Faculty Author Type

Current Faculty [Samuel Beswick]

Published In

Yale Law Journal

Document Type


Publication Date



retrospective, retrospectivity, prospective overruling, jurisprudence, federal courts, legal theory, legal philosophy, remedies, restitution, rights of action, limitations, repose, equity, new equity, laches, discoverability, civil recourse, sunburst, harper, declaratory theory of adjudication


This Article defends the retroactive nature of judicial lawmaking. Recent Supreme Court judgments have reignited debate on the retroactivity of novel precedent. When a court announces a new rule, does it apply only to future cases or also to disputes arising in the past? This Article shows that the doctrine of non-retroactive adjudication offers no adequate answer. In attempting to articulate a law of non-retroactivity, the Supreme Court has cycled through five flawed frame-works. It has variously characterized adjudicative non-retroactivity as (1) a problem of legal philosophy; (2) a discretionary exercise for balancing competing right and reliance interests; (3) a matter of choice of law; (4) a remedial issue; and (5) a contingency of last resort. This Article rejects these paradigms and instead offers an alternative framework grounded in conventional common-law reasoning: that judicial precedent is inherently retroactive. The “equitable considerations” animating this body of law can best be fulfilled by judicial abandonment of non-retroactivity doctrine. Instead, courts should respond to “new” law by turning to a long-held value in our legal system: that equity aids the vigilant, not those who sleep on their rights.



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