Rethinking Retroactivity in Light of the Supreme Court’s Jury Unanimity Requirement

MICHAEL C. DORF

In light of the U.S. Supreme Court’s decision Monday in Ramos v. Louisiana, in which it held that the federal Constitution forbids states from convicting defendants except by a unanimous jury, Cornell law professor Michael C. Dorf discusses the Court’s jurisprudence on retroactivity. Dorf highlights some costs and benefits of retroactivity and argues that the Court’s refusal to issue advisory opinions limits its ability to resolve retroactivity questions in a way that responds to all the relevant considerations.

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City of Almaty v. Khrapunov

Docket: 18-56451

Opinion Date: April 22, 2020

Judge: Marbley

Areas of Law: Criminal Law, International Law, White Collar Crime

The City of Almaty, in Kazakhstan, filed suit against defendant and his family under the Racketeer Influenced and Corrupt Organizations Act (RICO), alleging that they engaged in a scheme to defraud the city of millions of dollars. The City claimed that it was forced to spend money and resources in the United States to trace where its money was laundered. The district court dismissed the City's claim on the basis that it failed to state a domestic injury pursuant to the Supreme Court's recent decision in RJR Nabisco, Inc. v. European Community, 136 S. Ct. 2090 (2016). The Ninth Circuit held that the City failed to state any cognizable injury other than the foreign theft of its funds, and its voluntary expenditures were not proximately caused by defendants' acts of money laundering. In this case, the City's expenditure of funds to trace its allegedly stolen funds is a consequential damage of the initial theft suffered in Kazakhstan and is not causally connected to the predicate act of money laundering.

Natural Resources Defense Council v. EPA

Docket: 19-71324

Opinion Date: April 22, 2020

Judge: Ronald Murray Gould

Areas of Law: Environmental Law

The Ninth Circuit granted a petition for writ of mandamus and ordered the EPA to respond to the NRDC's petition requesting that the EPA end the use of a dangerous pesticide, tetrachlorvinphos (TCVP), in household pet products. The panel held that the EPA has unreasonably and egregiously delayed the performance of its statutory duties on this critical matter of public health and that the circumstances warrant the extraordinary remedy of issuing a writ of mandamus. The panel considered the factors established in Telecomms. Research and Action Ctr. (TRAC) v. FCC, 750 F.2d 70, 79–80 (D.C. Cir. 1984), and held that the factors supported mandamus relief where, for more than a decade, the EPA has frustrated NRDC's ability to seek judicial review by withholding final agency action, all the while endangering the well-being of millions of children and ignoring its "core mission" of "protecting human health and the environment." The panel noted that, if the EPA begins cancellation proceedings, then the panel expects cancellation proceedings to conclude within one year of the date of this decision, and any extension beyond that must be supported by a showing of good cause. If the agency denies NRDC's petition on the merits, then NRDC may appeal that final agency action under the standards of the Administrative Procedure Act and any other applicable law.