of all functional firearms in their homes.

Some of the earliest works on the subject of International Law were by fourteenth century Milanese scholar Giovanni da Legnano, whose work, De Bello, De Represealiis et de Duello was one of the first attempts to establish international rules for warfare. Legnano's treatise closely examined the individual right of self-defense as the basis of establishing a derivative right of a nation to engage in war. Legnano believed that, “self-defense proceeds from natural law, and not from positive law, civil or canon.” Self-defense was not an artificial construct of positive law, but instead was an inherent instinct. Legnano did not confine the natural right to merely protecting one's life. He explained that self-defense was proper not only in defense of life, but also in defense of one's property, and that deadly force to protect that property was justified if necessary. Further, the principle of self-defense allows a person to come to the aid of a relative or friend whose person or property is being attacked. Finally, Legnano noted that a victim is not required to use only the exact level of force that his assailant uses by posing the rhetorical affirmation: “suppose a strong and vigorous man strikes me with his fist, and I am a poor fellow who cannot stand up to him with the fist. May I defend myself with a sword?”

Following in the footsteps of Legnano was the sixteenth century Spanish scholar, Francisco de Victoria. Victoria wrote several works on the subject of the “just war” and his classroom at the University of Salamanca became known as “the cradle of international law.” Like Legnano, Victoria believed that the justification for war was necessarily predicated upon adopting the individual right of self-defense as its derivative source. Thus, Victoria's first proposition articulated the individual right of self-defense: Any one, even a private person, can accept and wage a defensive war. This is shown by the fact that force may be repelled by force. Hence, any one can make this kind of war, without authority from any one else, for the defense not only of his person, but also of his property and goods. The foundation established by Legnano and Victoria created the platform for the father of International Law, Dutch scholar, Hugo Grotius. His work, The Rights of War and Peace, is considered the cornerstone of modern International Law and Grotius is hailed as “the founder of modern civilized interstate relations.”

The essential elements of Grotius' works were founded upon the precepts of self-defense and self-preservation. Grotius wrote that even human babies, like animals, have an instinct to defend themselves. Further, this instinct extended to the protection of property rights and was one of the fundamental elements of the social fabric of modern society, because if people were barred from using force to protect their property from those who would take it by force, then “human Society and Commerce would necessarily be dissolved.”

Grotius based his rules for war between nations predicated on the underlying individual natural right of self-defense and observed that the rationale for both were based upon the same moral principle: “[I]t is allowed to Repel Force by Force.” It is upon the foundation of the fundamental individual right of self-defense that the structure of International Law is built.

Second only to Hugo Grotius was 17th century scholar Samuel Pufendorf, whose eight volume masterpiece, Of the Law of Nature and Nations, incorporated theories of Grotius, and the philosophies Thomas Hobbes and John Locke. Pufendorf; like Grotius, used natural law theory to construct the law of nations. The primary natural law employed by Pufendorf was that of self-defense: “Defence is a thing of more ancient date than any Civil Command…” and that no state can therefore forbid self-defense.

The natural right to self-defense which forms the very core of the principles of International Law, has one final component which protects the means by ‘which the right can be exercised. Thomas Hobbes explained “it is in vain for a man to have a right to the End, if the right to the necessary means be denied him, it follows, that since every Man hath a right to preserve himself, he must also be allowed a right to use all the means, and do all the actions, without which he cannot preserve himself.”