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This book analyses the common law’s approach to retroactivity. The central claim is that when a court considers whether to develop or change a common law rule the retroactive effect of doing so should explicitly be considered and, informed by the common law’s approach to statutory construction, presumptively be resisted. As a platform for this claim a definition of ‘retroactivity’ is established and a review of the history of retroactivity in the common law is provided. It is then argued that certainty, particularly in the form of an ability to rely on the law, and a conception of negative liberty, constitute rationales for a general presumption against retroactivity at a level of abstraction applicable both to the construction of statutes and to developing or changing common law rules. The presumption against retroactivity in the construction of statutes is analysed, and one conclusion reached is that the presumption is a principle of the common law independent of legislative intent. Across private, public and criminal law, the retroactive effect of judicial decisions that develop or change common law rules is then considered in detail. ‘Prospective overruling’ is examined as a potential means to control the retroactive effect of some judicial decisions, but it is argued that prospective overruling should be regarded as constitutionally impermissible. The book is primarily concerned with English and Australian law, although cases from other common law jurisdictions, particularly Canada and New Zealand, are also discussed. The conclusion is that in statutory construction and the adjudication of common law rules there should be a consistently strong presumption against retroactivity, motivated by the common law’s concern for certainty and liberty, and defeasible only to strong reasons. ‘Ben Juratowitch not only gives an account of the operation of the presumption, but also teases out the policies which underlie the different rules. This is particularly welcome. Lawyers and judges often seem less than sure-footed when confronted by questions in this field. By giving us an insight into the policies, the author provides a basis for more satisfactory decision-making in the future. …The author not only discusses the recent cases but examines the question in the light of authority in other Commonwealth jurisdictions and with due regard to the more theoretical literature. This is a valuable contribution to what is an important current debate in the law. Happily, Ben Juratowitch has succeeded in making his study not only useful, but interesting and enjoyable.’ From the Foreword by Lord Rodger of Earlsferry

We consider the pricing problem faced by a monopolist who sells a product to a population of consumers over a finite time horizon. Customers’ types differ along two dimensions: (i) their willingness-to-pay for the product and (ii) their arrival time during the selling season. We assume that the seller knows only the support of the customers’ valuations and do not make any other distributional assumptions about customers’ willingness-to-pay or arrival times. We consider a robust formulation of the seller’s pricing problem that is based on the minimization of her worst-case regret. We consider two distinct cases of customers’ purchasing behavior: myopic and strategic customers. For both of these cases, we characterize optimal price paths. For myopic customers, the regret is determined by the price at a critical time. Depending on the problem parameters, this critical time will be either the end of the selling season or it will be a time that equalizes the worst-case regret generated by undercharging customers and the worst-case regret generated by customers waiting for the price to fall. The optimal pricing strategy is not unique except at the critical time. For strategic consumers, we develop a robust mechanism design approach to compute an optimal policy. Depending on the problem parameters, the optimal policy might lead some consumers to wait until the end of the selling season and might price others out of the market. Under strategic customers, the optimal price equalizes the regrets generated by different customer types that arrive at the beginning of the selling season. We show that a seller that does not know if the customers are myopic should price as if they are strategic. We also show there is no benefit under myopic consumers to having a selling season longer than a certain uniform bound, but that the same is not true with strategic consumers.

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 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 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.

Courts sometimes do what they claim they cannot. When a court severs a provision from a statute, is it rewriting the statute to remedy a constitutional defect, or interpreting what the statute has always meant in light of the Constitution? Recently, in Lindenbaum v. Realgy, LLC, the Sixth Circuit held that the severance had retroactive effect because a severing court merely recognizes what the law has always been, as constrained by the Constitution. Though the Lindenbaum court narrowly reached the doctrinally correct result in this case, it did so based on an idealized model of severance doctrine that is conceptually inapplicable to equal-treatment cases such as this one. In Lindenbaum, the Sixth Circuit reached the right result, but for the wrong reason. According to the recognition model, severance is just recognition of action taken by the Constitution, not by the court: repugnant provisions are void before the case is briefed.

