In every American jurisdiction, new rules of law announced by a court are presumed to have retrospective effect – that is, they are presumed to apply to events occurring before the date of judgment. There are, however, exceptions in certain cases where a court believes that application of the new rule will upset serious and reasonable reliance on the prior state of the law. This chapter summarizes these exceptional cases. It shows that the proper occasions for issuing exclusively or partially prospective judgments have varied over time and that there are still substantial differences in approach according to the particular jurisdiction and the kind of law under consideration. The chapter concludes with a brief survey of some of the still unresolved jurisprudential and constitutional problems raised by recognition of the power of courts to issue non-retroactive judgments.
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Article I, Section 9, Clause 3 refers to concerns on a federal level, whereas Section 10, Clause 1 concerns state laws.
The “takings” prohibition strictly applies only to the federal government but the Supreme Court has held that an identical limitation is imposed on the states by the Due Process Clause of the Fourteenth Amendment. Chi. B. & Q.R. Co. v. City of Chicago, 166 U.S. 226 (1897).
For an example of this theory being used in a judicial decision, see Prentis v. Atl. Coast Line Co., 211 U.S. 210, 226 (1908).
As noted by George P. Fletcher, courts do not “bring new laws into being,” but provide “readings or renditions of the meaning implicit in some independently existing, external object.” Fletcher (1985, p. 1273). William Blackstone also commented that “[J]udges do not pretend to make a law but to vindicate the old one from misrepresentation.” Blackstone. (1765, Vol. 1, pp. 69–70).
In keeping with this principle, see Frank v. Mangum, 237 U.S. 309, 344 (1915) (ex post facto laws); Tidal Oil Co. v. Flanagan, 263 U.S. 444 (1924) (impairment of contracts). However, occasionally judicial acts are contravened by constitutional law; see Gibson v. Am. Cyanamid Co., 719 F. Supp. 2d 1031, 1041–45 (E.D. Wis. 2010) (retroactive application of new tort liability violates Due Process Clause of Fourteenth Amendment). The United States Supreme Court has sometimes made an effort to restrain judicial innovation that may result in an unexpected imposition of criminal liability. This is discussed in Part III.A infra.
As noted by Richard H. Fallon, Jr. and Daniel J. Meltzer: “It would only be a slight exaggeration to say that there are no more Blackstonians.” Fallon and Meltzer (1991, p. 1759).
The practice had already been noted and defended in legal commentary. In 1917, the great scholar John Henry Wigmore argued that courts “should not have any more difficulty than the legislature in making a distinction between forward and backward application.” Levy (1960, p. 10) (discussing Wigmore (1917, pp. xxxvii–xxxviii)).
The same may be true of “strict liability” torts, which by definition do not turn on the degree of care exercised by a defendant. Intentional torts to the person, such as battery, assault or infliction of mental distress are also likely to occur without reference to governing law. This conclusion is less clear, however, with respect to intentional torts to property such as trespass or conversion which may often be the result of deliberate decision. We can also suppose that some instances of possible defamation or misrepresentation might be undertaken only after consideration of the relevant law.
See, for example: Parker v. Port Huron Hosp., 105 N.W.2d 1, 14–15 (Mich. 1960); Dufour (1985, p. 331). Note that Roger J. Traynor argues that the cost to previously injured persons of withholding application of the newly recognized liability outweighs any hardship to taxpayers of the municipality. Traynor (1977, p. 546).
A decision to apply retroactively new law formulated through administrative adjudication must take into account actual reliance on the old law by the party before the court. Garfias-Rodriguez v. Holder, 702 F.3d 504, 519–20 (9th Cir. 2012). In fact, serious doubt has been expressed about how often primary conduct is genuinely influenced by explicit consideration of the current state of the law. “Thus, in many cases, the parties, because of their not uncommon ignorance of the legal principle that controls their actions, will not be able to make a bona fide claim of surprise.” Yale Law Journal Note (1962, p. 346).
See, for example: Ryan v. Tinsley, 316 F.2d 430 (10th Cir. 1963); Mann v. Davis, 238 F. Supp. 458, 459 (E.D. Va. 1964) (“If the present legislature could not act in this interim, a potentially dangerous interregnum could result, for there would be no legislature available in an emergency.”).
