Retroactive LegislationEssential to the rule of law is that the rules not be changed in the middle of the game. This principle is embodied in the notion that legislation should apply prospectively. Yet, too often, Congress has adopted unfair retroactive legislation, with the blessing of the courts. In this volume Dan Troy argues that political and procedural mechanisms are needed to protect settled, investment-backed expectations. Troy traces the history of the presumption of prospectivity and surveys the Constitution's ex post facto, bill of attainder, contracts, and takings clauses in documenting the courts' failure to guard against retroactive legislation. |
Contents
The Increased Interest in Retroactivity | 9 |
MORAL AND ECONOMIC ARGUMENTS AGAINST RETROACTIVE | 17 |
THE RISE FALL AND RESURGENCE OF ANTIPATHY | 25 |
PART | 45 |
THE BILL OF ATTAINDER CLAUSES | 56 |
THE FIFTH AMENDMENTS PROHIBITION AGAINST | 66 |
SEPARATION OF POWERS AND DUE PROCESS | 73 |
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Common terms and phrases
14 HASTINGS CONST adjudication adopt retroactive agency Amendment American Enterprise Institute applied prospectively applied retroactively Arguments against Retroactivity attainder clause bill of attainder bills of pains Blackstone Calder CERCLA Chairman and CEO cleanup clear statement rule Congress Constitution contracts clause decision due process clause economic effect enactment ex post facto example federal Fisch framers Freeman HARV hereinafter impose interpretation invalidated investment judicial Justice Kmiec & McGinnis Landgraf legal change legislature liability Madison ment Olin parties post facto clauses post facto laws presumption of prospectivity Professor prohibition protection punishment regulation regulatory relied require Resident Scholar retro retroactive application retroactive civil legislation retroactive lawmaking retroactive laws retroactive legislation retrospective laws Ricciardi roactive rule of law Scalia Slawson Spulber statute substantive due process Superfund Supp supra Supreme Court takings clause Thorpe and Bradley tion tive U.S. 3 Dall U.S. Supreme Court United vested rights violated