A Theory of Transition Relief

Abstract

What should government’s obligations be when it changes the law? Abrupt changes in the law can upset settled expectations and undermine individual autonomy, while too much rigidity in the law can prevent government from addressing policy challenges and run counter to the value of democratic self-government. One way in which this dilemma plays out is in the context of transition relief: what is owed to those who lose out when the law changes. This issue arises in diverse areas of law, from abortion and immigration to the welfare state to land use and regulation of business. Losers might be owed monetary compensation, phase-in periods for new legal rules, explanations of why the change is warranted, or nothing at all. While scholars of law and economics have analyzed transition relief in detail, the topic has largely been neglected by normative legal theorists. 

This Article provides a normative theory of transition relief that explains what government should owe, to whom, and when. We begin with a taxonomy of legal changes—those that strip away tainted entitlements, those that undercut fundamental rights, and those that make more “ordinary” sorts of changes. Different transition relief regimes are appropriate depending on the type of law change at issue: tainted entitlements should be removable without any transition relief, fundamental rights should typically not be eroded even with transition relief, and ordinary legal changes should only require transition relief when they implicate core liberal values, most notably individual autonomy. We then address how best to institutionalize a regime of transition relief, whether government can disclaim individual reliance interests, and whether transition relief is necessarily biased against legal change. In building this theory, we draw examples from across public and private law topics, including recent controversial Supreme Court decisions. Our analysis validates existing jurisprudence in many areas while pointing toward some (most notably some regulation of business) where existing law provides too much by way of transition relief as well as some others (most notably cutbacks to social welfare programs) where existing law provides too little.

Keywords: Legal theory, Public law, Private law, Transition relief, Property law, Fundamental rights