"Time is always necessary in the law."1
The problem of conflicts of laws in time is not novel; rather, the law that concerns this problem has a history as deep and rich as that of the written law itself.2 Although "[c]onventional views of legal change emphasize the values of certainty and reliance, and are therefore hostile to explicitly retroactive laws,"3 the frequency with which these conflicts arise is steadily increasing. The cause of this development is the exponential growth in new legislation over the past twenty years.4
The law of retroactivity of laws, also called "intertemporal conflicts" law, is highly complex, implicating a variety of federal and state constitutional concerns including the Contracts Clause, the Takings Clause, and the Due Process Clause as well as the comparable provisions of the state constitution. The law of retroactivity of laws affects a variety of substantive law areas and has the potential of divesting individuals of vested property rights. Retroactive law-making challenges the presumptions underlying democracy and the fundamentals of civilized and just societies.5 That is, individuals in such societies conform their behavior and carry out transactions in accordance with legislation. When new legislation is enacted, notions of how individuals are to conduct themselves and affairs is disrupted. Certainty and stability in the law is preferred. Individuals expect to be able to rely on established law without any rights potentially being affected. In sum, retroactive laws meddle with already-established legal interests and rights.
The current intertemporal conflicts law is flawed with a variety of deficiencies, the most significant being the lack of an official definition of retroactivity and standards for the courts to employ in the determination of intertemporal conflicts law issues. The lack of such guidance has prompted much scholarly commentary and debate amongst members of the legal communities of both common law and civil law systems. An assortment of solutions has been proposed in each system to address the current deficiencies. These proposals will be analyzed in this comment.
The plan of this comment is as follows. Part II considers and examines intertemporal conflicts law in the abstract, explicating the two sets of intertemporal law rules. It discusses the basic rules of retroactivity including civil law solutions, common law solutions, and the solutions adopted by the authors of Louisiana's Civil Code article 6.6 Furthermore, it examines the constitutional rules of intertemporal law that limit the power of the legislature to impose retroactive effects, in particular, the Due Process Clauses of the federal and state constitutions.
Part III provides a concrete (and timely) illustration of the complexities and deficiencies in this law and how the proposed solutions fare substantively, one based on the recent re-enactment in Louisiana of the law of "disinherison." The intertemporal issues presented by the re-enactment of that law are tangibly and practically suited for this purpose because sorting out those issues requires consideration of both the basic intertemporal law and the constitutional constraints on legislative retroactivity. Temporal conflicts created by the re-enactment of that law are a particularly useful illustrative device because many of the possible cases to which the new law might be applied fall into the hardest category of intertemporal cases to solve-those that involve a "dispersion of the facts." This new legislation also serves as a useful vehicle for illustrating proposed solutions to problems associated with basic intertemporal law (Louisiana Civil Code article 6) and constitutional intertemporal law. This illustration of the retroactive application of law through the substantive area of Louisiana successions law, specifically the law on disinherison, will provide a civilian analysis to a recurring legal problem that jurists, attorneys, academics, and citizens alike can appreciate.
Finally, Part IV of the comment stresses the importance of the law of retroactivity of laws. In addition, it encourages further comprehensive studies and analyses in this area to foster smoother transitions in the law.
Before any discussion of the permissibility of the retroactive application of any new law is possible, a critical examination and analysis of the law of retroactivity of laws itself is required. Intertemporal law involves two sets of rules: basic rules and constitutional rules. The basic rules are used to determine whether the legislature wanted the new law to be applied retroactively. Legislative intent and direction controls this set of rules. The constitutional rules implicated by intertemporal law set limitations on the power of the legislature to impose retroactive effects.
Two questions arise in the analysis of the permissibility of the retroactive application of a particular law. The criterion for identifying retroactive application of the law is somewhat of a "two- pronged" test. One must not conflate the two prongs for they are completely conceptually distinct from one another. The first question to be analyzed is if the new law is applied to this particular situation, would this in fact qualify as a retroactive application of the law? If the answer to this question is no, then there is no intertemporal conflicts law problem. If the answer is yes, then one must proceed to the second prong of the test: given that applying the new law to this situation would qualify as a retroactive application, is it then permissible to do so? It is at this level that constitutional provisions are implicated. This two-prong test is to be applied to every retroactivity problem regardless of the substantive area of the law.
The basic rules of intertemporal law have one objective and one objective only: to determine whether the legislature wished for the new law to be applied retroactively. If the legislature clearly directed retroactive application of the law, then the "basic rules" analysis is at an end. But, if the legislature did not, then legislative intent as to retroactivity must be reconstructed. In reconstructing the legislature's intent, there is a general default rule: presume that the legislature wanted no retroactivity. There is an exception, however, in reference to procedural and interpretative legislation. Procedural law is the set of rules that prescribe the steps for having a right or duty judicially enforced; procedural law contrasts with substantive law which defines the specific rights or duties themselves. Interpretative law is the body of law that ascertains the meaning of laws.
The default rule in retroactivity of law examinations is to presume that the legislature did not intend or want the legislation to apply retroactively.7 The most difficult problem of intertemporal law has been devising a definition of retroactivity and establishing criterion for retroactivity versus prospectivity. Without such concrete guidelines, intertemporal law issues will continue to plague legislatures and courts alike.
In most, if not all, civil law jurisdictions other than Louisiana, the "basic" rule (unlike the basic rules in common law jurisdictions and in Louisiana) is relatively uncomplicated: when there is ambiguity as to whether the legislature (or law-making body) intended for the law to be retroactively applied, the civil law default rule is that the law is to be applied prospectively only. This rule, obviously enough, is identical to the general rule of Louisiana Civil Code article 6, of which it is, in fact, the source. Under this civil law rule, as under the general rule of article 6, distinguishing "retroactive" from "prospective" applications is critically important. A variety of definitions of or criteria for identifying retroactivity has arisen within the civil law traditions.