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Prospective Revision of Precedent

Innovations in case law have traditionally always had retroactive effect also, first on the case in question, and therefore on past conduct, and then, to the extent that authority attaches to the precedent or it is at least followed in practice, on other cases subsequently heard, although the conduct involved here also preceded the declaration of the new rule. Justice Holmes, in a dissenting opinion of 1910, wrote: “I know of no authority in this case to say that in general state decisions shall make law only for the future. Judicial decisions have had retrospective operation for near a thousand years”. It is fairly certain that Justice Holmes had the Common Law world in mind, but the picture would not be different if we looked at the situation elsewhere. In France as well, for instance, the rétroactivité des nouvelles jurisprudences has been considered as une infirmité du système jurisprudentiel. Nevertheless, it is a fact that the situation excites some consternation among lawyers and the public, which is particularly strong in those matters where retroactivity is singularly severe in its effects and the legislature normally refrains from imposing it, although not forbidden to do so under constitutional principles (laws being interpreted and applied non-retroactively in the absence of any express provision in this regard) and in those instances where there was reliance, explicit or presumed, by the parties on the rule which is subsequently abandoned.