In the Wake of Schooner Peggy: Deconstructing Legislative Retroactivity Analysis

Abstract

Relatively few recent commentators have focused on retroactive civil legislation; commentators have instead tended to discuss retroactivity doctrine in the context of its applicability to criminal statutes, administrative regulations, or judicial decisions. Retroactivity is widely acknowledged as a difficult legal doctrine, and apparent inconsistencies in United States Supreme Court decisions have contributed to this perception. Although the Court's 1994 Landgraf decision has been portrayed as reconciling the Court's prior decisions and as providing a framework for retroactivity analysis, neither of these characterizations is entirely accurate; Landgraf did not persuasively reconcile the Court's retroactivity jurisprudence and its purported framework is incomplete.

The United States Supreme Court's recent decision in Martin v. Hadix exposes Landgraf's shortcomings, and thus provides the opportunity to review the doctrine pertaining to the retroactivity of civil legislation. A careful analysis of the Court's decisions reveals a consistent approach to retroactive legislation - an approach ultimately based in fundamental principles of fairness, but which has been masked by the Court's terminology.

Keywords: retroactivity, deportation, retroactive legislative