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Per Curiam Signals in the Supreme Court\u27s Shadow Docket
Get PDFLower courts and litigants depend a great deal on the Supreme Court to articulate and communicate signals regarding how to interpret existing doctrine. Signals are at their strongest and most reliable when they originate from the Court’s merits docket. More recently, the Court has been increasingly relying on its orders docket—colloquially referred to as its “shadow docket”—to communicate with lower courts by summarily reversing and correcting errors in interpretation without briefing or oral argument.
Over the past decade the Roberts Court has granted certiorari to summarily reverse a growing number of qualified immunity cases, issuing over a dozen unsigned per curiam opinions that, without further examination, appear to favor expansive protections for law enforcement officials. Despite this pro-law enforcement trend, lower courts have not necessarily assumed this as a blanket directive to expand the scope of qualified immunity. Rather, lower courts have interpreted the Court’s per curiam opinions in a myriad of ways, construing different signals and applying them in subsequent cases, revealing a critical stream of discourse that has the ability to influence future doctrinal development.
Understanding how the current Court is using the orders docket will require a lengthier period of conversation, but one thing is clear: the prolific use of the orders docket has demonstrated that it is one worthy of deeper study given how frequently lower courts turn to these opinions for guidance. This Article advances a six-part taxonomy of signals, based on a study of qualified immunity cases, to catalog common attributes of a given per curiam opinion that causes lower courts to interpret the opinion one way or another. This categorization not only provides a novel foundation for studying this secondary docket, but also a critical lens for analyzing the percolation of signals across various doctrinal contexts
View from the Shores - Columbia River Issues
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Update on Columbia River Treaty Negotiations (timestamp - 1:04:32
Anti-Corruption Justice Centre: A Comparison of its Operation in the Republic and the Emirate of Afghanistan
Get PDFTransparency International\u27s annual reports in recent years have put Afghanistan near the top of the list of corrupt countries. This paper explores how the Anti-Corruption Justice Centre (“ACJC”) – established in 2016 to prevent the loss of national assets, speed up the discovery, investigation, and judicial review of corruption cases, and observe international obligations – set about tackling the country’s endemic corruption. This paper then examines what happened to the ACJC after the fall of the Republic in August 2021 and the declaration of the Taliban Emirate. Lastly, this paper details the approach the Taliban Emirate has taken to the problem of corruption.
This paper draws on the unique insights of the author (a judge at the ACJC’s special corruption court until the fall of the Republic), with special attention to the ways in which key cases were brought to the court and adjudicated, under the Afghan Republic. For the period of the Taliban Emirate, the paper draws on interviews with prosecutors and other original research.
The findings indicate that, although the ACJC had weaknesses, it was relatively effective at adjudicating the cases brought before it and, had it had more time and continued to enjoy the moral and material support of the Afghan government, could have played a key role in an intensifying fight against corruption. By contrast, though many Afghans remembered the first Taliban regime as comparatively corruption-free, and though Taliban insurgents used public indignation at Republic officials’ blatant corruption as a recruiting draw, the current Taliban regime has closed down relevant institutions including ACJC, and turned a blind eye to the problem of corruption. The status of the laws addressing the subject is currently ambiguous and opaque. The future of the ACJC cases and the effort to combat corruption in Afghanistan is indeterminate
Putting the Public Back in the Public Trust Doctrine: A Reinterpretation to Advance Native Hawaiian Water Rights
Get PDFThe public trust doctrine guarantees that the government will hold natural resources in trust and protect them for the common good. The doctrine has played a key role in the allocation of water rights, particularly for Native American and Native Hawaiian interests in the United States. State and federal courts often consider the doctrine when deciding if certain use rights should be granted. In Hawai‘i, the doctrine has taken on a particularly robust form because the State Constitution expressly provides that all public natural resources are to be held in trust for the benefit of all Hawaiians. Unfortunately, the doctrine’s application has not always benefited Native Hawaiian interests.
This Comment analyzes the current status of the public trust doctrine in Hawai‘i and its unique relation to Native Hawaiian rights. Because the State has historically prioritized large sugar plantations on the islands over its Native population, modern applications of the doctrine to protect the islands’ natural resources are a relatively new concept in Hawaiian law. By evaluating statutes and cases from the Kingdom of Hawai‘i (1795–1893); the Territory of Hawai‘i (1900–1959); and the current State of Hawai‘i (1959–present), this Comment builds a more complete picture of Hawaiian jurisprudence around natural resource allocation and explores ways to reinterpret the public trust doctrine. One of the purposes of the doctrine has been to protect Native Hawaiian water rights and to uphold the exercise of Native Hawaiian traditions and customs, yet the State has yet to live up to that purpose. The State Legislature should enact laws that require consultation with Native cultural organizations when a state agency issues any permit in land, water, or other natural resource or when any court reviews the allocation and use of any natural resource
Community Property and Conflict of Laws: A Cacophony of Cases
Get PDFJustice Cardozo is reported to have said that the average judge, when confronted by a problem in the conflict of laws, feels almost completely lost, and, like a drowning man, will grasp at a straw. Conflict of laws can be vexing, but the resolution of a controversy involving multiple states\u27 marital property systems can quickly become impenetrable. This is in part due to the fundamental conceptual differences between community property and common law marital property paradigms, the inconsistencies in the use of similar terms in the different systems, and the significant differences among the laws of the community property states themselves. Added to the multitude of variations in the marital property law rules to be applied, there are the myriad potential fact patterns as well as layers of other legal issues, competing for application of the determining choice of law. Courts continue to turn to traditional conflict-of-laws principles that were initially found in the Restatement (First) of Conflict of Laws (First Restatement), choosing the law of the situs for real property and the law of the domicile for characterization of marital personalty, but these rules are deceptively simple and ill-equipped to answer the more complex choice-of-law dilemmas in this area. Even with more modern approaches to conflicts of law analysis, courts struggle. The confusion affects more than just property rights between two spouses, but also creates uncertainty whenever a person does business with a married person in another state.
To set the stage, this Article begins with a description of three cases that deal with one state\u27s rule on spousal liability for guaranty agreements, as it applies in the interstate setting. The different courts end up with three dramatically different results, using very different analytic approaches. Next, so that the reader is familiar with the various marital property laws that are in conflict in the cases discussed, the Article briefly describes community property in the United States, the common features among the nine traditional community property states, examples of variations among those states\u27 laws, and the fundamental differences between community property and common law marital property regimes. It also summarizes the available choice of law principles that are invoked in U.S. courts when two or more regimes are involved in a particular controversy.
The Article then identifies common marital property issues that raise conflicts concerns. There are some issues that are relatively straightforward and are dealt with by courts with some consistency. But the farther away the issue strays from the basic question of ownership in property of married persons, the harder it is for courts to apply the available analytic tools to arrive at consistent results. The Article proposes that courts abandon recent attempts to parrot rule-based norms and instead approach the cases by directly considering the interests and policies present in the particular case, and the effect of the various solutions on those interests and policies, before choosing the solution. That case-by-case approach might be criticized as leading to unpredictability, but it is hard to imagine a less predictable body of case law than what we have presently.
The descriptions and variations of the U.S. marital property regimes, the catalog of potential conflicts issues that can arise with respect to marital property, and the description of cases resolving choice-of-law issues with respect to marital property contained in this Article are not comprehensive but are only representative and intended to illustrate the confusion and inadequacy of traditional choice-of-law jurisprudence to resolve these issues fairly