Retroactive Application of 'New Rules' and the Antiterrorism and Effective Death Penalty Act

51 Pages Posted: 16 Jul 2007

See all articles by A. Christopher Bryant

A. Christopher Bryant

University of Cincinnati - College of Law


For three decades, the retroactive application of United States Supreme Court criminal procedure decisions has confused the Court's habeas corpus jurisprudence. In 1999, the Court's decision in Williams v. Taylor might have resolved the ambiguous relationship between the pre-1996 habeas corpus retroactivity decisions - the most significant of which was Teague v. Lane - and the habeas corpus reform provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Unfortunately, the Williams decision has only engendered further confusion. Two decades before Teague, the second Justice Harlan proposed an approach to retroactivity questions, arguing that a decision that announced a new rule of criminal procedure should not apply in federal habeas corpus proceedings reviewing criminal convictions that had become final before the new rule's announcement. The Teague Court expressly adopted Justice Harlan's suggestion, but the post-Teague opinions that addressed the subsidiary question of whether particular Supreme Court rulings constituted new rules greatly complicated the issue. In numerous decisions during the 1990s, a fragile majority of the Court employed such an expansive definition of the term new rule that the Justices effectively converted Justice Harlan's retroactivity system into a deferential standard of review for state court decisions, even as to questions of federal law. The 1996 overlay of AEDPA's ambiguous habeas corpus reform provisions aggravated the confusion created by the case law in the early 1990s. This Article seeks to clarify habeas corpus jurisprudence by advancing the counterintuitive claim that AEDPA, properly understood, compels the Court to revisit and narrow substantially its definition of new rules to honor the Act's command that federal courts review pure questions of law de novo. The Article also articulates a standard for determining when a Supreme Court decision announces a new rule that better effectuates both AEDPA and Justice Harlan's position on retroactivity.

Keywords: Death Penalty, Terrorism, Retroactivity, Habeas Corpus, Criminal Procedure

JEL Classification: K14, K41, K49

Suggested Citation

Bryant, A. Christopher, Retroactive Application of 'New Rules' and the Antiterrorism and Effective Death Penalty Act. George Washington Law Review, Vol. 70, No. 1, 2002, U of Cincinnati Public Law Research Paper No. 07-09, Available at SSRN:

A. Christopher Bryant (Contact Author)

University of Cincinnati - College of Law ( email )

P.O. Box 210040
Cincinnati, OH 45221-0040
United States
513-556-6805 (Phone)
513-556-1236 (Fax)

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