See Buckley v. Valeo, 424 U.S. 1, 142 (1976); N. Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 87–88 (plurality opinion of Brennan, J.), 92 (Rehnquist, J., concurring in the judgment) (1982). In both of these cases the Court actually went further, staying its judgments for some period to allow Congress to address the constitutional issues and formulate a reasonable transition to a legally conforming system.
Examples of states implementing tests based on Chevron Oil include: Beavers v. Johnson Controls World Servs., Inc., 881 P.2d 1376, 1381–85 (N.M. 1994); Stowers v. Branch Banking & Trust Co., 731 S.E.2d 367, 370 (Ga. Ct. App. 2012); DiCenzo v. A-Best Prods. Co., 897 N.E.2d 132, 135–41 (Ohio 2008); Caperton v. A.T. Massey Coal Co., 690 S.E.2d 322, 351–52 (W. Va. 2009); Schmill v. Liberty Nw. Ins. Corp., 114 P.3d 204, 206–08 (Mont. 2005). The Chevron Oil case is discussed further at infra text accompanying notes 25–28.
Paraphrased from Chevron Oil (1971, pp. 106–07).Note, however, that the plaintiff in the instant case was granted the benefit of the rule. This formula was modified in Humphrey v. Great Atlantic & Pacific Tea Co., 993 A.2d 449 (Conn. 2010). See infra note 20.
For a recent example see Barnett v. First National Insurance Co. of America, 110 Cal. Rptr. 3d 99, 104 (Cal. Ct. App. 2010) (declining to apply new rule to parties before the court and implicitly declining to apply new rule to other parties that had relied on the old rule).
The court presumably was thinking of the time it would take to secure adequate insurance. See Durgala (1962–1963, p. 60). When next year the same court abolished the immunity of religious institutions, it postponed the effect of its holding for 3 months. Widell v. Holy Trinity Catholic Church, 121 N.W.2d 249, 254 (Wis. 1963). In both cases, however, the plaintiff in the case at bar was allowed to recover. Holytz (1962, p. 626); Widell (1963, pp. 254–55).
See also Smith v. State, 473 P.2d 937, 950 (Idaho 1970) (tort liability of state would “govern all future causes of action arising on or after 60 days subsequent to the adjournment of the First Regular Session of the Forty-First Idaho State legislature unless legislation is enacted at that session with respect to the abolition of the sovereign immunity of the state.”).
“Eliminating a litigant’s incentive to argue for a change in the law may serve to stifle the development of the common law” (Ghatan 2010, p. 193). The same author also notes, however, the argument that the option of prospective overruling encourages legal change insofar as it allows courts to undertake it without imposing the serious dislocation that retroactivity may create (Ghatan 2010, p. 193).
Another instance of judicial adjustment of a holding of partial retroactivity to avoid a glaring inequity is Humphrey (2010), in which the Connecticut Supreme Court modified its statement in Kelly (2007, p. 265 n.9) – discussed at supra note 15 – that an expanded rule of tort liability would apply only to future cases and “previously filed cases in which trial ha[d] not yet commenced” on the date of decision. Humphrey (2010, pp. 451–52) (quoting Kelly (2007, p. 265 n.9)). In Humphrey (2010), the Court agreed that the new rule should also apply to cases where trial had begun and the plaintiff had raised at trial the same claim as that later adopted in Kelly. Humphrey (2010, p. 453). The Court was unwilling to sustain differences occasioned by the happenstance that one case had reached it before the other. Humphrey (2010, p. 453).
See, for example, Swift v. Tyson, 41 U.S. (16 Pet.) 1 (1842). This policy was reversed in 1938 in the famous case of Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938). Under current law, federal courts in diversity cases must apply the law of the state where the court sits.
See, for example: Gelpcke v. City of Dubuque, 68 U.S. 175 (1863); Douglass v. County of Pike, 101 U.S. 677 (1879). See also Kuhn v. Fairmont Coal Co., 215 U.S. 349 (1910). For a critical review of these cases, see Thompson (1992).
