Completed Acts, Pending Cases, and Conflicting Presumptions: The Retroactive Application of Legislation after Bradley
![handle is hein.journals/gmaslr13 and id is 239 raw text is: 1990]
COMPLETED ACTS, PENDING CASES, AND CONFLICTING
PRESUMPTIONS: THE RETROACTIVE APPLICATION OF
LEGISLATION AFTER BRADLEY
Hilde E. Kahn*
INTRODUCTION
When a court renders a judicial decision, we expect the result to
become law, and prior conflicting decisions to be as if they had never
existed.1 We do not assume, however, that each bill Congress enacts
will have this nullifying effect on prior conflicting laws. On the con-
trary, we count on the opposite being true each time we act in reliance
on our knowledge of the present state of the law. We depend on our
ability to know what the law proscribes and what it permits when we
enter into contracts, assume obligations and responsibilities, transfer
rights, or participate in virtually any transaction within the law's reach.
Thus, some limit on the application of laws affecting the legal conse-
quences of completed acts-which this Article will refer to as the ret-
roactive application of laws-is essential to the flow of commerce and
the formation of contractual ties. Yet the question of how to limit ef-
fectively and equitably the retroactive application of legislation has
been the source of much confusion and some debate. This Article seeks
to address that confusion by reference to precedent and policy.
The Supreme Court has found little constitutional justification for
limiting Congressional authority to pass retroactive legislation. In ret-
roactivity cases involving civil statutes, the only constitutional claim
* Associate, Arnold & Porter, Washington, D.C. A.B. 1985, J.D. 1988, University of
Michigan.
' The general rule holds that judicial decisions are given retroactive effect. This general rule
is, however, subject to numerous interpretations and exceptions. See James B. Beam Distilling Co.
v. Georgia, I I l S. Ct. 2439 (1991); American Trucking Ass'n v. Smith, 110 S. Ct. 2323, 2337-39
(1990); Chevron Oil Co. v. Huson, 404 U.S. 97, 106-07 (1971). See also Annotation, United
States Supreme Court Views as to Retroactive Effect of Its Own Decisions Announcing New
Rules, 65 L. Ed. 2d 1219 (1981).
' The prohibition against ex post facto laws applies only to criminal or penal statutes. See
Hammond v. United States, 786 F.2d 8, 16 (1st Cir. 1986) (citing Galvan v. Press, 347 U.S. 522,
531 & n.4 (1954)). Similarly, the prohibition against bills of attainder is applicable only to legis-
lation that imposes punishment. See Nixon v. Administrator of Gen. Servs., 433 U.S. 425, 468
(1977), cited in United States v. Tyson, 25 Env't Rep. Cas. (BNA) 1897, 1908 (E.D. Pa. 1986)
(finding the bill of attainder clause inapplicable in CERCLA cases).](ViewImageLocal?handle=hein.journals/gmaslr13&div=17&collection=journals&method=preview&ext=.png&size=3)
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Completed Acts, Pending Cases, and Conflicting Presumptions: The Retroactive Application of Legislation after Bradley
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