RETROACTIVITY - COMMON LAW

A retroactive law

a law that looks backward or contemplates the past, affecting acts or facts that existed before the law came into effect

In the common law tradition there

substantive and procedural law.

Substantive law

is law that grants rights or imposes duties/ governs the rights and obligations of

individuals

General rule is that substantive legislation

does not apply retroactively.

Procedural law

is law that is not substantive, this is how we can exercise a right.

General Rule of Procedural laws apply

both prospective and retroactively

These are the general rules for the laws unless the legislature says otherwise.

It should also be noted that there is

no interpretive law in the common law, unlike the civil law tradition.

STEPS 

Step 1: is the statute retroactive by express designation 
yes: step 3 / no: step 2
Step 2:
procedural (apply retroactivly, check step 3)
susbtantive
Step 3: Limitations
constitutional and contracts 

judicial precedent

General rule (blackstone rule)
Completely Prospective (sunburst rule)
Mixed Approach 

always start with

presumption of retroactivity

general rule (blackstone rule)

Judicial decision alway apply retroactively to all pending cases

completely prospective (sunburst rule)

A court may decide to apply a judicial decision prospectively one, i.e. to future litigants but not the litigants before the court in case announcing the new rule

Mixed Approach

A court decided to apply a judicial decision prospectively to future litigants and

to the litigants before the court but others not retroactively.

Retroactivity never applies to

closed cases

first, check

stare decisis

then presume

blackstone rule

court may limit retroactive effect

prospective approach or mixed approach

factors for limiting retroactive effect 

reliance on past decisions (hardship)
burden on administration of justice (floodgates, judical efficency)
purpose/policy of case best achived by applying it to everyone or not 

facots to consider whether retroactive or prospective application

(reliance, burden on administration of justice and fairness)
first the court looks to parties reliance on ones detriment on past decision (would reliance on old law be to ones detriment)

new precedent

always retroactive (res nova)

closed cases

statute of limitation has run
exhausted all appeal
settlement 

retroactivity never affects

closed cases (res judicata)

Constitutional Limitations

In the civil setting, no law may retroactively applied if doing so would violate the constitutional

Cannot violate these constitutional guarantees

due process clause 
contracts clause art 1 sec 10 c1

Due Process Clause

This would be a violation of the due process clause. If retroactive application would “divest or impair vested rights” then the constitution demands prospective application only

Contracts Clause, Art. 1, Sec. 10 c.1

No state shall pass any law impairing the obligations of contracts.

If retroactive application would impair contractual obligations, then the constitution demands prospective application only.