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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Inter-tribal Council of Arizona v. United States

Court: US Court of Appeals for the Federal Circuit

Docket: 19-1758

Opinion Date: April 17, 2020

Judge: Wallach

Areas of Law: Government & Administrative Law, Native American Law

Under the Arizona-Florida Land Exchange Act (AFLEA), 102 Stat. 4571, 72 acres of the Phoenix Indian School Property were conveyed to Collier in exchange for Collier’s Florida lands plus $34.9 million. The Arizona InterTribal Trust Fund (AITF) was established for the benefit of ITCA-member Arizona tribes for “the cash amount required to be paid . . . by Collier upon closing.” In 1991, over ITCA's objections, the Secretary of the Interior agreed to allow Collier to make annual payments rather than full payment at closing. For several years, the Government released its liens on the Phoenix property. In 2013, Collier stated its intent to “no longer make payments” because the value of the remaining 15-acre Phoenix Property had decreased. Under a 2017 settlement agreement, Collier paid $16 million to the Government, which then sold the 15-acre Property for $18.5 million. ITCA sued, alleging that the Government breached its AFLEA fiduciary duties. The Claims Court dismissed in part. The Federal Circuit reversed in part. The Claims Court erred in dismissing the failure-to-maintain-sufficient-security portion of Claim I but properly dismissed the portion of that claim regarding the Government’s alleged failure to ensure adequate security when it negotiated the TFPA. The court properly dismissed Claim II, which alleged that the AFLEA “required the [Government] to collect from Collier all Trust Fund Payments required under the [AFLEA], and that the [Government’s] failure to collect all of the payments is a breach of trust.”