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