The Retroactive and Prospective Application of Judicial Decisions

By Shannon, Bradley Scott | Harvard Journal of Law & Public Policy, Summer 2003 | Go to article overview

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

I. INTRODUCTION

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. …

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