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The Framework(s) of Legal Change

Toby J. Heytens

University of Virginia School of Law

August 1, 2011

Cornell Law Review, Vol. 97, p. 595, 2012
Virginia Public Law and Legal Theory Research Paper No. 2011-20

The Supreme Court constantly is changing what previously had been relatively settled understandings of what the law requires. Whenever that happens, the question arises: What to do about cases that courts have already resolved using subsequently changed legal principles? In a previous article, I identified and criticized a previously under-appreciated method for limiting the disruptive effects of legal change: a “forfeiture” approach that subjects criminal defendants who failed to anticipate new rulings to a narrow form of appellate review that virtually guarantees they will lose. This Essay expands the analysis in light of the Supreme Court’s recent decision in Davis v. United States, which suggests a different, “remedy-limiting” approach. Although representing a substantial improvement over the flawed forfeiture approach, a remedy-limiting approach remains inferior to a return to a more straightforward “non-retroactivity” analysis as a way of grappling with the important and unique problems posed by legal change.

Number of Pages in PDF File: 32

Keywords: legal change, retroactivity, forfeiture, plain error, remedies

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Date posted: September 1, 2011 ; Last revised: June 8, 2013

Suggested Citation

Heytens, Toby J., The Framework(s) of Legal Change (August 1, 2011). Cornell Law Review, Vol. 97, p. 595, 2012; Virginia Public Law and Legal Theory Research Paper No. 2011-20. Available at SSRN: http://ssrn.com/abstract=1920753 or http://dx.doi.org/10.2139/ssrn.1920753

Contact Information

Toby J. Heytens (Contact Author)
University of Virginia School of Law ( email )
580 Massie Road
Charlottesville, VA 22903
United States
202-257-2635 (Phone)

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