Discussed in Part III.B infra.In two of these cases, this determination relieved the court of the responsibility for holding completed elections invalid. Cipriano v. City of Houma, 395 U.S. 701, 706 (1969); Allen v. State Bd. of Elections, 393 U.S. 544, 572 (1968). The third involved the clarification of a rule of federal jurisdiction, which the Court did not apply to the litigants before it in view of their reasonable reliance on the alternative reading. England v. La. State Bd. of Med. Exam’rs, 375 U.S. 411, 422–23 (1964). The Court referred to, but did not employ, the option of prospectivity in two antitrust cases. Hanover Shoe v. United Shoe Mach. Corp., 392 U.S. 481, 496 (1968); Simpson v. Union Oil Co., 377 U.S. 13, 24–25 (1964). An earlier case subsequently referred to by the Court in support of the practice is more properly understood as an example of the policy, discussed in text preceding note 32, of not re-opening finally adjudicated cases. Chicot Cnty. Drainage Dist. v. Baxter State Bank, 308 U.S. 371 (1940).
Justice Douglas concurred without reaching the question of retroactive effect. Chevron Oil (1971, p. 109).
See supra text accompanying notes 13–14. See infra text accompanying notes 56–61.Two justices in the second of the three state tax cases acknowledged that the decision “does limit the possible applications of the Chevron Oil analysis, however irrelevant Chevron Oil may otherwise be to this case.” James B. Beam (1991, p. 543) (opinion of Souter, J.). “We do not speculate,” they went on to say “as to the bounds or propriety of pure prospectivity.” James B. Beam (1991, p. 544) (opinion of Souter, J.). In 1995, seven justices joined an opinion confirming that “Harper [the third tax case] overruled Chevron Oil insofar as the case (selectively) permitted the prospective-only application of a new rule of law.” Reynoldsville Casket Co. v. Hyde, 514 U.S. 749, 752 (1995).
For further discussion, see infra text accompanying notes 77–78.Some recent examples include: Heritage Farms, Inc. v. Markel Insurance Co., 810 N.W.2d 465, 479–80 (Wis. 2012); Beaver Excavating Co. v. Testa, 983 N.E.2d 1317, 1328 (Ohio 2012); Bezeau v. Palace Sports & Entertainment, Inc., 795 N.W.2d 797, 802 (Mich. 2010); Ex parte Capstone Building Corp., 96 So. 3d 77, 90–95 (Ala. 2012).
See also James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 541 (1991) (opinion of Souter, J.).The complainants had asked to re-open a 1925 tax sale on the basis of a 1983 United States Supreme Court decision. Quantum (2013, p. 211).
The Court was commenting particularly on the doctrine as adopted in Louisiana but, as one commentator noted, it would “apply with equal truth to any of the United States.” Black (1902, p. 764).
Compare Ackermann v. United States, 340 U.S. 193, 198 (1950) (holding that a party’s free choice not to appeal a decision later shown to be erroneous did not justify Rule 60(b)(6) relief), with Polites v. United States, 364 U.S. 433 (1960) (refusing to decide whether the decision not to appeal due to clearly applicable adverse law was an absolute bar to Rule 60(b)(6) relief after a “clear and authoritative change” in that law).
This decision contains an extended argument for a strict interpretation of Rule 60(b)(6) when the motion to modify the judgment is based on a subsequent change in the law.
Quoting Moore (2004, p. 308) (internal quotation marks omitted).See also Tsakonites v. Transpacific Carriers Corp., 322 F. Supp. 722, 723–24 (S.D.N.Y. 1970) (reopening final judgment under Rule 60(b) when the Supreme Court in the course of enunciating the new rule explicitly referred to that judgment as “reaching a contrary result on identical facts.”).
See also Reform Party of Allegheny Cnty. v. Allegheny Cnty. Dep’t of Elections, 174 F.3d 305, 311–12 (3d Cir. 1999) (stating that “[i]ntervening developments in the law by themselves rarely constitute the extraordinary circumstances required for relief under Rule 60(b)(6)” but noting an exception where a judgment’s holding has been explicitly overruled by a higher court) (quoting Agostini v. Felton, 521 U.S. 203, 239 (1997)).
See supra text accompanying note 1. See supra text accompanying note 5. See also infra text accompanying notes 17–20.The case is discussed in Traynor (1977, pp. 548–49) and in Yale Law Journal Note (1962, p. 920). The latter source at 921 quotes State v. Longino, 67 So. 902, 903 (Miss. 1915), that to allow “punishment of an act declared by the highest court of the state to be innocent, because the same court had seen fit to reverse its interpretation of a statute, would be the very refinement of cruelty ….”
