Prospective Overruling Unravelled

Civil Justice Quarterly, vol. 41(1), pp. 29-53, 2022

25 Pages Posted: 11 Nov 2021 Last revised: 5 Jan 2022

See all articles by Samuel Beswick

Samuel Beswick

Peter A. Allard School of Law, University of British Columbia

Date Written: October 12, 2021

Abstract

Judges have a dual role: they decide cases and they determine the law. These functions are conventionally understood to be intertwined: adjudication leads to case law, and disputes over judge-made laws lead to adjudication. Because judgments involve the resolution of past disputes, judge-made law is retrospective. The retrospective nature of judicial law-making can seem to work an injustice in hard cases. It appears unfair and inefficient for novel judicial decisions to apply to conduct occurring prior to the date judgment is handed down. A proposed solution is to separate the law-making and adjudicatory functions of courts. This is the technique of “prospective overruling”. Utilising this technique, courts seek to change the law prospectively for future cases, while continuing to decide past disputes under the “old” legal rule that was thought to apply at the time those disputes arose. This article challenges the claims that the exceptional juridical technique of prospective overruling is justified by values of stability, reliance, efficiency, dignity, and equality. These values, when properly understood, actually support rather than undermine the retrospectivity of judge-made law. Prospective overruling is an injudicious instrument.

NOTE: This material was first published by Thomson Reuters, trading as Sweet & Maxwell, 5 Canada Square, Canary Wharf, London, E14 5AQ, in the Civil Justice Quarterly as "Prospective Overruling Unravelled" (2022) 41 CJQ 29 and is reproduced by agreement with the publishers.

Keywords: prospective invalidation, prospective quashing, non-retrospective, retroactive, judicial method, stare decisis, policy, Independent Review of Administrative Law, IRAL, mistake of law, declaratory theory, limitations, suspended declaration, judicial dialogue, judicial activism, judicial review

Suggested Citation

Beswick, Samuel, Prospective Overruling Unravelled (October 12, 2021). Civil Justice Quarterly, vol. 41(1), pp. 29-53, 2022, Available at SSRN: https://ssrn.com/abstract=3820990

Samuel Beswick (Contact Author)

Peter A. Allard School of Law, University of British Columbia ( email )

1822 East Mall
Vancouver, British Columbia V6T 1Z1
Canada

HOME PAGE: http://allard.ubc.ca/about-us/our-people/samuel-beswick

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