Brett Stuff
Judging the Judges
Term Year: 2018

Clayvin Herrera, Petitioner v. Wyoming

Summary Analysis

DATE: 2019-05-20
DOCKET: 17-532
NAME: Clayvin Herrera, Petitioner v. Wyoming

   AUTHOR: Sotomayor
   JOINING: Ginsburg, Breyer, Kagan, Gorsuch
   GOOD: Yes

OPINION: Dissenting
   AUTHOR: Alito
   JOINING: Roberts, Thomas, Kavanaugh
   GOOD: No

Case Commentary

How about those Crow names?
Here's a question for you Politically Correct Fools out there. Is it wrong to appreciate a name? Because (let me tell you) I have never composed a list of names before for any other piece of litigation... or to my memory, for any other writing project.

Issue Preclusion: seems to be very much stare decisi under a different name. Basically, I take it to mean the same issue cannot be re-litigated by the same parties.

But surely, there must be an exemption after the passage of time... however long that might need to be.

The Court (as the Dissent quotes), says this should happen (or can happen) whenever there is a "change in the applicable legal context." Certainly, this must mean it happens whenever their is a new Justice on The Supreme Court (or the appropriate Appellate Court); and thus (by extension), whenever there is any change in Judge, Jury, or the Underlying Social Conditions.

Basically, I come down against issue preclusion as hard as I come down against stare decisi, because the difference between the two is one of application, not intent.

Oh, here's an odd fact. The Crow Tribe's land claim only goes back 300-400 years. I wonder who they stole the land from?

Another odd fact is that Treaty Rights are presumed (or so, I assume, and it is here that I will insert my standard disclaimers and qualifications for the entire page, project, and site; for I am not a Lawyer and care not one wit about The Law, it is what is Right that interests me: anyway, Treaty Rights, as I understand them) are at the pleasure of Congress (or in this context, I believe it is just the Senate). For, there is no Law that Congress can pass that Congress cannot un-pass.
Sure. Sure. Sure. You had a treaty. No one is denying that. The question is whether you will still have one after today's vote.

As I interpret the evidence (blithely and off the cuff), I would hold (as a matter of law) that the Crow Tribe retains their hunting rights to this day.

Um, I would, also, hold (as matter of policy) that the time has come to take those very same hunting rights away. But then, that is a very different thing. And not something that The Court (in theory) is supposed to be taking away... even if that's exactly the effect previous decisions have had... you know, based on my interpretation and very limited reading.

I love it (simply love it) when the Dissent says "I do not claim that this reading of Mille Lacs," a previous case, "is indisputable."

I mean, if there is one single thing I dislike about The Law (beyond its institutionalized overreach), it's this inherent ambiguity.

No one knows what The Law is, because no one knows what any one Legal Decision that makes up that Law really means.

Legal Slips are called Opinions.

And as much as they try to be Logical Proofs, they never come close.

I mean, if you want to know what differentiates me from your typical Supreme Court Justice (you know, in my opinion, especially if we exclude the wearing of fancy robes, as I prefer an evening dress), it's:

Judging the Judges

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Reading The Law is like playing with Lego's, where every piece is unique... and most of them look more like Lincoln Logs or left over pieces from an Erector Set than anything else.

© copyright 2019 Brett Paufler
A Personal Opinion/Editorial