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Prospective Revision of Precedent

Published online by Cambridge University Press:  12 February 2016

G. Tedeschi
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Extract

Innovations in case law have traditionally always had retroactive effect also, first on the case in question, and therefore on past conduct, and then, to the extent that authority attaches to the precedent or it is at least followed in practice, on other cases subsequently heard, although the conduct involved here also preceded the declaration of the new rule. Justice Holmes, in a dissenting opinion of 1910, wrote: “I know of no authority in this case to say that in general state decisions shall make law only for the future. Judicial decisions have had retrospective operation for near a thousand years”.

It is fairly certain that Justice Holmes had the Common Law world in mind, but the picture would not be different if we looked at the situation elsewhere. In France as well, for instance, the rétroactivité des nouvelles jurisprudences has been considered as une infirmité du système jurisprudentiel.

Nevertheless, it is a fact that the situation excites some consternation among lawyers and the public, which is particularly strong in those matters where retroactivity is singularly severe in its effects and the legislature normally refrains from imposing it, although not forbidden to do so under constitutional principles (laws being interpreted and applied non-retroactively in the absence of any express provision in this regard) and in those instances where there was reliance, explicit or presumed, by the parties on the rule which is subsequently abandoned.

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Israel Law Review , Volume 8 , Issue 2 , April 1973 , pp. 173 - 196
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Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1973

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References

1 Kuhn v. Fairmont Coal Co. 215 US 349, 372 (1910).

2 Roubier, , Le droit transitoire (Conflits des lois dans le temps) (2nd ed., 1960) no. 56, p. 248.Google ScholarCf. Gény, , Méthode d'interprétation (1899) 430et seq.Google Scholar; Lambert, , Etudes de droit commun législatif, vol. I, p. 20.Google Scholar

3 On the consideration whether the innovation will achieve its deserved result without retroactive application (when, for instance, deterrence is the main object), see inter alios Shapiro, S.R., “Prospective or Retroactive Operation of Overruling Decision” 10 A.L.R. 3rd, 1371.Google ScholarPubMed

4 These matters are primarily title to property, questions of personal status involving the family and commercial transactions. See the analysis of the cases in C.M.D., “Limited Retroactivity of Overruling Decisions” (1938) 25 Va.L.R. 210Google Scholar; Note, (1947) 60 Harv. L. R. 437; Note (1965) 51 Va. L. R. 201. There is also agreement that an adverse change with regard to criminal responsibility should not be applied retrospectively. Taxation matters have in this regard attracted special attention in W. Germany. See Grunsky, , Grenzen der Rückwirkung bei einer Aenderung der Rechtsprechung (Karlsruhe, 1970) 6.Google Scholar (Abridged English translation: “Limitations to Retroaction in Cases of Amendments to Precedent” 3 Law and State (Tübingen, 1971) 73). In America on the other hand the trend with regard to taxation matters is not uniform: Note (1947) 60 Harv. L. R. 437, 444 et seq.; Shapiro, op. cit., 1437 et seq. Compare the list of matters given in the Practice Statement (Judicial Precedent) of the House of Lords in 1966 (Hansard Report 677 (July 26, 1966); [1966] 1 Weekly L.R. 1234 (H.L.)): “[their Lordships] will bear in mind the danger of disturbing retrospectively the basis on which contracts, settlements of property and fiscal arrangements have been entered into and also the special need for certainty as to the criminal law”. In American law the problem of non-retroactivity arises also in connection with the abolition of immunity in torts (in order to enable the person responsible to insure himself).

5 As to whether the question of “reliance” is to be dealt with on the basis of proof or assumption, see inter alia Note (1947) 60 Harv. L.R. 437, 440; C.M.D., op. cit., pp. 213 et seq.; Note (1961) 71 Yale L.J. 907, 945–948; Note (1966) 51 Minn. L. R. 79, 80, 82. Cf. Grunsky, op. cit., pp. 26, 27 (English abridgement, pp. 88–89).

