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

Kermit Roosevelt III

University of Pennsylvania Law School

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.

Number of Pages in PDF File: 58

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Date posted: June 10, 1999  

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

Contact Information

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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