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University of Pennsylvania Carey Law School

Legal History

Jurisprudence

1997

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Full-Text Articles in Law

Retroactivity And Legal Change: An Equilibrium Approach, Jill E. Fisch Jan 1997

Retroactivity And Legal Change: An Equilibrium Approach, Jill E. Fisch

All Faculty Scholarship

In this Article, Professor Fisch assesses currrent retroactivity doctrine and proposes a new framework for retroactivity analysis. Current law has failed to reflect the complexity of defining retroactivity and to harmonize the conflicting concerns of efficiency and fairness that animate retroactivity doctrine. By drawing a sharp distinction between adjudication and legislation, the law has also overlooked the similarity of the issues that retroactivity raises in both contexts. Professor Fisch's analysis, influenced by the legal process school, uses an equilibrium approach to connect retroactivity analysis to theories of legal change. Instead of focusing on the nature of the new legal rule, …