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NCJ Number: 47640 Find in a Library
Title: OF CHIMERAS AND COURT AND CONSTERNATIONS (FROM CONSTITUTIONAL COUNTERREVOLUTION?, 1977, BY RICHARD F FUNSTON - SEE NCJ-47637)
Author(s): R Y FUNSTON
Corporate Author: John Wiley and Sons
Managing Editor
United States of America
Date Published: 1977
Page Count: 24
Sponsoring Agency: John Wiley and Sons
New York, NY 10158
Format: Document
Language: English
Country: United States of America
Annotation: THE SUPREME COURT'S REEVALUATION, FIRST UNDER CHIEF JUSTICE WARREN AND LATER UNDER JUSTICE BURGER, OF THE USUAL RULE OF ABSOLUTE RETROACTIVITY OF CONSTITUTIONAL DECISIONS IS EXAMINED.
Abstract: THE QUESTION OF THE RETROACTIVE EFFECT OF THE NEW CONSTITUTIONAL PROCEDURES MANDATED BY THE WARREN COURT AS REGARDS DEFENDANT'S RIGHTS RAISED THE PERENNIAL PROBLEM OF WHAT IS LAW, AND WHAT IS THE RELATIONSHIP OF THE JUDICIARY TO THE LAW. THE DECLARATORY THEORY CONTENDS THAT THE LAW IS AN OBJECTIVELY DETERMINABLE ENTITY WHICH JUDGES APPLY AS IT IS REVEALED TO THEM THROUGH LITIGATION; THE JUDGE IS THE DISCOVERER OF THE LAW, RATHER THAN BEING ITS CREATOR. OTHER HAVE MAINTAINED THAT JUDGES DO IN FACT DO SOMETHING MORE THAN DISCOVER LAW; THEY MAKE IT INTERSTITIALLY BY FILLING IN THE VAGUE, INDEFINITE, OR GENERIC TERMS OF THE STATUTORY OR CONSTITUTIONAL LAW WITH JUDICIAL INTERPETATIONS. IMPLICIT IN THIS CONCEPTION IS THE ADMISSION THAT WHEN A CASE IS OVERRULED, THE EARLY DECISION, RATHER THAN HAVING BEEN INCORRECT, WAS SIMPLY A JUDICIAL DETERMINATION WHICH LATER JUDGES OF DIFFERENT OPINIONS THINK TO BE INAPPLICABLE TO CONTEMPORARY REALITIES. RATHER THAN BEING ERASED BY THE LATER, OVERRULING DECISION, THE PREVIOUS CASE IS CONSIDERED TO HAVE BEEN AN EXISTING JURIDICAL FACT , AND INTERMEDIATE CASES DECIDED UNDER IT ARE NOT TO BE DISTURBED. THE ABSOLUTE RETROACTIVITY OF ANY COURT DECISION, THEREFORE, IS NOT LOGICALLY COMPELLED. SINCE COURTS, AND PARTICULARLY THE U.S. SUPREME COURT, DO AT TIMES MAKE NEW LAW, THE MODERN VIEW ADMITS SOME EXCEPTIONS TO THE USUAL RETROACTIVE OPERATION OF JUDICIAL DECISIONS. JUDICIAL PRESTIGE AND PUBLIC RESPECT FOR THE RULE OF LAW MIGHT SUFFER DAMAGE IF RETROACTIVE APPLICATION OF NEW CONSTITUTIONAL RULES OF CRIMINAL PROCEDURE WERE TO FREE CRIMINALS, WITH THIS IN MIND, THE WARREN COURT ADVANCED THE PROPOSITION THAT IT HAD THE POWER TO LIMIT THE RETROACTIVE EFFECT OF ITS DECISIONS. THE WARREN COURT SUGGESTED THREE POSSIBLE APPROACHES: (1) IT MIGHT DECIDE TO APPLY THE NEW RULE OF LAW TO ALL CASES WHICH HAD NOT BEEN FINALIZED, THAT IS, TO ALL CASES STILL OPEN TO DIRECT APPELLATE REVIEW; (2) IT MIGHT ADOPT A RULE STIPULATING THAT THE NEW PROCEDURAL GUARANTEES APPLY ONLY TO TRIAL COMMENCING AFTER THE DATE OF THE ANNOUNCEMENT OF SPECIFIC NEW RIGHTS DECLARATIONS; OR (3) IT MIGHT GRANT RELIEF ONLY IN THOSE CASES WHICH AN ALLEGED VIOLATION OF THE NEW RIGHT HAD OCCURRED AFTER THE DATE OF THE CASE ANNOUNCING IT. THESE THREE STANDARDS MAY BE CHARACTERIZED AS THE FINAL-JUDGEMENT RULE, THE TRIAL-DATE RULE, AND THE VIOLATION-DATE RULE. THE INITIAL ADOPTION OF THE FINAL-JUDGEMENT RULE IS ASSESSED. NUMEROUS COURT CASES ARE NOTED AND EXAMINED, WITH ATTENTION TO THE MERITS AND DISADVANTAGES OF THE RULE. IN THE FINAL FINAL YEARS OF THE WARREN COURT, A GROWING DISENCHANTMENT WITH THE FINAL-JUDGEMENT RULE WAS EVIDENCED; THE COURT INCREASINGLY CAME TO FAVOR A VIOLATION-DATE STANDARD FOR LIMITING THE RETROACTIVE EFFECT OF ITS CRIMINAL DEFENDANTS' RIGHTS DECISIONS. RELEVANT COURT HOLDINGS IN THIS REGARD ARE CITED AND DISCUSSED. IT IS NOTED THAT THE BURGER COURT FOUND THE POWER TO LIMIT THE RETROACTIVITY OF ITS HOLDINGS TO BE A DESIRABLE JUDICIAL TOOL BECAUSE IT ALLOWS THE NEW JUSTICES TO LIMIT CERTAIN CRIMINAL DEFENDANTS' RIGHTS HOLDINGS THEY FIND OBJECTIONABLE. NOTES ARE INCLUDED. (KBL)
Index Term(s): Judicial decisions; Judicial process; Judicial review; US Supreme Court
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http://www.ncjrs.gov/App/publications/abstract.aspx?ID=47640

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