普通法司法判例的溯及力

October 25, 2011 Search Jiffynotes.com Book Notes Store Essays Find Scholarships Test Prep Material Financial Aid Help Reference A B C D E F G H I J K L M N O P Q R S T U V W X Y Z SAT; ACT; GRE Test Prep Material Click Here xx RETROACTIVITY OF JUDICIAL DECISIONS LEGISLATION ordinarily does not apply retroactively to conduct occurring prior to its adoption but only to actions taking place after enactment. Indeed, the potential unfairness of some retroactive legislation is so great that certain forms of legislative retroactivity are specifically prohibited by the Constitution. The EX POST FACTO clauses of the Constitution prohibit retroactive criminal penalties, and the CONTRACT CLAUSE limits state legislation that would impair the obligation of pre-existing contracts. In addition, certain other fundamentally unfair forms of legislative retroactivity may violate constitutional due process guarantees. Judicial decisions, on the other hand, ordinarily are retroactive in application. To some extent, such retroactivity is a consequence of the nature and function of the judicial decision-making process. Traditional lawsuits and criminal prosecutions concern the legal consequences of acts that have already taken place. If judicial decisions in such cases are to adjudicate the issues between the parties, those decisions necessarily must apply to prior events. The retroactive effect of judicial decisions, however, commonly extends beyond application to the particular parties involved in a case. To the extent that a judicial decision constitutes a new legal precedent, it will ordinarily be applied to all undecided cases that are subsequently litigated, regardless of whether the relevant events occurred before or after the new precedent was announced. Although traditional judicial decisions are, in theory, completely retrospective in nature, two sets of legal doctrines place important practical limits on the actual breadth of decisional retroactivity. Statutes of limitations, which require suits to be brought within some specified period of time after the relevant events occur, limit the retrospective application of new precedents to the length of the prescribed limitations period; and the doctrines of RES JUDICATA and collateral estoppel prevent the relitigation of cases and issues that have been finally decided before the new precedent is announced. In addition, as in the case of retroactive legislation, there are some circumstances of fundamental unfairness in which constitutional principles may prevent the retroactive use of judicial decisions. By analogy to the constitutional prohibition of ex post facto laws, for example, the Supreme Court in Bowie v. City of Columbia (1964) held it unconstitutional to apply a new expansive judicial interpretation of a criminal statute to prior conduct. The principal theoretical basis supporting the broad traditional retroactivity of judicial decisions is the abstract idea that courts (unlike legislatures) do not make, but merely find, the law. This theory in effect denies the existence of retroactivity; under the theory the events in question were always subject to the newly announced rule, although that rule had not been authoritatively articulated. The theory that judicial decisions do not make law does not always reflect reality. Perhaps the clearest example of apparent judicial lawmaking is a court's overruling of an earlier judicial decision regarding the meaning of the COMMON LAW, a statute, or a constitutional provision. Even when no earlier decision is overruled, judicial decisions or interpretations may announce genuinely new principles. When judicial decisions thus create new law, it is plausible to argue that the new principles should not be given the retroactive effect normally accorded to judicial decisions, but should instead be treated more like new legislation and given prospective effect only. These arguments are strongest when individuals or governments have relied (perhaps irrevocably) upon earlier decisions in shaping their conduct. In such circumstances, retroactive application may cause unanticipated and harmful results. In response to these and similar considerations, some courts have