The Incentive Problem with Prospective Overruling: A Critique of the Practice

Abstract

This article critiques the practice of prospective overruling-where a court overturns prior case law but limits the application of the new rule to future cases-by analyzing the decisions of the Massachusetts Supreme Judicial Court, with a particular focus on trusts and estates cases. The primary rationale behind prospective overruling is the purported reliance on the old law by the party who loses the case. Through an examination of case law the author contends that there is often no actual reliance by the losing party, or such reliance is unreasonable, resulting in a weak justification for prospective overruling. Moreover, the author argues that by issuing a decision prospectively courts risk eliminating any incentive for parties to argue for changes to the law. The common law evolves through the efforts of litigants who seek to have past judicial decisions overturned or amended. Other scholars have contended that prospective overruling will not result in a lack of incentive to litigate because even though the party seeking a change in the law will not benefit from that change in the immediate case, he will likely benefit in future litigation as a “repeat player.” The author demonstrates the inapplicability of this contention to the trusts and estates field, where litigants are unlikely to be repeat players. The author concludes by proposing alternative approaches that seek to uphold any actual and reasonable reliance interests at stake, while simultaneously maintaining the incentive for parties to argue for changes to the common law.

Keywords: wills, trusts, estates, prospective overruling, retroactive