See also Marks v. United States, 430 U.S. 188 (1977) (reversing obscenity conviction that was unconstitutional under the First Amendment case law prevailing at the time of the trial even though the conviction might have been constitutional under a subsequently adopted standard in force at the time of the Supreme Court’s decision).
(Quoting Bouie v. City of Columbia, 378 U.S. 347, 354 (1964)). Gideon v. Wainwright, 372 U.S. 335 (1963). Miranda v. Arizona, 384 U.S. 436 (1966). United States v. Wade, 388 U.S. 218 (1967). Mapp v. Ohio, 367 U.S. 643 (1961). For a revisionist account, see Miller (2010).See, for example, Fay v. Noia, 372 U.S. 391 (1963) (holding that failure to raise a constitutional claim in state proceedings did not preclude habeas relief in federal court). Under the current statute, habeas corpus is available for persons “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a) (2012).
For a criticism of this equation, see Mishkin (1965, pp. 73–74). See also discussion at infra text accompanying notes 53–54.The Court defined “final” as “where the judgment of conviction was rendered, the availability of appeal exhausted, and the time for petition for certiorari [to the United States Supreme Court] had elapsed” before the law-changing decision. Linkletter (1965, p. 622 n.5). See also Tehan v. United States ex rel. Shott, 382 U.S. 406 (1966) (refusing to apply retroactively Griffin v. California, 380 U.S. 609 (1965), which prohibited prosecutorial comment on a defendant’s decision not to testify, to cases already final on the date Griffin was decided).
For a summary of the different approaches, see O’Sullivan (1983, pp. 174–75).See also Mackey (1971, p. 667) (holding that the extension of the privilege against self-incrimination in Marchetti v. United States, 390 U.S. 39 (1968) and Grosso v. United States, 390 U.S. 62 (1968) did bar introduction of evidence before the date of those decisions); Daniel v. Louisiana, 420 U.S. 31 (1975) (per curiam) (holding that the rule of Taylor v. Louisiana, 419 U.S. 522 (1975), which found the systematic exclusion of women from jury panels unconstitutional, only applied to convictions obtained by panels constituted after that decision).
See the quotation from Justice Harlan’s opinion in Mackey v. United States, reproduced at supra text preceding note 30.
By this time a substantial critical academic commentary had also developed. See McCall (1999, p. 809) (“[D]uring the 1970s … scholars were having ‘a veritable field day’ with the Warren Court’s opinions on prospective overruling.”) (citing Beytagh (1975, p. 1558)).
Payton v. New York, 445 U.S. 573 (1980).Ironically, this decision was held not to “affect those cases that would be clearly controlled by our existing retroactivity precedents,” making the restoration of the retroactivity rule non-retroactive in a substantial number of cases. Johnson (1966, p. 573).
Developed in Batson v. Kentucky, 476 U.S. 79 (1986).In Linkletter, the Court acknowledged that Mapp was applicable to cases “still pending on direct review at the time it was rendered” but did not apply to “state court convictions which had become final before rendition of our opinion.” Linkletter (1965, p. 622).
In “extraordinary” cases, moreover, even when habeas corpus is not available, a final criminal conviction may be reviewed by application in federal court for a writ of coram nobis. United States v. Denedo, 556 U.S. 904, 916 (2009).
However, see Yale Law Journal Note (1962, p. 951) (questioning the validity of the Court’s forecast and suggesting that the “sense of injustice which compels retroactive application of the new rule in favor of convicted prisoners” was a more significant cost than that occasioned by “temporarily postponing hearings on civil cases”).
In this respect, however, consider Justice White’s dissent in Shea v. Louisiana, 470 U.S. 51, 64 n.1 (1985) (“[B]y the same token, it would be less burdensome to apply Edwards retroactively to all cases involving defendants whose last names begin with the letter ‘S’ than to make the decision fully retroactive.”).
See also Shea (1985, p. 63) (White, J., dissenting), Currier (1965, pp. 259–260); Dashjian (1993, p. 381 n.352).
