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Retroactivity Pros And Cons

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Landgraf and Canons of Statutory Application
“These questions [of retroactivity] are among the most difficult of those which have engaged the attention of [the] courts . . . .” – Chief Justice Charles Evans Hughes (Chicot County Drainage Dist. v. Baxter State Bank, 308 U.S. 371, 374 (1940).)
The general rule pertaining to retroactivity is that statutes are presumed to operate prospectively unless there is legislative expression to the contrary. But should this principle be applied to legislation intended to benefit minorities and those whose voices are underrepresented in government?
BACKGROUND

In 1994, the Supreme Court voted against applying the Civil Rights Act of 1991 (the Act) retroactively, i.e., to cases pending while the law was passed. …show more content…

(The concurrence was joined by Justices Clarence Thomas and Anthony Kennedy.) Scalia argued that the majority’s analysis of text and legislative history subverted Bowen’s [CITE] clear statement rule of retroactivity and transformed the rule into a “discernible legislative intent” rule. [CITE.] Justice Scalia also took issue with the Court’s understanding of retroactivity and the substance-or-procedure distinction that was critical to its vested rights analysis. Instead, he advocated a strict presumption against retroactivity for any law, whether it is substantive or procedural and whether it affects vested rights or not. [CITE.]
The Court firmly embraced the idea that legislation entails often unknowable and messy compromise, and that federal courts in a system premised on legislative supremacy should respect the rules clearly articulated in the statutory text, even if they produce awkward results. …show more content…

Moreover, I support a presumption in favor of minority interests when interpreting provisions like the 1991 Act; to do otherwise violates the unspoken ‘spirit’ of the law. (I.e., the core purpose of the law: to grant recourse to the wronged.) Doing so would place a burden of clarity upon the legislators: if a legislative body wishes to adopt a statutory rule that will disadvantage minorities, it must do so in daylight. By adopting such an interpretive presumption, courts compensate for the effects of prejudice. In light of these considerations, the Act should have been given retroactive

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