used the practice of PROSPECTIVE OVERRULING of prior decisions. Such a court, in overruling a precedent upon which substantial reliance may have been placed, may announce in OBITER DICTUM its intention to reject the old doctrine for the future, but nevertheless apply the old rule to the case at hand and to other conduct prior to the new decision. Alternatively, the court may apply the new rule to the parties before it, thus making the announcement of the new rule HOLDING rather than "dictum," but may otherwise reserve the rule for future application. In Great Northern Railway Company v. Sunburst Oil and Refining Company (1932) the Supreme Court held that the Constitution permits either of these forms of prospective overruling. The Sunburst decision gave constitutional approval to prospective judicial overruling of common law precedents and of decisions interpreting statutes. Such prospective overruling has primarily been used in two kinds of cases: new interpretations of statutes relating to property and contract rights, and the overruling of doctrines of municipal and charitable immunity from tort liability. The most prominent and controversial recent issue concerning prospective overruling, however, has involved the retroactivity of new Supreme Court decisions enlarging the constitutional rights of defendents in criminal proceedings. During the 1950s and 1960s, the Court significantly broadened the rights of criminal defendants with respect Teacher Ratings: See what others think of your teachers Page 1 of 2Retroactivity of Judicial Decisions 2011-10-25http://www.jiffynotes.com/a_study_guides/book_notes/eamc_05/eamc_05_02149.html zhengmingwei 文本框 立法通常都不溯及既往。某些溯及既往立法潜在巨大的不公平，以至于宪法会特别限制溯及既往的立法。…… 另一方面，司法判例通常却是溯及既往地适用的。在某种程度上，这种溯及力也是司法判决制作程序的性质和功能结果。传统法律诉讼和刑事审判关注已经实施的行为的后果。如果司法判决在这些案件中裁判当事方的争议，这些判决必然适用于之前的事项。然而，司法判决的溯及力通常延伸到本案之外。在这种程度上，司法判例构成一项新的判例，通常被适用于之后提出诉讼的未决案件，无论相关事项是发送在新判例之前或之后。 虽然传统的司法判决，在理论上，其性质是完全地溯及的，但有两组法律原则对其进行的实际溯及范围进行限制：诉讼时效限制，一是不再理和禁止反言原则。此外，宪法原则也防止某些情况下溯及性立法的根本性不公平。类似于宪法禁止事后立法，比如最高法院在Bowie v. City of Columbia (1964)案件中认为，适用一项刑事法令的新扩展性解适用与之前的行为是违反宪法的。 zhengmingwei 文本框 主要支持司法判例传统上宽泛地溯及既往理论基础是这种抽象的观念，认为法庭（不是立法者）不制定法律，而仅仅发现法律。该理论在事实上否认存在溯及力，认为争议事项总要受新规则的约束，虽然新规则之前没有被权威发布。 zhengmingwei 文本框 上述认为司法判例不制定法律的理论不总是能反应现实。也许司法造法的最明显例子是法庭推翻关于普通法、法令或者宪法条款的意思的之前司法判例。即使在没有推翻先例的场合，司法判例或者解释可能宣告一项全新的原则。在司法判例如此地造新法时，人们争论到，新原则不应该像通常的判例那样具有溯及力，相反应该被视为新立法只有面向未来的效力。这种争论是非常有力的，当个体或者政府信赖先例安排行为时。在这种情况下，溯及力的适用可能造成不可预见性和有害的后果。 zhengmingwei 文本框 作为对这些相关争论的回应，有些法庭已经采用面向未来地推翻先例的实践。法庭在推翻已经被广泛信赖的先例时，可以在附带意见中 表 关于同志近三年现实表现材料材料类招标技术评分表图表与交易pdf视力表打印pdf用图表说话 pdf 面其面向未来地推翻先例，但是对于手边的案子和其他在本新判例之前发送的行为适用先例审理。或者，法庭可以适用新规则于在审案件中，由此做出新规则的确定判决而非附带意见，但可以通过其他方式保留新规则适用于未来。Great Northern Railway Company v. Sunburst Oil and Refining Company (1932)案件中，最高法院认为宪法允许上述任何一种面向未来的推翻先例判决。在上述判例中，授予面向未来地推翻普通法先例和解释法令判例宪法上的认同。这种推翻主要被适用与两类型的案件：对 设计 领导形象设计圆作业设计ao工艺污水处理厂设计附属工程施工组织设计清扫机器人结构设计 财产和合同权利的法令的新解释，推翻市政和慈善免除侵权责任的规则。 zhengmingwei 文本框 近期关于面向未来推翻判例的最引人注目和具有争议的案子是最高法院扩大刑事被告宪法权利的判例的溯及力问题。在二十世纪50年代和60年代，法院引人注目地扩大刑事被告关于违反宪法搜查、逮捕、警察询问和招供、 zhengmingwei 文本框 司法判例的溯及力 zhengmingwei 文本框 郑明伟翻译，深圳，经天律师事务所。 草译，欢迎赐教。（zhengmingwei@jingtianlawfirm.com） 格言——促进知识的传播！ to unconstitutional SEARCHES AND SEIZURES, POLICE INTERROGATION AND CONFESSIONS, the scope of the RIGHT AGAINST SELF-INCRIMINATION, and the inadmissibility of unconstitutionally obtained evidence. The Court has ruled that some of these new constitutional interpretations should not be given general retrospective application. The extent of the possible retroactive application of new doctrines affecting the constitutionality of criminal convictions is greater than in most other areas of law because of the potential availability of post-conviction relief to prisoners whose convictions might be effectively challenged if the newly announced rules were applicable to prior convictions. Petitions for HABEAS CORPUS are not subject to statutes of limitations or to the ordinary operation of the doctrine of res judicata. Thus, in 1961, when the Supreme Court decided in MAPP V. OHIO that the Constitution prohibits states from basing criminal convictions upon EVIDENCE obtained in violation of the FOURTH and FOURTEENTH AMENDMENTS, full retroactivity of that decision