Zombie Litigation: Revivers and Retroactive Lawsuits are Bad Ideas

Abstract:     
The controversy over whether and how to seat the Michigan and Florida delegations at the 2008 Democratic National Convention shows the danger of changing rules midstream and upsetting settled expectations. Reviver statutes not only obviate statutes of limitations, which are a critical aid to justice, by reviving claims that have expired or never existed, but they can also pose the danger of undoing the benefits of future prospective legislation. Because of the adverse effect on legal certainty, permitting such revivers acts to entrench the policy choices of legislatures that expand liability, when legislatures that restrict liability can get no such deference. In evaluating laws, the issue is not merely one of retroactivity, but of the importance of promoting legal certainty. For example, the FISA Amendments Act, S. 2248, while ostensibly acting retroactively to grant immunity to telecommunications companies that cooperated with the Bush administration's antiterror surveillance program, works to protect settled expectations.

Keywords: tort reform, retroactivity, entrenchment, medical malpractice, child abuse

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