6 Friedmann, W., “Limits of Judicial Lawmaking and Prospective Overruling” (1966) 29 Mod. L. R. 593.CrossRefGoogle Scholar

7 Salmond, , Jurisprudence (11th ed., 1957) 148.Google ScholarCf. Cross, , Precedent in English Law (2nd ed., 1968) 29Google Scholar: “retrospective judicial legislation must surely be a necessary evil”.

8 Salmond, , Jurisprudence (12th ed., 1966) 127–28.Google Scholar It may be observed that G. Williams, who edited the llth edition of Salmond, addressed himself later to the prospective innovations in American case law in his treatise, The Criminal Law (2nd ed., 1961) para. 106.

9 Diplock, , The Courts as Legislators (1965) 17.Google ScholarCf. Dias, , “Precedents in the House of Lords” (1955) Camb. L.J. 153, 155.Google Scholar And see infra text and n. 26.

10 Leach, , “Revisionism in the House of Lords” (1967) 80 Harv. L. R. 797, 802.CrossRefGoogle Scholar

11 Cf. Grunsky, op. cit.; Knittel, , Zum Problem der Rückwirkung bei einer Aenderung der Rechtsprechung—Untersuchung zum deutschen und US-amerikanischen Recht (1965)Google Scholar; Kisker, , Die Rückwirkung von Gesetzen (1963) 120–134Google Scholar; Friedrich, , “Die Rückwirkung im Steuerrecht” (1951) Stu. W. Sp. 81, 116Google Scholar; Vogel, , “Zur Frage der Rückwirkung von Steuergesetzen” (1960) NJW 1182Google Scholar; Weisensee, , “Rückwirkende Anwendung von Entscheidungen des Bundesfinanzhof?” (1961) Stu. W. Sp. 17Google Scholar; Müller, , “Zur Bindung des Bundesfinanzhofs an seine Rechtsprechung” (1961) Stu. W. Sp. 683Google Scholar; Zweigert, /Kötz, , “Die Bedeutung des Rückwirkungsverbot für die Auslegung von Steuergesetzen” (1969) BB 453.Google Scholar

12 Op. cit., supra n. 2, no. 7, p. 24 et seq.

13 Sec. 33 reads as follows: a) A court shall be guided by a precedent established by a higher court, b) A precedent established by the Supreme Court binds every Court except the Supreme Court.

14 Cf., e.g., Levy, B.H., “Realist Jurisprudence and Prospective Overruling” (1960) 109 U.Pa.L.R. 1Google Scholar; Carpenter, , “Court Decisions and Common Law” (1917) 17 Col. L. R. 593, 604Google Scholar; Note (1939) 24 Corn. L. R. 611, 612.

15 Cf. e.g., Diplock, loc. cit.; Dias, loc. cit.; A., et Tunc, S., Le droit des Etats-Unis d'Amérique, Sources et Techniques (Paris, 1955) 220.Google Scholar

16 Bigiavi, W., Appunti sul diritto giudiziario, (Urbino, 1933)Google Scholar (Reprint from (1933) VII Studi Urbinati) 89 et passim.

17 See in particular Levy, op. cit., at p. 3 and Carpenter, op. cit. at p. 604, as well as the observations of the Hon. George F. Campbell who was the first to formulate this new trend in his address of 1917: see Rep. S. C. Bar Ass'n, 1917, p. 17, cited also in Freeman, R.H., “The Protection Afforded Against the Retroactive Operation of Overruling Decisions” (1918) 18 Col. L. R. 230, 248.CrossRefGoogle Scholar

18 We have dealt with a number of these examples in Studies in Israel Law (Jerusalem, 1960) 116 et seq.

19 Kocourek, , “Retrospective Decisions and Stare Decisis: a Proposal” (1931) 17 A.B.A.J. 180.Google Scholar

20 Kocourek, and Koven, , “Renovation of the Common Law through Stare Decisis” (1935) 29 Ill.L.R. 971.Google Scholar

21 See as against this Lupoi, , Valore dichiarativo della sentenza ed irretroattività del mutamento giurisprudenziale nel diritto statunitense (estratto da Quaderni del “Foro Italiano” Roma, 1969) 4–5Google Scholar, who deems such a declaration as true overruling to which lower courts would be subject.

