John Greabe (University of New Hampshire School of Law) has posted Managing the Costs of Constitutional Innovation on SSRN. Here is the abstract:
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Courts sometimes withhold remedies for justiciable and meritorious constitutional claims despite Marbury’s dictum that rights-violations require remedies. The phenomenon occurs with frequency in litigation establishing path-breaking rulings because constitutional innovation can be disruptive and expensive. This paper responds to scholarship calling for a revival of constitutional non-retroactivity doctrine — the now moribund practice of announcing rulings with only prospective effect — to minimize the costs occasioned by constitutional change. The paper argues against reviving non-retroactivity doctrine and proposes a framework that provides courts with concrete guidance on when they may permissibly withhold constitutional remedies. The proposed approach rationalizes current law — which is surprisingly coherent when viewed in terms of how constitutional remedies function — and better respects Article III limits on judicial power than a regime that legitimizes prospective rulings.
