Law Commons^™

Legal Transitions: Some Welfarist Remarks, Matthew D. Adler

Faculty Scholarship

This essay offers a sympathetic, utilitarian critique of Louis Kaplow's famous argument for legal retroactivity in his 1986 article, "An Economic Analysis of Legal Transitions." The argument, very roughly, is that the prospect of retroactivity is desirable if citizens are rational because it gives them a desirable incentive to anticipate legal change. My central claim is that this argument trades upon a dubious, objective view of probability that assumes rational citizens assign the same probabilities to states as rational governmental officials. But it is subjective, not objective probabilities that bear on rational choice, and the subjective probabilities of rational citizens …