22 Cf. on this point Mishkin, and Morris, , On Law in Courts (1965) 308.Google Scholar

23 See e.g. in American case law what was said in Meyers v. Drozda 34 U.S.L. Week 2594 (Neb. Sup. Ct. April 22, 1966): “the new rule applies to all causes of action arising after April 22, 1966, the filing date of this opinion. In respect to other causes of action the new rule applies if, but only if, the nonprofit charitable hospital was insured against liability on the claim of the patient, and then only to the extent of the maximum applicable amount of its insurance coverage”.

24 Trummer, , Die Gewohnheit als kirchliche Rechtsquelle, Ein Beitrag zur Erklärung des Codex Juris Canonici (Wien, 1932) 56et seq.Google Scholar; Bigiavi, op. cit., pp. 88–89.

25 For Germany, see Grunsky, op. cit., p. 24 et seq. (English abridgement, p. 87 et seq.)

26 [1966] A.C. 465.

27 [1951] 2 K.B. 164.

28 W. Friedman, op. cit., p. 605.

29 In theory the determining date—the date when judgment was issued or some other date mentioned therein—can relate to the entry of the summons. Roubier thus understands the American decisions and he observes that in this way the new rule is retroactive as regards cases occurring before the judgment, even if the summons was entered thereafter: see Roubier, op. cit., p. 29. It is not the habit of American courts, however, to relate to the entry of the summons but to the occurrence of the case.

30 Mishkin, , “Foreword, The Supreme Court 1964 Term” (1965) 79 Harv. L.R. 56, 65.CrossRefGoogle Scholar

31 Cf. ibid.; Note (1947) 51 Va. L. R. 201, 250.

32 Cardozo, , Nature of Judicial Process (Yale University Press, 1925) 148.Google ScholarCf. Note (1947) Va. L.R. 201, 250.

33 Incidentally, I may be permitted a reply to Dr.Witkon, (“Some Reflections on Judicial Law-making” (1967) 2 Is. L. R. 475, 479Google Scholar) who writes that I “criticized the court for expressing disapproval of Lamm J.'s refusal in the District Court to follow a previous decision of the Supreme Court which, in Professor Tedeschi's view, merely contained an obiter dictum and was therefore not binding on the District Court”. In my note on the case in question (in (1964) 20 HaPraklit 99) I did not intend to express such a view as being my own but to refer to the view of Witkon J. himself which I cited verbatim: “The course which the judge took was not correct even on the assumption that the question did not arise in the first case except by way of an example with which the judge sought to buttress his opinion”. See Israel Permanent Investment Co. v. Silver (1963) 17 P.D. 1655, 1660. Dr. Witkon adds the following in his aforementioned article: “As regards obiter dicta, I would suggest that they are of two different kinds, those which are gratuitously thrown in and have, at best, persuasive influence, and those which are stated as a necessary corrolary [scil., corollary] to the ratio decidendi of the case. Disregard of the latter kind of obiter dictum is tantamount to a denial of the precedent itself”. One may observe as to this distinction between two kinds of obiter dicta, of which there is no suggestion in the judgment, that what is a necessary consequence of the ratio, whether or not stated in the judgment, must in logic be considered as belonging to the ratio itself. Against this conclusion one may cite from English law the well-known remarks of Lord Halsbury: “I entirely deny that it [scil., a case] can be quoted for a proposition that may seem to flow logically from it” (Quinn v. heath [1901] A.C. 495, 506)—provided we do not understand these remarks as Cross does in his Precedent in English Law (2nd ed., 1968) 189 et seq. In any case, according to the first solution (the consequence of the ratio regarded as part of the ratio itself) one cannot raise the question which Dr. Witkon seeks to do. And according to the second solution, the conclusion will be that the corollary is not binding. The fact of the matter is that either the corollary is binding as ratio decidendi or it is not binding at all. Why therefore term the corollary expressed in the decision—as Dr. Witkon does—obiter dictum rather than an interpretation—correct on his assumption—of the ratio decidendi or of some aspect thereof? And if what was involved in the above-mentioned judgment was a necessary corollary of the ratio decidendi, why did Witkon J. say that “the fidelity required of a judge to a rule decided by a superior court (sec. 33 of the Courts Law, 1957 [supra n. 13]) is not a formal matter. Its source lies in public order and the courtesy which one court expects of another as well as in the will to avoid barren deliberations”, as if sec. 33 secs precedent even beyond the ratio decidendi?

