RETROACTIVITY - CIVIL 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 civil law tradition there are three kinds of statutory law

substantive
procedural
interpretative

Substantive law affects

substantive rights; it applies prospectively only.

Procedural law

is law that is not substantive, it tells us how we can exercise a right

Procedural laws apply

both prospectively and retroactively unless the legislature says otherwise

Interpretative legislation

does not create rules, but merely establishes the meaning of the law.

Interpretative legislation applies

retroactively and prospectively by default

These are all the general rules for the different types of law unless

the legislature says otherwise

policy considerations

Stability and Predictability in the Law (Mention)

STEP 1: (applies to statutes)

Is legislation retroactive by express designation?

If YES, go to Step 3 If NO, go to Step 2 (LOOKING FOR LEGISLATIVE INTENT)

STEP 2: (applies to statutes)

Characterize legislation (procedural,interpretative, substantive)

Is legislation procedural? If yes, go to Step 3

Is legislation interpretative? Apply POTS Test & St. Paul Fire’s 5-factor Test

If yes, go to Step 3– If not procedural or interpretative, then legislation is substantive. Apply

prospectively and STOP inquiry.

STEP 3: Limitations to retroactivity? (applies to statutes)

- Constitutional limitations:

- Due process (vested rights)

- Enforcement of contracts

- Separation of powers (interpretative legislation cannot adjudicate pending cases and

directly overrule cases, especially jurisprudence constante)

- Retroactivity NEVER applies to “closed cases” (res judicata)

two test for the effects of interpretative legisltion

Asks if the legislation is interpretive by nature? (GONNA DO BOTH)

1. POTS TEST

2. ST. PAULS FIRE TEST

Pots test 

PLAUSIBILITY:

OBSCURITY:

TELEOLOGY:

SCOPE:

plausability 

The new law must be a plausible interpretation (one that a court could have arrived

upon)

YES: Likely interpretive

obscurity

The old law must be obscure or ambiguous

YES: Likely interpretive

teleology

The purpose of the new law must be to explain a pre-existing rule, NOT to amend it (see preparatory works)

YES: Likely interpretive

scope

The old law and new law must be co-extensive in scope; the new law must not go beyond the controversy of the old

YES: Likely interpretive

St Pauls 5 Factor test

1. Was the law a “prompt” legislative response to a case?

2. Did the law overrule a single case (and not jurisprudence constante)?

3. Did the law overrule cases that the parties had relied on?

4. Was the law part of an “extensive” revision of the old law?

5. Did the act contain a delayed effective date?

EXAMINE FACTORS SEPARATELY. NOT ALL 5 FACTORS NEED TO BE MET.

1. Was the law a “prompt” legislative

response to a case?

YES: Likely interpretative

NO: Likely substantive

2. Did the law overrule a single case (and not jurisprudence constante)?

YES: Likely interpretive.

NO: Likely substantive

3. Did the law overrule cases that the parties had relied on?

YES: Likely substantive

NO: Likely interpretive

4. Was the law part of an “extensive” revision of the old law?

YES: Likely substantive

NO: Likely interpretive

5. Did the act contain a delayed effective date?

YES: Likely substantive

NO: Likely interpretive

5. Did the act contain a delayed effective date?

YES: Likely substantive

NO: Likely interpretive

CAUSA FINITAE

Extinguished claims.

Causa Finitae can no longer be affected by retroactive application of law.

causa finita characteristics

A. Fully litigated and all appeals exhausted or the time for appeal has run.

B. Settled by agreement of the parties

C. Prescribed (barred by the passage of time)

Case Approach

Blackstone
Complete prospective
Mixed
(same as common law- check with ppt)