Blog Post of the Day — “The Frequent Irrelevancy of the Supreme Court”

Possibly the best blog post this year (so far) comes from Sr. federal trial judge Richard George Koft on his great blog Hercules and the Umpire. It is “The Frequent Irrelevancy of the Supreme Court.” Judge Kopf writes from the POV of a federal trial judge:

A lot of what the Supreme Court does is simply irrelevant to what federal trial judges do on a daily basis.  Take, for example, the Daubert case that was supposed to be a big deal when it came to expert testimony.   Boiled down, Daubert simply said that an expert had to have an adequate foundation for his or her opinion.   Well, . . . sure.   The “field” absorbed Daubert with little or no change in what was actually going on in most federal trial courts.  A similar shrug happened with the “big” pleading case of Bell Atlantic v. Twombly.  Very little, if anything, changed “in the field.”   Prior to Twombly, most of the time, the goofy cases got weeded out.  Same, same after Twombly.

I think the same of is often (maybe not “frequent[ly]” but some of the time) true in Indian law. My vote for most irrelevant Indian law decision of the last ten years is Plains Commerce Bank v. Long Family Land and Cattle Co. The law going in to that case, which involved tribal civil jurisdiction over nonmembers, was that the Montana “exceptions” applied to on-reservation lands owned by non-Indians, and that it was difficult to meet the exceptions. The law after that case? No change whatsoever, with some fairly minor tightening of the second Montana exception where the Chief Justice quoted the Cohen Handbook:

One commentator has noted that “th[e] elevated threshold for application of the second Montana exception suggests that tribal power must be necessary to avert catastrophic consequences.” Cohen §4.02[3][c], at 232, n. 220.

Other than that (which is basically dicta), n0 new law at all. There was no point, other than to throw a bone to a nonmember bank that a tribal jury found to have racially discriminated against tribal members on their commercial loans, a verdict not preserved for review by the bank.

What’s your vote? Comments welcome.

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1 Response to Blog Post of the Day — “The Frequent Irrelevancy of the Supreme Court”

  1. aet1 says:

    Plains Commerce Bank may not have changed much on the ground, but it still one of the most rankling Indian law cases out there. Discrimination has no effect on the Tribe or its members?? It contains some of the most presposterous statements I’ve read. I would say Hicks could be my pick. There’s a lot of broad dicta, but the narrow result could probably have been readily predicted, given the Court’s broad concern for states’ rights and its relative indifference to tribal rights.

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