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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County of Maui v. Hawaii Wildlife Fund

Docket: 18-260

Opinion Date: April 23, 2020

Judge: Stephen G. Breyer

Areas of Law: Environmental Law, Government & Administrative Law

Maui’s wastewater reclamation facility collects sewage, partially treats it, and daily pumps around four million gallons of treated water into the ground through four wells. This effluent then travels about a half-mile, through groundwater, to the Pacific Ocean. Environmental groups brought a citizens’ suit under the Clean Water Act, 33 U.S.C. 1365, alleging that Maui was “discharg[ing]” a “pollutant” to “navigable waters” without the required permit. The Ninth Circuit affirmed summary judgment for the environmentalists. The Supreme Court vacated. The Act requires a permit when there is a direct discharge from a point source into navigable waters or when there is the functional equivalent of a direct discharge. The Court rejected both the Ninth Circuit’s broad “fairly traceable” interpretation and the total exclusion of all discharges through groundwater, as urged by Maui and reflected in the EPA’s recent Interpretive Statement, that “all releases of pollutants to groundwater” are excluded from the scope of the permitting program." That interpretation is inconsistent with the statute’s reference to “any addition” of a pollutant from a "point source" to navigable waters, given the statute’s inclusion of “wells” in the “point source” definition; wells ordinarily discharge pollutants through groundwater. The statute is intended to provide federal regulation of identifiable sources of pollutants entering navigable waters without undermining the states’ longstanding regulatory authority over land and groundwater. A permit is required when there is a discharge from a point source directly into navigable waters or when there is the functional equivalent of a direct discharge. Many factors may be relevant to determining whether a particular discharge is the functional equivalent of one directly into navigable waters. Time and distance will be the most important factors in most cases, but other relevant factors may include the nature of the material through which the pollutant travels and the extent to which the pollutant is diluted or chemically changed as it travels. Although this interpretation does not present a clear line, the EPA has applied the permitting provision to some discharges through groundwater for over 30 years, with no evidence of inadministrability or an unmanageable expansion in the statute’s scope.

Barton v. Barr

Docket: 18-725

Opinion Date: April 23, 2020

Judge: Brett M. Kavanaugh

Areas of Law: Immigration Law

Over 12 years, Barton a lawful permanent resident, was convicted of state crimes, including a firearms offense, drug offenses, and aggravated assault offenses. An Immigration Judge found him removable under 8 U.S.C. 1229a, based on his firearms and drug offenses. Barton applied for cancellation of removal, for which a lawful permanent resident must have “resided in the United States continuously for 7 years after having been admitted in any status.” The "stop-time rule" provides that a continuous period of residence “shall be deemed to end” when the lawful permanent resident commits “an offense referred to in section 1182(a)(2) . . . that renders the alien inadmissible." Because Barton’s aggravated assaults were committed within his first seven years of admission and were covered by section 1182(a)(2), the Immigration Judge concluded that Barton was not eligible for cancellation of removal. The BIA and the Eleventh Circuit agreed. The Supreme Court affirmed. For purposes of cancellation-of-removal eligibility, a section 1182(a)(2) offense committed during the initial seven years of residence does not need to be one of the offenses of removal. The cancellation-of-removal statute functions like a traditional recidivist sentencing statute, making a noncitizen’s prior crimes relevant to eligibility for cancellation of removal. Whether the offense that precludes cancellation of removal was charged or could have been charged as one of the offenses of removal is irrelevant. Barton’s aggravated assault offenses were crimes involving moral turpitude and therefore “referred to in section 1182(a)(2).” He committed the offenses during his initial seven years of residence and was later convicted of the offenses, thereby rendering him “inadmissible.” Barton was, therefore, ineligible for cancellation of removal.

Romag Fasteners, Inc. v. Fossil, Inc.

Docket: 18-1233

Opinion Date: April 23, 2020

Judge: Neil M. Gorsuch

Areas of Law: Intellectual Property, Trademark

Romag and Fossil signed an agreement to use Romag’s fasteners in Fossil’s leather goods. Romag eventually discovered that factories in China making Fossil products were using counterfeit Romag fasteners. Romag sued Fossil and certain Fossil retailers for trademark infringement, 15 U.S.C. 1125(a). Citing Second Circuit precedent, the district court rejected Romag’s request for an award of profits, because the jury, while finding that Fossil had acted callously, rejected Romag’s accusation that Fossil had acted willfully. The Supreme Court vacated. A plaintiff in a trademark infringement suit is not required to show that a defendant willfully infringed the plaintiff’s trademark as a precondition to a profits award. The Lanham Act provision governing remedies for trademark violations, section 1117(a), makes a showing of willfulness a precondition to a profits award in a suit under section 1125(c) for trademark dilution, but section 1125(a) has never required such a showing. The Act speaks often, expressly, and with considerable care about mental states, indicating that Congress did not intend to incorporate a willfulness requirement here obliquely.