Retroactive adjudication

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This Article defends the retroactive nature of judicial lawmaking. Recent Supreme Court judgments have reignited debate on the retroactivity of novel precedent. When a court announces a new rule, does it apply only to future cases or also to disputes arising in the past? This Article shows that the doctrine of non-retroactive adjudication offers no adequate answer. In attempting to articulate a law of non-retroactivity, the Supreme Court has cycled through five flawed frame-works. It has variously characterized adjudicative non-retroactivity as (1) a problem of legal philosophy; (2) a discretionary exercise for balancing competing right and reliance interests; (3) a matter of choice of law; (4) a remedial issue; and (5) a contingency of last resort. This Article rejects these paradigms and instead offers an alternative framework grounded in conventional common-law reasoning: that judicial precedent is inherently retroactive. The “equitable considerations” animating this body of law can best be fulfilled by judicial abandonment of non-retroactivity doctrine. Instead, courts should respond to “new” law by turning to a long-held value in our legal system: that equity aids the vigilant, not those who sleep on their rights.

Original languageEnglish
Pages (from-to)276-365
Number of pages90
JournalYale Law Journal
Issue number2
Publication statusPublished - 2020

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ASJC Scopus Subject Areas

  • Law

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