Retroactivity and the Common Law
Auteure: Ben Juratowitch
Nombre de pages: 270This 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...
![Reports of Cases Argued and Adjudged in the Court of Appeals of Maryland and in the High Court of Chancery of Maryland, from First Harris & McHenry's Reports to First Maryland Reports [1658-1851]](https://cdn1.ebooks-gratuits.club/images/libro/reports-of-cases-argued-and-adjudged-in-the-court-of-appeals-of-maryland-and-in-the-high-court-of-chancery-of-maryland-from-first-harris-mchenry-s-reports-to-first-maryland-reports-1658-1851-id-cjg4AAAAIAAJ.webp)
