Managing the Costs of Constitutional Innovation
University of New Hampshire School of Law
February 19, 2013
Courts sometimes withhold remedies for justiciable and meritorious constitutional claims despite Marbury’s dictum that rights-violations require remedies. The phenomenon occurs with frequency in litigation establishing path-breaking rulings because constitutional innovation can be disruptive and expensive. This paper responds to scholarship calling for a revival of constitutional non-retroactivity doctrine — the now moribund practice of announcing rulings with only prospective effect — to minimize the costs occasioned by constitutional change. The paper argues against reviving non-retroactivity doctrine and proposes a framework that provides courts with concrete guidance on when they may permissibly withhold constitutional remedies. The proposed approach rationalizes current law — which is surprisingly coherent when viewed in terms of how constitutional remedies function — and better respects Article III limits on judicial power than a regime that legitimizes prospective rulings.
Number of Pages in PDF File: 53working papers series
Date posted: February 21, 2013 ; Last revised: March 6, 2013
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