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The Framework(s) of Legal Change

32 Pages Posted: 30 Aug 2011 Last revised: 1 Jun 2013

Toby J. Heytens

University of Virginia School of Law

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Date Written: August 29, 2011


The Supreme Court constantly is changing what previously had been relatively settled understandings of what the law requires. Whenever that happens, the question arises: What to do about cases that courts have already resolved using subsequently changed legal principles? In a previous article, I identified and criticized a previously underappreciated method for limiting the disruptive effects of legal change: a “forfeiture” approach that subjects criminal defendants who failed to anticipate new rulings to a narrow form of appellate review that virtually guarantees they will lose. This Essay expands the analysis in light of the Supreme Court’s recent decision in Davis v. United States, which suggests a different, “remedy-limiting” approach. Although representing a substantial improvement over the flawed forfeiture approach, a remedy-limiting approach remains inferior to a return to a more straightforward “non-retroactivity” analysis as a way of grappling with the important and unique problems posed by legal change.

Keywords: Retroactivity, forfeiture, remedy, exclusionary rule

Suggested Citation

Heytens, Toby J., The Framework(s) of Legal Change (August 29, 2011). Cornell Law Review, Vol. 97, 2012. Available at SSRN: or

Toby J. Heytens (Contact Author)

University of Virginia School of Law ( email )

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Charlottesville, VA 22903
United States
202-257-2635 (Phone)

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