See supra text accompanying notes 57–60. For a recent application, see Chaidez v. United States, 133 S. Ct. 1103 (2013).See supra text accompanying notes 40–41. “There is little societal interest in permitting the criminal process to rest at a point where it ought properly never to repose.” Mackey (1971, p. 693) (Harlan, J., concurring in part and dissenting in part). But see Warring v. Colpoys, 122 F.2d 642, 647 (D.C. Cir. 1941).
The rehearing was held to be a proper exercise of a court’s power to issue a writ of error, coram nobis.
See also Yackle (2010, pp. 183–200) (discussing the relationship between the statute and the case law).
See, e.g., People v. Sanders, 939 N.E.2d 352 (Ill. 2010); Commonwealth v. Cunningham, No. 38 EAP 2012, 2013 WL 5814388 (Pa. Oct. 30, 2013).
See, for example, State v. Knight, 678 A.2d 642, 652 (N.J. 1996). On Linkletter and Stovall, see supra text accompanying notes 51–52.
See supra text accompanying notes 66–70. “Pure prospective overruling,” however, maintains existing precedent in the particular case at bar. See also Stephens (1998, p. 1565). See also James B. Beam (1991, p. 549 (Scalia, J., concurring).Prospective-only judgments are also obviously in tension with the stare decisis policy of equitable treatment of litigants insofar as it distinguishes parties solely on the basis of when their dispute arose (Auerbach 1991, p. 571).
See Rogers (1968, pp. 36–37) (“[A]n exploration of this doctrine of prospective overruling is but a specialized examination of the limits of judicial lawmaking with particular regard to the element of time of application of the overruling decision.”); Leflar (1974, p. 342).
See, for example, Gelpcke (1863, p. 211) (Miller, J., dissenting) (“[The majority] … holds that the decision of the court makes the law, and in fact, that the same statute or constitution means one thing in 1853, and another thing in 1859.”).
In criticizing the Linkletter decision (see supra note 51), Paul Mishkin stressed the “symbolic ideal reflected in the Blackstonian concept and … the emotional loyalties it commands.” Mishkin (1965, p. 66) (emphasis added).
See, for example, Traynor (1977, p. 535) (deriding as “moonspinning” the idea that “judges do no more than discover the law that marvelously has always existed, awaiting only the judicial pen that would find the right words for all to heed”).
On the relationship between prospective overruling and legal realism, see Levy (1960, pp. 1–3); see also Rogers (1968, p. 74) (“[T]he time has come to openly recognize the legislation involved when courts overrule precedents.”).
Justice Scalia later claimed that this interpretation of Marbury “would have struck John Marshall as an extraordinary assertion of raw power.” Harper (1993, pp. 106–07) (Scalia, J., concurring).
In the particular case, Holmes was discussing both common law and admiralty jurisprudence.Notwithstanding this statement, the Court promptly proceeded to limit the retroactivity of new interpretations of enacted law. See Shirley Wayside Ltd. P’ship v. Bd. of Appeals, 961 N.E.2d 1055, 1065 (Mass. 2012); Eaton v. Fed. Nat’l Mortg. Ass’n, 969 N.E.2d 1118, 1132–33 (Mass. 2012). The Pennsylvania Supreme Court was less categorical but expressed the view that “[l]ogically, courts have greater control over questions of retroactivity or prospectivity if the ‘rule’ is of the court’s own making, involves a procedural matter, and involves common law development. On the other hand, courts should have the least flexibility where … the holding at issue … involves an interpretation of a statute.” Kendrick v. Dist. Attorney of Phila. City, 916 A.2d 529, 539 (Pa. 2007). By parallel reasoning, a court of last resort may feel more free to limit the retroactivity of a judgment changing judicial procedure under that court’s “supervisory power” to manage the effective operation of the lower courts. State v. Cabagbag, 277 P.3d 1027, 1041–42 (Haw. 2012). Another category of cases which it has been suggested involves judicial legislation – and hence is appropriate for non-retroactive application – is that in which the judges supply a conspicuous gap in legislation. Cases where the Court chooses an appropriate statute of limitations where none is specified in the underlying statute may fall in this category. See, for example, Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350 (1991).
The Sunburst judgment is discussed at supra text preceding note 7.
