Kaplan Pleadings in BetOnSports

[oldbookguy]

These thoughts and concerns were mine as well to begin with.

After thought however this is a pre UIGEA case, the treaty was signed AFTER the wire act and by the standards congress approved the treaty AFTER the laws were passed, again pre UIGEA.

The points may in-fact be very good, afterall, I have always found that is if a judge suggests a certain action, that judge has a reason for directing you that way and it is rare for a judge to 'suggest' a defense.

obg

[Skallagrim]

Generally speaking, International Treaties are more important than congressional statutes (its in the Constitution). But its very rare for a statute to DIRECTLY contradict a treaty. Most of the law and cases you guys cited above has to do with interpreting statutes and treaties so they dont conflict, or about how (like in the case of foreign criminal defendants having a right to embassy access) how violation of that treaty right does not mean the other valid law must give way (so yes, we violated your treaty rights but we can still prosecute you).

Whats truly interesting about the WTO in this context is that the defendants can argue that 1) they were in full compliance with their own country's law and 2) an international treaty (allegedly) directly gave them the right to offer their services in the US. If they can prove #2 then I think the treaty will be held to be controlling and they cannot be prosecuted for offering their services pursuant to the treaty. The rub here is that the US Courts do not have to accept the WTO's conclusion that the treaty gave such a right to offer the services; WTO rulings control the WTO, but they would only be considered "advisory," not binding precedent, in a US criminal court.

Skallagrim

[oldbookguy]

Hey Skall, I am not the greatest researcher, so I need help.

I have a faint memory while watching a Fox show several months ago (perhaps a year) in-which the host was really made that the Supreme Court Ruled a law invalid or conviction or something in favor of an International Ruling to the contrary.

Any idea or help in researching this?

obg

[Skallagrim]

Dont recall such a case off the top of my head, OBG. But I think you might be talking about the famous case (Hamdi?) on military tribunals. The one where the Supreme Court said that part of the Bush detainee program and the statute passed authorizing it was in direct conflict with Article 3 of the Geneva Convention and thus was illegal. - There were a lot of FoxNews guys riled up over that one.

It is the general principle that a treaty tops a law when the 2 are in direct conflict. It is also true that the courts will usually bend over backwards and do a one hand flip before finding that a treaty and a law are in DIRECT conflict.

Skallagrim

[Legislurker]

Im thinking you are meaning a minority dissent in a Death Penalty case about executing the retarded? I think Souter or Breyer referenced some UN Charter or something that we may have been signatory to. I doubt it as every US administration has been loathe to sign onto anything of that nature. They were using the interpretation of cruel and unusual by referenceing the UN document that condemned it as inhumane.

Edit: Juveniles and God Bless Google.
http://papers.ssrn.com/sol3/papers.c...ract_id=700176

Try Breyer in Wiki as well. Thats what pissed off the Hitler Youth at Fox.

[fnurt]

I have a feeling he's referring to the Supreme Court's 2005 decision in Roper v. Simmons, which struck down the death penalty for juveniles. Justice Scalia's dissent criticized the majority opinion for relying in part on international norms and the fact that no other advanced country executes juveniles, and that criticism was picked up in a number of conservative circles, so it might be the thing he remembered them talking about on Fox.

If I'm right about this, it seems like a real stretch in terms of trying to apply it to online poker. I mean, you could talk about how many countries have legalized gambling, the fact that other countries haven't attempted to regulate the Internet, and so forth, but it's hard to imagine the Supreme Court ruling on that basis that there's some kind of constitutional right to gamble. The death penalty is sort of a unique issue.

[JPFisher55]

I think that the point that Kaplan's attorneys are making is that the WTO decision is not in direct conflict with the Wire Act if the Wire Act is interpreted not to include online gambling from foreign jurisdictions. The conflict is between the DOJ's interpretation and the WTO. So Kaplan's attorneys argue that the cited line of cases favor their interpretation over the DOJ's to prevent any conflict between the federal statute and the WTO, GATS treaties.
The UIGEA prohibits accepting bets and transfers of money related to unlawful internet gambling. But if the interpretation argued by Kaplan's attorneys is correct then online gambling serviced by foreign firms do not violate the Wire Act.
Obviously the courts in the Jay Cohen case accepted the DOJ's interpretation but that was before the WTO case.

[BluffTHIS!]

[ QUOTE ]
Whats truly interesting about the WTO in this context is that the defendants can argue that 1) they were in full compliance with their own country's law and 2) an international treaty (allegedly) directly gave them the right to offer their services in the US. If they can prove #2 then I think the treaty will be held to be controlling and they cannot be prosecuted for offering their services pursuant to the treaty. The rub here is that the US Courts do not have to accept the WTO's conclusion that the treaty gave such a right to offer the services; WTO rulings control the WTO, but they would only be considered "advisory," not binding precedent, in a US criminal court.


[/ QUOTE ]


As I said earlier, I can't see SCOTUS or Congress allowing the rulings of a foreign or international court/body to be implicitly subsumed into domestic law, in line with what you said. However the paradox is that it would be a farce for a US court to maintain that it is the proper interpreter of the intricacies of such treaties, rather than the WTO appellate bodies.

But I would think an important point in this issue is that doubtless part of those treaties is in fact the signatories stipulating that the WTO appellate bodies are in fact the proper interpreters of the treaties. And as noted in previous discussions on the Antigua issue, for the US to maintain it had no committments of a certain nature, *after* having submitted/participated in the appeals process, rather than taking that stance from the outset, is a *total* farce.

[Emperor]

The issue about the unpaid taxes is also muddied by the fact that the IRS refuses to accept them. (Sorry can't find a citation, maybe ask Jay) These offshore casinos have offered to pay taxes due, but the IRS in conjuntion with the DOJ has refused to accept. (So they can prosecute later of course)

[Merkle]

Minor hijack

Are any attorneys using this forum familar with trademark/servicemark issues? If so please PM me.