Newsgroups: bit.listserv.words-l
Date:         Tue, 29 Sep 1992 03:54:14 EST
From:         Entropy Warrior <AUSBROOK@UCS.INDIANA.EDU>
Subject:      What I do all day . . . (errrp?!!?)

                           Memorandum



To:
From: Michael K. Ausbrook
Re: The presumption against the retroactivity of legislation

September 21, 1992



Issue Presented:    Why has the common law presumption against
                    the retroactivity been abandoned?



     It is, perhaps, more proper to say that courts have not so
much abandoned the presumption against the retroactivity of
legislation as that they more often and more easily, it would
seem, find reasons to overcome the presumption.  The classical
common law position is that of Justice Scalia:
     "The principle that the legal effect of the conduct
     should ordinarily be assessed under the law that
     existed when the conduct took place has timeless and
     universal human appeal. . . . The presumption of non-
     retroactivity, in short, gives effect to enduring
     notions of what is fair, and thus accords with what
     legislators almost always intended."

Kaiser Aluminum & Chemical Corp. v. Bonjorno, 494 U.S. 827, 854-
55 (Scalia, J., concurring).  But the classical position
contains, in part, its own explanation of why it appears to have
been abandoned:  if fairness is the issue, if fairness is what
legislators almost always intend, then rather than presumptively
give effect to "enduring notions of what is fair" by employing a
rule of statutory construction, courts increasingly try to give
effect to what is in fact fair in each case as it comes before
them.
     Judicial inquiry into specific fairness takes a number of
different forms.  It may be an inquiry into whether a manifest
injustice will result from retroactive of a statute, e.g. Gibbons
v. Gibbons, 432 A.2d 80 (N.J. 1981) (applying retroactively a
statute removing non-interspousal gifts and bequests from the
reach of divorce settlements because although spouse's alimony
request had relied on the previous law, New Jersey law permits
modification of alimony requests and awards).  It may be an
inquiry into mere rationality, e.g., Usery v. Turner Elkhorn
Mining Co., 428 U.S. 1 (1976) (coal mine operators liable for
disabilities of employees who had left employment prior to the
date the law creating liability became effective because such
retroactive application was a rational method of cost-spreading).
And there is a broad category of cases involving fairness as
notice, e.g., United States v. Darusmont, 449 U.S. 292 (1981)
(tax law may be retroactive at least to date of first
introduction in Congress because petitioner had notice that
Congress was contemplating a change in the law), Veix v. Sixth
Ward Building & Loan Ass'n, 310 U.S. 32 (1940) (retroactive
legislation impairing shareholder's right to get money out of
building and loan association does not violate Impairment of
Contracts clause of Constitution because withdrawal was already
subject to statutory regulation at the time shares were
purchased).
     In Gibbons, reliance on the law did not bind a party
irremediably to its position once taken.  Thus, there was no true
reliance.  In Usery, the Court appears to assume that coal mine
operators may almost perfectly pass on the increased costs of
liability retroactively created, else it might not be a rational
means of cost-spreading.  And if it is not rational, but
arbitrary as the coal mine operators argued, then retroactive
liability might result in manifest injustice.
     Darusmont and Veix present the most troubling strategies for
overcoming the common law presumption against retroactivity.  In
these cases the Court makes inquiries into fairness as, and
proceeds to find notice in some odd places--at least from a
common law perspective.  In Darusmont, the Court says, in effect,
you have notice as soon as Congress puts on its thinking cap.  In
Veix, a much earlier case, the Court says, in effect, that once
something is subject to statutory regulation, you have notice
that you may be subject to further regulation at any time, even
retroactively.
     The strategies of Darusmont and Veix are troubling because
they at once are evidence of and explain the desuetude into which
the common law presumption against retroactive application of
legislation has fallen.  These cases seem to say to us that
underlying the common law presumption, there was a more
fundamental fact that the common law changed relatively slowly.
That fact, in an age in which legislatures busy themselves--
measured in tons of paper--solving the world's problems, has
changed.  If law changes relatively quickly, then in some
contexts courts find fairness, the value expressly protected  by
both the common law rule-based approach and the manifest
injustice case-by-case approach, not in anything legislators
intended, but in what legislators have done in the past, what
they are doing now, how they do what they do, and how often they
do it.  So, it would seem, we are all on notice that there is no
notice of what the law is beyond an awareness that we live in an
age of legislation, to which age courts increasingly find,
however benightedly, that a presumption against retroactive
application of statutes is ill-suited.


-Mka
And yes, Tushar, it *is* mine.  Oh is it ever.
8:-0
Comments: Gated by NETNEWS@AUVM.AMERICAN.EDU