Howard Herman has posted From Harper To Sessions: The Double Standard Of Retroactive Application Of Constitutional Interpretation In Supreme Court Decisions In Federal Civil Matters on SSRN. Here is the abstract:
This Article argues that the crisis exposes a fundamental and unresolved contradiction in the Court’s retroactivity jurisprudence. Harper v. Virginia Department of Taxation commands full retroactive effect for new rules of federal law in all cases on direct review, yet Sessions v. Morales-Santana denied any retroactive remedy after announcing a constitutional violation in derivative citizenship rules, leveling down rather than extending relief. This Article traces retroactivity doctrine from Blackstonian declaratory theory through Linkletter, Chevron Oil, and Harper; examines the void ab initio principle and common law retroactivity; analyzes the enduring force of United States v. Wong Kim Ark; and demonstrates that Harper and Sessions cannot be reconciled under any principled framework. The resulting doctrinal incoherence is especially dangerous in the citizenship context, where reliance interests spanning decades hang in the balance. The Article concludes by proposing doctrinal solutions and forecasting the litigation landscape that will follow the Court’s ruling.
Recommended.