Prior to 1965, “the common law and our own decisions recognized a general rule of retroactivity for the constitutional decisions of this court, subject to [some] limited exceptions.” 1 footnoteRobinson v. Neil, 409 U.S. 505, 507 (1973). The old rule of retroactivity was derived from Blackston`s notion that “the duty of the court was not to `pronounce a new law, but to preserve and explain the old one.`” Linkletter vs. Walker, 381 U.S. 618, 622–23 (1965) (cited 1 W. Blackstone, Commentaries *69). Legal and judicial laws have consequences, at least to the extent that people have to rely on them to make decisions and shape their behavior. Therefore, the Court was persuaded to recognize that there should be a compatibility of constitutional interests, reflected in a new rule of law, with legitimate interests based on the old one.2 FootnoteLemon v. Kurtzman, 411 U.S. 192, 198–99 (1973).

However, in both criminal and civil cases, the Court`s discretion to do so has been limited by subsequent decisions. Over the past half-century, the Supreme Court has considered this temporal conundrum primarily from the perspective of the doctrine of non-retroactivity. This doctrine, also known as the “prospective reversal” of the law, contradicts the conventional conception of common law decision-making, in which court decisions affect both past events and set the law for future cases. The non-retroactive decision limits the impact of judicial changes in the law applicable to the past. Only events that date back to a new precedent are treated as governed by it. The rights of the parties to the appeal proceedings under this doctrine therefore depend on the timing and outcome of a relevant case. When is an amended German citizenship law retroactive and not forward-looking, so that it affects ongoing cases? The U.S. Supreme Court rendered Landgrave v. USI Film Products, 511 U.S. 244 (1994) and Lindh v. Murphy, 521 U.S.

320 (1997) provides the framework that lawyers should use to answer this question. First, look for a “clear directive” from Congress on the timing of a law. If one is found, it is usually controlling and the exam ends. Mathews v. Kidder, Peabody & Co., 161 F.3d 156, 161 (3d Cir. 1998) (citing Landgraf, 511 U.S. to 263). Otherwise, use the rules of legal construction to determine whether Congress intended the law to apply only to future cases.

If this intention is found, it is controlling and the investigation ends. If there is no explicit order or intention to apply a law only prospectively, pay attention to the effect that the law will have. If it were to “interfere with the rights that a party had when it acted, increase a party`s liability for past conduct, or impose new obligations with respect to transactions already completed,” then it would have “retroactive effect” and should apply only prospectively, unless Congress clearly intends to apply the law to ongoing business. Id. (citing Landgraf, 511 U.S. to 280). Conversely, if it is only a potential remedy, a change in procedural rules, or an assignment of jurisdiction, apply the rules of legal interpretation to determine whether they should be applied retroactively. It is also important that lawyers stay informed of the history of the laws in question in their cases.

This is particularly true when it comes to whether the law provides for an independent cause of action or defence, since any proposed amendment that would expressly create the ground or defence implies that the law as amended does not contain those rights. See O`Hara v. Nika Techs., Inc., 878 F.3d 470, 475 (4th Cir. 2017) (Courts are not free to read in the language of a law, which is not there, but should apply the law as written). Current or previous federal legislative proposals can be found at Congress.gov, with preliminary research available at www.congress.gov/advanced-search/legislation. The search is available by number or keyword, which gives information about the status of the invoice, full-text versions, etc. It is a good idea to regularly review the genesis of a law involved in an ongoing case, as the proposed amendments may affect the interpretation of the current version. This article promotes two fundamental contributions to retroactive science.

First, Part II calls into question the prevailing reasons for the doctrine of non-retroactivity in federal law. It identifies several different framework conditions in the case law and in the commentary.