Retroactivity and Legal Change: An Equilibrium Approach
In 110 Harvard Law Review 1055, (1997).
Posted: 27 Oct 1997
Abstract
This article assesses current retroactivity doctrine and proposes a new framework for retroactivity analysis. Current law has failed to reflect the complexity of defining retroactivity and to harmonize the conflicting concerns of efficiency and fairness that animate retroactivity doctrine. By drawing a sharp distinction between adjudication and legislation, the law has also overlooked the similarity of the issues raised by retroactivity in both contexts. The article proposes instead an equilibrium approach, influenced by the legal process school, to connect retroactivity to theories of legal change. Instead of focusing on the nature of the new legal rule, this approach emphasizes the context in which change occurs. The use of equilibrium theory improves doctrinal analysis of the temporal line-drawing associated with legal change and clarifies the relationship of retroactivity rules to lawmaking power.
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