Finality Distinction in Supreme Court Retroactivity Analysis: An Inadequate Surrogate for Modification of the Scope of Federal Habeas Corpus 79 Northwestern University Law Review 1984-1985

79 Nw. U. L. Rev. 1062 (1984-1985)
Finality Distinction in Supreme Court Retroactivity Analysis: An Inadequate Surrogate for Modification of the Scope of Federal Habeas Corpus

handle is hein.journals/illlr79 and id is 1072 raw text is: Copyright 1985 by Northwestern University School of Law Printed in U.S.A.
Northwestern University Law Review VoL 79, Nos. 5 & 6
THE FINALITY DISTINCTION IN SUPREME
COURT RETROACTIVITY ANALYSIS:
AN INADEQUATE SURROGATE FOR
MODIFICATION OF THE SCOPE
OF FEDERAL HABEAS CORPUS
James B. Haddad*
I. INTRODUCTION
Twenty years ago Linkletter v. Walker1 extended the technique of
nonretroactive decisionmaking to the field of constitutional criminal pro-
cedure. Two decades and dozens of Supreme Court decisions later,2
commentators and the Court itself agree that doctrinal confusion and
inconsistency are the hallmark of nonretroactivity jurisprudence.3 One
of the Court's latest decisions, Solem v. Stumes,4 has added to the puz-
zle by expressly abandoning the primary rationale for prospective over-
ruling: a party's justifiable reliance upon a decision that later was
squarely overruled by the court that earlier had adopted it.5 In Stumes,
the litigant premised his habeas corpus claim on the retroactivity of a
Supreme Court decision, Edwards v. Arizona,6 that had overruled no
prior Supreme Court holding, but that merely had resolved an open ques-
* Professor of Law, Northwestern University. B.A., University of Notre Dame (1964); J.D.,
Northwestern University (1967); LL.M., Northwestern University (1969).
1 381 U.S. 618 (1965).
2 For summaries of Supreme Court retroactivity decisions, see Beytagh, Ten Years of Non-
Retroactivity: A Critique and a Proposal, 61 VA. L. REv. 1557, 1558-96 (1975); Corr, Retroactivity:
A Study in Supreme Court Doctrine 'As Applied, 61 N.C.L. REv. 745,748-63(1983). Corr's article
also includes a valuable summary of recent lower court retroactivity decisions.
3 Corr, supra note 2, at 761; Beytagh, supra note 2, at 1604-05; Comment, United States v.
Johnson: Reformulating the Retroactivity Doctrine, 69 CORNELL L. REv. 166 (1983). After tracing
its own decisions, the Court in United States v. Johnson, 457 U.S. 537, 542-48 (1982), called for a
rethinking of retroactivity doctrine. As retired Justice Walter Schaefer noted, however, one week
before Johnson, the Court in Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50
(1982), applied a different retroactivity analysis from the analysis used in Johnson. The Court, how-
ever, did not mention Northern Pipeline in its Johnson opinion. See Schaefer, Prospective Rulings:
Two Perspectives, 1982 Sup. Cr. REv. 1. See also infra note 49. See infra text accompanying notes
109-13 for a discussion of a recent retreat from a declaration made in a 1984 retroactivity opinion.
4 465 U.S. 638 (1984).
5 See infra notes 20-24 and accompanying text; infra text accompanying note 39; infra notes 69-
70 and accompanying text.
6 451 U.S. 477 (1981).

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