34 Even Reem v. Minister of Finance (1954) 8 P.D. 494, which dealt with the question of “self-deference” before the enactment of the Courts Law, 1957, excluded a precedent per incuriam therefrom—but the question was not raised whether in the opinion of the judges such erroneous precedents could bind inferior courts.

35 Grunsky, op cit., p. 10 (English abridgement, p. 78). Cf. Rogers, C.S., “Perspective on Prospective Overruling” (Winter, 1968) 36 U.M.K.C.L. Rev., 35, 73Google Scholar: “[…] it is more just for the courts to correct their own errors, while not retroactively penalizing those who had relied upon the erroneous decision, than it is either to leave the error unconnected or to apply the overruling decisions retroactively […]”

36 Cf., e.g., Note (1961) 71 Yale L.J. 907, 925, 926, 928.

37 It is to be noted that American case law, even when it normally followed the path of retroactivity, recognized an exception with regard to the interpretation of statutory law relating to contract. It was thought that the construction becomes as much a part of the statute as the text itself, and a change of decision is to all intents and purposes the same in its effect on contracts as an amendment of the law by means of a legislative enactment. See, e.g., von Moschzisker, , “Stare Decisis in Courts of Last Resort” (1924) 37 Harv. L. R. 409, 422–24CrossRefGoogle Scholar; C.M.D., op. cit., 212.

38 Cardozo, N.Y. State Bar Address (1932) N.Y.S.B.A. Report 263, 297.

39 Kocourek, in (1931) 17 A.B.A.J., cit.

40 Kocourek and Koven, op. cit., 971, 999.

41 von Moschzisker, op. cit.

42 Molitor v. Kaneland Community Unit School District 18 Ill. 2d 11, 163 N.E. 2d 89 (1959).

43 Mishkin and Morris, op. cit., p. 309 et seq. See also Mishkin (1965) 79 Harv. L.R. 56 et seq.; Note (1965) 51 Va. L. R. 201, 216–17 and the further references there.

44 Salmond, , Jurisprudence (11th. ed.) 137.Google ScholarCf. Cross, Precedent in English Law (1961) 246 et seq.

45 Ibid., p. 247.

46 “This announcement is not intended to affect the use of precedent elsewhere than in this House”.

47 See the Law Society's letter to the London Times of July 27, 1966.

48 Dias, loc. cit.; Goodhart, , “The Abolition of Absolute Precedents in the House of Lords” (1966) 82 L.Q.R. 441, 443.Google Scholar

49 (1861) 9 H. L. Cas. 274, 338–39.

50 (1954) 8 P.D. 494.

51 Yadin, U., “Truth v. Stability” (1972) 28 HaPraklit 152, 154.Google Scholar

52 Davis v. G.M.A.C. 176 Neb. 865, 871, 127 N.W. 2d 907, 912 (1964). Rogers (op. cit. supra n. 35 at p. 62) is critical of these considerations of the court.