The United Kingdom's critique of the International Court of Justice's Chagos Advisory Opinion has focused upon the Court's approach to the norms of international law applicable at the time of the British Indian Ocean Territory's ('BIOT') creation, which involved the excision of territories from two of its then colonies, Mauritius and the Seychelles. The decision turned on whether norms of self-determination relating to the territorial integrity of colonised territories had crystallised as customary international law before the BIOT was created in November 1965, a proposition the UK continues to publicly reject. This is a dispute about temporality and the development of customary international law. This article interrogates the UK's claims by reviewing the holdings of the UK National Archives, which detail how Ministers, legal advisers and officials understood the norms of self-determination applicable to the BIOT. They demonstrate that the UK government was acutely aware of the implications of these rules for the new colony's creation and sought to distract United Nations organs from the relevant legal questions. They therefore provide a window into how certain voices have long been prioritised over others in the processes by which customary international law develops.

Responding to William Baude & Eugene Volokh, 'The Supreme Court, 2017 Term — Comment: Compelled Subsidies and the First Amendment', 132 HARV. L. REV. 171 (2018). Here is a short summary of the right-to-work movement’s legal strategy in the aftermath of its victory in 'Janus v. AFSCME': If you can’t kick a man when he’s down, when can you kick him? For within weeks of 'Janus’s' pronouncement that the First Amendment forbids public sector unions to collect agency fees from objecting employees, right-to-work groups filed a flood of class action lawsuits seeking the refund of millions of dollars’ worth of fees that were paid in the years before 'Janus' was even decided, when such fees were indisputably lawful. Commentators have observed that these retroactive refund suits threaten to bankrupt unions around the nation.

The Supreme Court's habeas corpus retroactivity jurisprudence has never been a model of clarity or fairness. Ordinarily, if a case is on direct review, a court is bound to apply constitutional law as it currently stands, not the law as it stood at the time of trial, conviction, or sentencing. This rule derives from 'Griffith v. Kentucky', in which the Supreme Court held that the Constitution requires that all new constitutional rules apply to cases on direct review. However, in 'Teague v. Lane', the Court distinguished direct and collateral review, holding that new constitutional rules do not apply to cases on collateral review unless they fall within one of two exceptions. The Court has justified this approach to retroactivity by emphasizing 'comity', respect for the judicial process of the state courts, and 'finality', the closure a judgment of conviction is supposed to bring. This retroactivity test is not only complex but also produces disparate impacts on similarly situated individuals. For this reason and many others, legal scholars have long criticized the 'Teague' doctrine; as Justice Gorsuch recently acknowledged, the 'Teague' doctrine has been \"mystifying... from its inception.\" And in May 2021, the Court walked back the thirtyyear- old doctrine in 'Edwards v. Vannoy', recognizing that one of the two 'Teague' exceptions is \"moribund\" and \"retain[s] no vitality.\" Though scholars have previously criticized the 'Teague' doctrine and offered alternatives, this Note is the first to provide a substantial critique of the 'Teague' doctrine's underlying assumptions regarding finality and comity interests. After comparing related finality and comity doctrines, this Note argues that the current 'Teague' doctrine overvalues both interests, and a reimagining of the retroactivity framework should begin with reconsidering the foundational roles of those interests. This Note proposes one such framework-one that is more generous about granting the retroactivity remedy for violations of constitutional rights. Under this proposed framework, new constitutional rules should always apply retroactively on state collateral review and federal habeas review of federal convictions. The proposed framework also revises the 'Teague' new-rule doctrine and suggests that a state's discrimination against a federal right vitiates its comity interest, weighing in favor of the retroactivity remedy. This Note concludes with a discussion of 'Edwards v. Vannoy', suggesting that the case highlights the flaws of the 'Teague' doctrine and the need to rethink the foundations of retroactivity and to reground the doctrine in first principles.