as i mentioned at our meeting last night, i initially had some trouble reconciling retroactive application of court opinions with the notion that there is not some objective thing that is “the law.” on it’s face, it seems as though for a retroactive application to be appropriate, there must have been something that is “the law” that existed at the time the parties acted that should have dictated the manner in which they acted.
but i don’t think this is a necessary conclusion. one (i’m sure there are more) possibility is that the law is flowing. perhaps it is everchanging and one aspect of law includes some sort of reasonable expectation component to it. cases often spring up where there appear to be gaps in the law (be it statutory or common law) and the courts must nevertheless decide the issue. often, they will use precedent and/or statutory language to determine what “the law” is in the instance. but where “the law” is not in black and white, how does a court “find” it?
i think regardless of whether you think the law is “found” or “made” by the judge, retroactivity can be applied. if it’s found the case seems easier, since the law always existed, and simply needed to be applied to the facts. but even where law is “made” retroactivity seems to comport with (at least my) notions of fairness as long as there is some rational reasonable expectation that could be drawn by the parties at the time they acted.
a perfect example is the one professor mootz brought up last night about parenting. you can’t sit a kid down and list off a million rules and either 1) expect them to remember them all or 2) cover every situation. but we still think it’s ok to reprimand kids when they do something wrong. part of this is to teach them so they won’t make a similar mistake in the future, but part is because by piecing together the elements of what they did, they should have reasonably expected that some part of their action went against the parent’s wishes.
i’ve only scratched the surface, but it seems to me that to reconcile retroactive application and the lack of an objective thing known as “the law” there must be on some level an element of expectation.
josh
