Vanderbilt Law Review

First Page



On November 21, 1991, President Bush signed the Civil Rights Act of 1991 (the "Act") into law. The Act contained a general section stating that its provisions should take effect upon enactment. What the Act did not do, however, is indicate whether it should apply to cases pending at the time of its enactment. Since the Act is more favorable to plaintiffs than was its predecessor, plaintiffs whose cases were pending at the time of its enactment have attempted to amend their complaints to benefit from the new Act's provisions. Congress's failure to indicate whether the Act should apply to cases pending at the time of its enactment has forced the courts to make their own judgments on the Act's retroactivity.'

The Supreme Court's refusal to clarify its past decisions regarding the retroactive application of legislation complicates the lower courts' analyses of this issue.' The Court's past decisions present the lower courts with two completely different starting points for analyzing whether a statute should apply retroactively.' The difficulty in applying Supreme Court precedents stems from the fact that the two Supreme Court directives on the subject seem to diametrically oppose one an- other. Therefore, not only must the lower courts determine what Congress was thinking when it enacted the Civil Rights Act of 1991, the lower courts also must determine what the Supreme Court was thinking when it handed down two apparently irreconcilable lines of analysis on the same subject.

Since the early 1800s, the Supreme Court generally has held that a strong presumption that statutes should not operate retroactively exists and that that presumption is rebuttable only by strong evidence of Congress's intent to the contrary. The Court reaffirmed this presumption as recently as 1988 in Bowen v. Georgetown University Hospital., The Supreme Court, however, also has espoused a presumption in favor of retroactivity that directly opposes its prior presumption against retroactivity. In a line of cases anchored by United States v. Schooner Peggy, the Supreme Court has directed that a court should apply the law in existence at the time of its decision.' In Bradley v. School Board of Richmond," the Court relied on Schooner Peggy and its progeny in holding that every statute contains a presumption of retroactivity.

The lower courts must resolve a difficult question at the outset. Should a court adopt Bowen and begin its analysis with the presumption that the Act does not apply retroactively, or should it adopt Bradley and begin with the presumption that the Act should apply retroactively? The lower courts have had great difficulty reaching a consensus on this issue.'

This Recent Development analyzes the retroactive application of the Civil Rights Act of 1991. Part II explores the conflicting presumptions the Supreme Court has created and argues that the Court should clarify retroactivity analysis by rejecting the Bradley presumption. Part III discusses the impact a court's choice between Bowen and Bradley has on that court's resolution of the Act's retroactivity. Part IV concludes that the Supreme Court should clarify its precedent by rejecting the Bradley decision and holding that the Civil Rights Act of 1991 does not apply retroactively.