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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Murray Kentucky Energy, Inc. v. Ceralvo Holdings, LLC

Court: US Court of Appeals for the Eighth Circuit

Docket: 19-6038

Opinion Date: April 23, 2020

Judge: Saladino

Areas of Law: Bankruptcy

The Bankruptcy Appellate Panel affirmed the bankruptcy court's order denying Murray's motion to enforce the order confirming debtors' third amended plan of reorganization and to enjoin parties from asserting claims barred by the third amended plan. Murray claimed that their purchase of debtors' assets "free and clear" under section 363, together with the release provision in the confirmed plan, precluded their liability for indemnification payments for litigation expenses accruing after the effective date of the plan. The bankruptcy court held that neither 11 U.S.C. 1141(d), Kentucky law, nor the language of the confirmed plan released Murray from its contractual or contingent indemnity obligations. The panel held that the bankruptcy court did not abuse its discretion in determining the confirmed plan requires Murray to comply with the contractual indemnity obligations. The court held that the bankruptcy court followed principles of contract assignment and interpretation in reaching its conclusions about which obligations Murray assumed and which were released, upholding the agreements and the confirmed plan as written, rather than as Murray wants to rewrite them.