Commentaries
2011
A decade ago, the United States Supreme Court held that a newly enacted law that attaches adverse immigration consequences to certain criminal convictions could not be retroactively applied in the case of an immigrant who was convicted of the offense pursuant to a guilty plea before enactment of the new law. Since then, the courts of appeals that have addressed the same issue in the context of an immigrant who was convicted at trial, rather than after a guilty plea, have done so with remarkable divergence. Some courts have held that, unlike immigrants who pled guilty, immigrants who went to trial cannot show that they detrimentally relied on the old law; accordingly, the new law may be applied retroactively. Other courts have rejected the detrimental reliance requirement. In this article, I argue that detrimental reliance, while properly viewed as a factor in retroactivity analysis, must not be viewed as a requirement for challenging the retroactive application of a new law to past acts.
THE SUPREME COURT TO CLASS ACTION ARBITRATION: DROP DEAD
Arnold Shep Cohen
In a series of decisions beginning in 1991, the United States Supreme Court has continually enforced individual binding arbitration agreements for employment disputes. Since 2010, the Court has issued two decisions that have gone in the opposite direction, when it restricted the use of class action arbitrations. The juxtaposition of these two lines of cases could not present a starker contrast, with the Court‟s strained, result-oriented reasoning becoming evident. The upshot is that corporations can force plaintiffs to submit to binding arbitration, avoiding a jury trial, without the corresponding fear that they can be saddled with a class action arbitration. As a result, an individual plaintiff will easily forfeit access to both a jury trial and a class action arbitration claim.
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