Vanderbilt Law Review


K. David Steele

First Page



Was there ever such a profession as ours anyhow? We speak of ourselves as practicing law, as teaching it, as deciding it, and not one of us can say what law means."' Justice Cardozo's observation about the elusive nature of the American legal system lies at the heart of the controversy over retroactivity. Questions about whether judges may prospectively overrule the law raise fundamental issues concerning the nature of law and the proper role for the judiciary.

In 1991, the Supreme Court issued its latest opinion on prospective overruling and judicial rulemaking. In James B. Beam Distilling Co. v. Georgia, the Court ruled that modified or selective prospectivity is impermissible. The issue in Beam was whether the Court's decision in Bacchus Imports, Ltd. v. Dias should apply retroactively. The Bacchus Court had invalidated a Hawaii liquor tax that distinguished imported and local alcoholic products. After this decision, the James B. Beam Distilling Company (Beam) sued Georgia seeking a refund of all taxes collected in 1982, 1983, and 1984, under a similar state tax statute. The Beam Court concluded that Bacchus must apply retroactively. Justice Souter, writing for the Court but joined only by Justice Stevens, concluded that the Bacchus decision must apply retroactively because selective or modified prospectivity is impermissible. He ruled that considerations of fairness and stare decisis precluded the Court from applying different rules to similarly situated litigants.

In one of three separate concurring opinions, Justice White agreed with Justice Souter that Beam should receive the benefit of the Bacchus judgement. However, he emphasized that the Beam decision should have no effect on pure prospectivity, which should remain a viable judicial option governed by the Court's prior decisions."

In a separate concurring opinion, Justice Blackmun argued that all prospectivity, whether selective or pure, is unconstitutional. He reasoned that only legislatures have the power to promulgate new rules which will be applied only prospectively and that the limited nature of judicial review requires a court to decide the case before it based on whatever rule it decides is correct. Justice Blackmun argued that to allow otherwise would weaken the doctrine of stare decisis by allowing the Court to avoid the disruption that necessarily results from its adoption of a new rule. Hence, he concluded that the combination of retroactive effect and stare decisis was necessary to constrain the Court from routinely announcing new rules.'

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