Adam B. Thimmesch (University of Nebraska at Lincoln – College of Law) has posted Adjudicative Retroactivity and Constitutional Safe Harbors on SSRN. Here is the abstract:
The Supreme Court’s retroactivity doctrine, together with much of the accompanying legal scholarship, has increasingly treated federal adjudication as necessarily retroactive. But that understanding emerged largely in the context of a constitutional history marked by the expansion of individual rights and by corresponding limits on government power. This Article addresses the opposite setting: cases in which the Court overrules precedent that had protected conduct, thereby eliminating a “constitutional safe harbor” and expanding the scope of individual liability. Retroactivity in this context raises distinctive concerns, including threats to Rule of Law values, individual liberty, and the institutional legitimacy of the Court itself. The mere risk of retroactive liability can also be weaponized by government actors to chill the exercise of recognized rights prior to any interpretive change by the Court.
This Article responds to those harms by exploring the failure of the existing doctrine and scholarship to account for the unique issues raised by the loss of constitutional safe harbors. It also discusses the consequences of that omission, including an overreliance on remedial doctrines that are inadequate to address the retroactivity risk. The Article then advances two complementary theories for limiting retroactivity in these circumstances. First, it argues that purely prospective adjudication in this category of cases is both consistent with the positive law and normatively justified. Second, it identifies a due process right rooted in fair-notice principles that shields individuals from retroactive civil liability when their conduct was constitutionally protected at the time it occurred. The Article thus offers a more complete view of adjudicative retroactivity—one that accounts for both the expansion and erosion of constitutional protections.
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