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Rutgers University, Newark School of Law
Bell, Bernard W.

Retroactive Statutes and Prospective Judicial Decisions
Canon of interpretation that presumes statutes are not retroactive.
Neither state nor federal law can create crimes or increase punishments ex post facto.
If a retroactive law amounts to a taking of property it must serve a public purpose and provide compensation.
Application of presumption against retroactivity
Can be strong à impose clear statement rule
Can be applied more flexibly à prevent retroactive application if that would result in manifest injustice
Gibbons v. Gibbons (NJ, 1981) (Pg 346)
Use of clear statement rule.
When Leg has expressed contrary intent court should apply statute in effect at the time of its decision.
May be express à stated in language of statute or legislative history
May be Implied à necessary to make the statute workable or to give it the most sensible interpretation.
Even if a statute may be subject to retroactive application, a final inquiry must be made:
Will retroactive application result in manifest injustice to a party adversely affected by such an application of the statute?
See whether there was reliance and whether the consequences of this reliance are so deleterious and irrevocable that it would be unfair to apply the statute retroactively.
Here retroactive application will bring the law into harmony with the expectations of the public and no manifest justice will result.
Landgraf v. USI Film Products (1990) (Pg 356)
Try to decide whether or not to retroactively apply a portion of the Civil Rights Act of 1991 that creates a right to recover compensatory and punitive damages for certain violations of Title VII of the Civil Rights Act and an accompanying right to demand a jury trial if such damages are sought.
Use of Legislative History à President vetoed a civil rights bill with explicit retroactivity on the grounds of unfair retroactivity rules.
Congress then passed a version without explicit retroactivity and the president signed it into law.
Cannot infer oversight, seems likely that one of the compromises that made it possible to get the bill enacted was an agreement not to include any explicit retroactivity.
However the omission is not dispositive because it does not tell us where the compromise was struck.
No evidence that legislators came to a conclusion on retroactivity.
Parsimonious interpretation à argument that since one minor section says “except as otherwise specifically provided” and the things it refers to are explicitly prospective, that the phrase would have no meaning unless the rest of the statute was retroactive.
Court does not buy this à huge statute, drafters may have wanted to avoid this risk of inadvertent conflict in the statute, definitely not a clear statement of retroactivity.
Expressio Unius à argument that because Congress specifically provided for prospectivity in two places, we should infer that it intended the opposite for the remainder of the statute.
Court does not buy this à Just because you say something doesn’t mean you mean the opposite about the thing you have not addressed.
Congress may have left the retroactivity issue to be resolved by the courts since it was unable to do so itself.
Retroactivity is not favored by the law and congressional enactments/administrative rules will not be construed to have retroactive effect unless their language requires this result.
The legal effect of conduct should ordinarily be assessed under the law that existed when the conduct took place.
Constitutional prohibitions on Ex Post Facto, Impairment of Contract Obligations, Takings, Bill of Attainder, Due Process
Retroactivity provisions often serve entirely benign and legitimate purposes.
A requirement that Congress first make its intention clear helps ensure that Congress itself has determined that the benefits of retroactivity outweigh the potential for disruption or unfairness.
A statute does not operate retrospectively merely because it is applied in a case arising from conduct antendating the statute’s enactment. Rather, the court must ask whether the new provision attaches new legal consequences to events completed before its enactment.
Gives legislators a clear background rule to legislate against.
We now make it clear that Bradley did not alter the well-settled presumption against application of the class of new statutes that would have genuinely retroactive effect.
It will frequently be true that retroactive application of a new statute would vindicate its purpose more fully. That consideration, however, is not sufficient to rebut the presumption against retroactivity.
Statutes are crafted to meet many goals.
Process for looking at retroactivity
See if it takes away or impairs vested rights acquired under existing laws or creates new obligations, duties, attaches a new disability in respect to transactions or considerations already past.
If it does not do this then it does not operate retroactively.
If it does, then you need to look for a clear statement, which can be found in both the text and the legislative history.
If no clear statement exists, then it is not retroactive.
May be trying to create a stable interpretive background against which Congress can legislate. 
Part of what the Court is trying to say is that this is an important issue, not one that Congress can send to the Courts to decide and thus you need

the decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied or by deciding an issue of first impression whose resolution was not clearly foreshadowed.
Must weight the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, whether retrospective operation will further or retard its operation.
Must weight the inequity imposed by retroactive application
The Law and Economics Critique
Legislators respond to strong interest groups.
Electoral Politics tended to about atmospherics or single issues which focus on a limited number of concerns.
Interest groups are effective in the legislature (especially those with strong private economic interests).
The legislative process does not produce a purpose from which judges can reason.
Legislation was a product of bargaining.
Often about private interests.
Legislation is thus the result of offsetting pressures, not expansive public purposes.
Agenda manipulation of the legislative process.
The majoritarian winner was an accident of agenda control, not legislative purpose.
Thus judges can only defer to the text.
What Interests Influence the Legislative Process?
Only those marginal voters who do not vote on party lines.
Interest Groups
Voters lack time, money, and inclination to get involved.
The limited range of voter concerns leaves a lot of room for interest groups, who have the commitment, money and work force to influence a candidate.
Reasons for Group Formation:
A large money value per group member
Continuity of benefits over time
Caring more about avoiding the burdens than obtaining opportunities not previously enjoyed.
Economic benefits, such as low cost insurance.
A sense of professionalism (lawyers, doctors, etc.)
Other forms of solidarity (ethnic, social).
Political group formation is more likely when the benefits of political action are concentrated on a small group of people than when the benefits are distributed widely over a large group of people.
Group Leadership: