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A Little Theory is a Dangerous Thing: The Myth of Adjudicative Retroactivity

58 Pages Posted: 10 Jun 1999  

Kermit Roosevelt III

University of Pennsylvania Law School

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Abstract

The article analyzes the question of the retroactive effect of judicial decisions. It surveys the history of retroactivity doctrine to demonstrate that the current approach to retroactivity jurisprudence is a consequence of the Warren Court's adoption of the principle that parties should be governed by the law in effect at the time of their actions. This principle leads to a theoretical framework that suffers from serious difficulties. In particular, it is unable to distinguish between cases presented on direct and collateral review, and consequently unable to reach a satisfactory treatment of habeas petitions based on changes in law. The article recommends a return to the earlier jurisprudence under which courts decided cases based on the best current understanding of the law, and demonstrates that this approach provides a sound basis for retroactivity.

Suggested Citation

Roosevelt, Kermit, A Little Theory is a Dangerous Thing: The Myth of Adjudicative Retroactivity. Available at SSRN: https://ssrn.com/abstract=160408 or http://dx.doi.org/10.2139/ssrn.160408

Kermit Roosevelt III (Contact Author)

University of Pennsylvania Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States
215.746.8775 (Phone)

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