53 This conclusion under current law is not to be regretted, and accordingly there is no occasion for initiating a legislative innovation permitting “limited retroactivity”. This affects the principle of equality in discriminating among people who acted before the judgment: the litigants in the particular case are discriminated (favourably as “chance beneficiaries” and unfavourably as “victims” as the case may be) as against all other potential litigants in connection with “old” cases. Those who favour this technique regard the discrimination as the necessary price to be paid for being able to make the desired change in the case law, since the alternative technique (“prophecy” or “disjunctive declaration”) discourages the initiative of a litigant who cannot hope to benefit from a change of trend brought about through himself. Nevertheless this criticism is answered by the fact that (a) the institutional litigant will always be interested in a change in case law as regards the future; (b) sometimes a potential litigant may hope that the court will apply the new rule retroactively for him by reason of the special circumstances; (c) many occasions present themselves in which the court may in its judgments hint that a particular rule, affecting only incidentally a question then before it, is proper to be changed in the future. See Note (1961) 71 Yale L. J. 907, 945; Kocourek and Koven, op. cit., p. 945; Note (1947) 60 Harv.L.R. 437, 440. Cf. also Black J. in Williams case, 364 Mich. Ill, N.W. 2d 1, 16 (1961).

54 See as against this the suggestion made by Dias, loc. cit., regarding English law, that the court will declare: “let the present case be governed by the precedent to be overruled for the last time […] but let the precedent be deprived of effect for the future”. Cf. Aigler, “Law Reform by Rejection of Stare Decisis” (1964) 5 Ariz. L.R. 155, 157: “One may find interest in speculation as to what would be the effect if […] judges were to incorporate in their opinion a statement in substance: ‘This decision shall not constitute a precedent’”.

55 Kocourek and Koven, op. cit., p. 995.

56 Schaefer, , “The Control of ‘Sunburst’: Techniques of Prospective Overruling” (1967) 22 Record of N.Y.C.B.A. 394, 402.Google Scholar

57 Note (1947) 60 Harv. L. R. 437, 440: “a holding itself is but a prophecy”; Freeman, R.H., “The Protection Afforded Against the Retroactive Operation of Overruling Decisions” (1918) 18 Col. L. R. 230, 232Google Scholar: “the obligations imposed upon the courts by the doctrine of stare decias is a moral obligation only”. Cf. Chamberlain, , Stare Decisis (1885) 19.Google Scholar

58 Schaefer, loc. cit.

59 Salmond, , Jurisprudence (12th ed., 1966) 148.Google Scholar

60 [1900] 1 Q.B. 616, 623. For other examples, see Cross, Precedent, cit. (1961) 125 et seq. ((2nd ed., 1968) 123 et seq.).

61 As against this, the Ontario Supreme Court has held that although an inferior court must follow the rules laid down by the Court of Appeal, where the latter itself has deviated from its own rules the inferior court must adopt the most recent of such inconsistent rules and leave it to the Court of Appeal to decide which rule is to be preferred: Chliwniak v. Chliwniak (1972) 24 D.L.R. 3d 646.

62 With regard to the possibility that a court bound by the precedent of a superior court will jump the gun, that is to say, will disregard that precedent, in the hope that the superior court will diverge from it, see for the trend in America to tolerate such practice Auerbach, et al. , The Legal Process (1961) 183.Google Scholar For the opposite trend see the observations of the Chief Justice of Australia in Jacobs v. Utah Contruction & Engineering Pty. Ltd. (1966) 40 A.L.J.R. 306, 308; Cross, , “Recent Developments in the Practice of Precedent—The Triumph of Common Sense” (1969) 43 Austr. L.J. 3, 5.Google Scholar

63 By contrast, there would not occur an infraction of sec. 33 if the District Court would say in its judgment: “We must decide according to the old rule; the losing side in this case should appeal and the Supreme Court may vary this judgment in accordance with the new rule which it has declared.”