Retroactivity of Judicial Decisions

• Author: Paul Bender
• Pages: 2223-2225

Page 2223

LEGISLATION ordinarily does not apply retroactively to conduct occurring prior to its adoption but only to actions taking place after enactment. Indeed, the potential unfairness of some retroactive legislation is so great that certain forms of legislative retroactivity are specifically prohibited by the Constitution. The EX POST FACTO clauses of the Constitution prohibit retroactive criminal penalties, and the CONTRACT CLAUSE limits state legislation that would impair the obligation of pre-existing contracts. In addition, certain other fundamentally unfair forms of legislative retroactivity may violate constitutional due process guarantees.

Judicial decisions, on the other hand, ordinarily are retroactive in application. To some extent, such retroactivity is a consequence of the nature and function of the judicial decision-making process. Traditional lawsuits and criminal prosecutions concern the legal consequences of acts that have already taken place. If judicial decisions in such cases are to adjudicate the issues between the parties, those decisions necessarily must apply to prior events. The retroactive effect of judicial decisions, however, commonly extends beyond application to the particular parties involved in a case. To the extent that a judicial decision constitutes a new legal precedent, it will ordinarily be applied to all undecided cases that are subsequently litigated, regardless of whether the relevant events occurred before or after the new precedent was announced.

Although traditional judicial decisions are, in theory, completely retrospective in nature, two sets of legal doctrines place important practical limits on the actual breadth of decisional retroactivity. Statutes of limitations, which require suits to be brought within some specified period of time after the relevant events occur, limit the retrospective application of new precedents to the length of the prescribed limitations period; and the doctrines of RES JUDICATA and collateral estoppel prevent the relitigation of cases and issues that have been finally decided before the new precedent is announced. In addition, as in the case of retroactive legislation, there are some circumstances of fundamental unfairness in which constitutional principles may prevent the retroactive use of judicial decisions. By analogy to the constitutional prohibition of ex post facto laws, for example, the Supreme Court in Bowie v. City of Columbia (1964) held it...