A Little Theory is a Dangerous Thing: The Myth of Adjudicative Retroactivity

Abstract

The article analyzes the question of the retroactive effect of judicial decisions. It surveys the history of retroactivity doctrine to demonstrate that the current approach to retroactivity jurisprudence is a consequence of the Warren Court's adoption of the principle that parties should be governed by the law in effect at the time of their actions. This principle leads to a theoretical framework that suffers from serious difficulties. In particular, it is unable to distinguish between cases presented on direct and collateral review, and consequently unable to reach a satisfactory treatment of habeas petitions based on changes in law. The article recommends a return to the earlier jurisprudence under which courts decided cases based on the best current understanding of the law, and demonstrates that this approach provides a sound basis for retroactivity.