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Taking Time Seriously: The Federal Constitutional Right to be Free from 'Startling' State Court Overrulings

50 Pages Posted: 22 Mar 2010 Last revised: 5 Feb 2013

John Martinez

University of Utah - S.J. Quinney College of Law

Date Written: March 20, 2010

Abstract

This article proposes that when state courts overrule established state common law property doctrines, such courts should concurrently make three distinct determinations: (1) the substantive decision to overrule established law; (2) the temporal decision to identify those transactions to which the changed rules apply; and (3) the remedial decision to provide remedies - such as damages, injunctive relief, and/or a period to amortize investments - to those deprived of their reasonable expectations.

Keywords: overrulings, startling, retroactive, takings, just compensation clause, due process clause, contract clause

JEL Classification: D61,D63,D72,D78,D81,D82,D84,D91,D92,E13,E22,E61,E62,G14,H21,H53,H72,K11,K12,K41

Suggested Citation

Martinez, John, Taking Time Seriously: The Federal Constitutional Right to be Free from 'Startling' State Court Overrulings (March 20, 2010). Harvard Journal of Law and Public Policy, Vol. 11, No. 297, 1988. Available at SSRN: https://ssrn.com/abstract=1575629

John Martinez (Contact Author)

University of Utah - S.J. Quinney College of Law ( email )

383 S. University Street
Salt Lake City, UT 84112-0730
United States

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