would have permitted a great many prisoners to challenge their convictions, no matter when their trials had occurred. Because the Mapp decision was based upon the interpretation of constitutional provisions dating from 1791 and 1868, the theoretical arguments for full retroactivity were strong. However, Mapp overruled the opinion of the Court in WOLF V. COLORADO (1949), which had held, directly contrary to Mapp, that the states were free to use unconstitutionally obtained evidence in most circumstances. Although police could hardly have legitimately relied upon Wolf in engaging in unconstitutional searches, state prosecutors and courts might have relied upon Wolf in using unconstitutionally obtained evidence. The primary reason given by the Court for the Mapp decision, moreover, was to deter police misconduct; the Mapp EXCLUSIONARY RULE is not a safeguard against conviction of the innocent. Retroactive application of Mapp to nullify pre-existing convictions would thus arguably contribute little to the main purpose of the Mapp rule while permitting guilty defendants to escape their just punishment. Similar issues have surrounded the potential retroactivity of other new Supreme Court decisions enlarging the constitutional rights of criminal defendants. The Supreme Court has resolved these retroactivity issues by employing a test focusing on three main criteria: whether the purpose of the new rule would be furthered by its retroactive application; the extent of the reliance by law enforcement authorities and courts on prior decisions and understandings; and the likely effect of retroactive application on the administration of justice. Using this approach the Court held, in Linkletter v. Walker (1965), that the Mapp decision would be applied to trials and direct APPEALS pending at the time of the Mapp decision, but not to state court convictions where the appeal process had been completed prior to announcement of the Mapp opinion. The same rule of general nonretroactivity has been applied to new constitutional interpretations prohibiting comment on a defendant's failure to take the witness stand at trial; establishing the MIRANDA RULES for police warnings to persons interrogated; prohibiting WIRETAPPING without judicial SEARCH WARRANTS; and limiting the permissible scope of SEARCHES INCIDENT TO ARRESTS. On the other hand, full retroactivity has been accorded to new decisions requiring provision of free counsel for INDIGENTS in criminal trials; requiring proof beyond a REASONABLE DOUBT in state criminal proceedings; and broadening the definition of constitutionally prohibited DOUBLE JEOPARDY. In general, rules designed to protect innocent persons from conviction have been given full retroactive application, while rules primarily intended to correct police and prosecutorial abuses that do not implicate guilt have been given limited retroactivity. The practical significance of these retroactivity decisions has been diminished in recent years by Supreme Court decisions that limit the availability of post-conviction relief to incarcerated persons (for example, STONE V. POWELL, 1976) and by the current Supreme Court's general opposition to continued expansion of defendants' constitutional rights in criminal proceedings. PAUL BENDER (1986) Bibliography FIELD, OLIVER P. 1935 The Effect of an Unconstitutional Statute. Minneapolis: University of Minnesota Press. Retroactivity of Judicial Decisions Copyright © 2000 by Macmillan Reference USA All rights reserved xxxxxxx Jiffynotes.com Copyright © 1996- 2011 privacy policy and terms of use Page 2 of 2Retroactivity of Judicial Decisions 2011-10-25http://www.jiffynotes.com/a_study_guides/book_notes/eamc_05/eamc_05_02149.html zhengmingwei 文本框 反对自证其罪以及违反宪法获得证据的不可采纳性的范围的权利。法院已经裁判这些新的宪法解释中部分不得给予溯及力。 zhengmingwei 文本框 新规则可能溯及适用的范围对刑事定罪的合宪性影响是所有法律领域中最大的，因为如果新规则适用于之前的定罪，对定罪可能产生有力的挑战的罪犯可能获得定罪后的救济。…… zhengmingwei 文本框 最高法院已经已经解决溯及力问题通过一项聚焦于三个主要原则的测试：是否新规则的目的通过溯及既往能得意加强；执法部门和法庭对先前判例和解释的信赖程度；溯及既往对司法可能产生的效果。Linkletter v. Walker (1965)案中，法院认为Mapp判例适用于在Mapp判决时未决的审判和直接上诉，但对于上诉程序已经在Mapp意见宣告时完成的州法院认定有罪的不适用。……总体上，对于保护无辜罪犯的规则全部给予溯及既往，而旨在纠正警察和监察滥用的规则部分给予溯及既往效力。这些溯及力判例在实践上的重要已经在今年减弱，由于最高法院判决到，限制定罪后救济适用被监禁人员，以及近期最高法院总的来说反对继续扩大被告在刑事程序中的宪法权利。