The Retroactive and Prospective Application of Judicial Decisions
Shannon, Bradley Scott, Harvard Journal of Law & Public Policy
I. INTRODUCTION 812 II. A SUMMARY OF SUPREME COURT RETROACTIVITY/PROSPECTIVITY DOCTRINE 816 A. Linkletter v. Walker and its Progeny 817 B. Chevron Oil Co. v. Huson and the Standard For Civil Cases 819 C. United States v. Johnson, Griffith v. Kentucky, and the New Rule for Criminal Cases 820 D. Teague v. Lane and the Standard Applicable to Habeas Corpus Cases 821 E. American Trucking Associations, Inc. v. Smith and the Beginning of the Demise of Chevron Oil 823 F. James B. Beam Distilling Co. v. Georgia 826 G. Harper v. Virginia Department of Taxation and the New Rule for Civil Cases 829 H. Reynoldsville Casket Co. v. Hyde: A Postscript 832 I. Why Prospectivity? 833 III. AN ARGUMENT FOR A FIRM RULE OF RETROACTIVE APPLICATION IN CIVIL AND CRIMINAL CASES 836 A. Retroactivity and the Nature of the Adjudicative Function 838 B. Retroactivity and the Distinction Between Holding and Dicta 845 C. Retroactivity and the Doctrine Of Stare Decisis 851 D. Retroactivity as a Judicial Rule 862 1. The Furtherance of Private Ordering 863 2. The Furtherance of Fair and Efficient Adjudication 865 3. The Furtherance of Public Confidence in the Judiciary 871 IV. CONCLUSION 874
Historically, rules of law announced in judicial decisions were applied retroactively (1)--that is, to conduct or events that had occurred prior to the dates of those decisions. (2) Today, the retroactive application of judicial decisions remains the norm. (3)
A problem often arises, though, when a court considers the application of a rule of law that seems "new" in some significant way. (4) The problem usually takes the form of reliance; because one or more parties (to the instant case and perhaps to other pending cases that involve events prior to the date of decision) relied on the "old" law, it would be unfair to apply the new law to those parties. (5) Recognizing this problem, courts (6) and legal scholars (7) have considered whether and to what extent "new" rules of law should be applied only prospectively, (8)that is, only to events transpiring after the date of the precedent-setting decision (often termed pure prospectivity (9)) or only to such future occurrences and to the parties in the precedent-setting case itself (often termed modified or selective prospectivity (10)). This experiment with prospectivity reached its peak in the 1960s and 1970s, when the Supreme Court of the United States applied various forms of prospectivity in certain criminal cases on collateral review, (11) and then in certain criminal (12) and civil (13) cases on direct review. Eventually, the Court reverted to a firm rule of retroactive application in criminal cases on direct review, (14) and it now appears to have done the same in the civil arena.
Nonetheless, the "controversial jurisprudence of 'new' law" (16) seems far from settled. The Supreme Court has yet to resolve definitively the scope of retroactivity in civil cases on direct review. (17) Moreover, though a firm rule of retroactivity appears to be the trend in the federal courts, (18) the Supreme Court remains divided over the appropriate methodology to be employed in this area. (19) The Court's reluctance to embrace a firm rule of retroactivity appears to be partly attributable to dissatisfaction with the current theoretical justification for this approach. …