Zombie Litigation: Revivers and Retroactive Lawsuits are Bad Ideas

Liability Outlook, No. 2, April 2008

7 Pages Posted: 5 Apr 2008

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

Suggested Citation

Frank, Theodore H., Zombie Litigation: Revivers and Retroactive Lawsuits are Bad Ideas. Liability Outlook, No. 2, April 2008, Available at SSRN: https://ssrn.com/abstract=1116775

Theodore H. Frank (Contact Author)

Competitive Enterprise Institute ( email )

1310 L Street NW
7th Floor
Washington, DC 20005
United States

HOME PAGE: http://cei.org/content/ted-frank

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