This Article defends the retroactive nature of judicial law-making. Recent Supreme Court judgments have reignited debate on the retroactivity of novel precedent. When a court announces a new rule, should 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 frameworks. 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 courts abandoning non-retroactivity doctrine. Instead, they 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.
Beswick, Samuel, Retroactive Adjudication (May 23, 2019). Yale Law Journal, volume 130, forthcoming, 2020.