The retroactive and prospective application of judicial decisions.

• Author: Shannon, Bradley Scott

1. 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. (20) Indeed, recent legal scholarship has favored some form of prospective application. (21)

   The primary purpose of this Article is to make a normative case for a firm rule of retroactivity in civil and criminal cases on direct review. Part II is an outline of the Supreme Court's development of modern retroactivity/prospectivity doctrine. Part III argues for a firm rule of retroactive application based on the adjudicative and precedent-setting functions of courts and on a general critique of retroactivity as a judicial standard. The Article concludes that a firm rule of retroactive application of judicial decisions in all civil and criminal cases on direct review is superior to both prospective and mixed methodologies, and moreover, that any perceived deficiencies in this approach are illusory, orat least are outweighed by its advantages.

2. A Summary Of Supreme Court Retroactivity/Prospectivity Doctrine

   Rules of law have traditionally been applied to the parties to the case in which those rules were announced as well as in later cases, without regard to the date of the disputed events or the nature of the rule. (22) Frequently cited as authority for these propositions is United States v. The Schooner Peggy, (23) in which Chief Justice Marshall, writing for the Court, opined:

   [I]f, subsequent to [al judgment, and before the decision of the appellate court, a law intervenes and positively changes the rule which governs, the law must be obeyed, or its obligation denied.... [T]he court must decide according to existing laws, and if it be necessary to set aside a judgment, rightful when rendered, but which cannot be affirmed, but in violation of law, the judgment must be set aside. (24) Though the Schooner Peggy Court "was speaking of the intervention of a treaty," by the middle of the twentieth century, these principles had "found acceptance in a variety of situations. Thus, in Vandenbark v. Owens-Illinois Glass Co., a case decided 140 years after Schooner Peggy, the Court reaffirmed "that nisi prius and appellate tribunals alike should conform their orders to the... law as of the time of the entry. Intervening and conflicting decisions will thus cause the reversal of judgments which were correct when entered." (26)

   Against this backdrop stands the Supreme Court's recent retroactivity/prospectivity analysis, of which Part II presents a summary. Part II concludes by synthesizing these cases for the purpose of explaining how prospectivity has achieved its jurisprudential prominence.

   1. Linkletter v. Walker and Its Progeny

      Modern Supreme Court prospectivity doctrine began with Linkletter v. Walker, (27) a habeas corpus proceeding in which the Court considered whether its prior holding in Mapp v. Ohio, (28) which extended the Fourth Amendment exclusionary rule to the states, should be applied to a state conviction that had become final (in terms of direct review) before Mapp was decided. (29) The Court observed that "[a]t common law there was no authority for the proposition that judicial decisions made law only for the future," (30) despite the fact that, on occasion, it had limited the retroactive operation of its rulings. (31) Concluding that "a change in law will be given effect while a case is on direct review, [while] the effect of [a change] on ... judgments when collaterally attacked is subject to no set 'principle of absolute retroactive invalidity,'" (32) the Court held that "in appropriate cases the Court may in the interest of justice make the rule prospective." (33)

      To determine when justice required that a rule have retroactive effect, the Court resolved to '"weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation." (34) The Court went on to reject retrospective application of the Mapp decision after considering "the purpose of the [new] rule; the reliance placed upon the [prior] doctrine; and the effect on the administration of justice." (35)

      In Johnson v. New Jersey, (36) the Court departed from its earlier statement in Linkletter to hold that the three-part test articulated in Linkletter with respect to criminal cases on collateral review applied equally to criminal cases on direct review. (37) As a result, in the years that followed, "a number of new rules of criminal procedure were held not to apply retroactively either to final cases or to cases pending on direct review." (38)

   2. Chevron Oil Co. v. Huson and the Standard for Civil Cases

      Modern prospectivity doctrine with respect to civil cases on direct review began with the Supreme Court's decision in Chevron Oil Co. v. Huson. (39) In Chevron Oil, the issue before the Court was whether its decision in Rodrigue v. Aetna Casualty & Surety C0., (40) which resulted in the imposition of a one-year statute of limitations for personal injury actions, barred Huson's action even though Rodrigue was decided after Huson's action was commenced. (41) The Chevron Oil Court held that the Rodrigue holding should not be applied to bar Huson's action. (42)

      The Court interpreted its recent retroactivity precedent to require consideration of three factors:

      First, the decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed. Second, it has been stressed that "we must weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation." Finally, we have weighed the inequity imposed by retroactive application, for where a decision of this Court could produce substantial inequitable results if applied retroactively, there is ample basis in our cases for avoiding the injustice or hardship by a holding of nonretroactivity. (43) The Court concluded on the basis of these factors that "[b]oth a devotion to the underlying purpose of the Land Act's absorption of state law and a weighing of the equities requires nonretroactive application of the state statute of limitations here." (44)

      In the years following Chevron Oil, the Court, at times, purported to follow the rule established in that case without exception. (45) In reality, though, the Court frequently adhered to the rule established in Schooner Peggy (46) with respect to changes in the law occurring in civil cases while on direct review. (47)

   3. United States v. Johnson, Griffith v. Kentucky...