NEW LAW, NON-RETROACTIVITY, AND CONSTITUTIONAL REMEDIES

In a number of doctrinal areas, the Supreme Court has held that courts should deny redress for past constitutional violations when the claim to relief rests on "new" law. The Warren Court held many of its novel constitutional decisions regulating criminal procedure to be non-retroactive. Successor Courts have made legal novelty a basis for denying relief in constitutional tort actions against government officials, in federal habeas corpus actions, and in constitutionally-based actions for tax refunds. Though individually controversial, "new" law doctrines have seldom been linked and subjected to comprehensive analysis. In this Article, Professors Fallon and Meltzer argue that the various "new" law doctrines all raise issues that are best analyzed as involving, not the applicability vel non of "new" decisions, but the law of constitutional remedies. The Article develops a general theory of constitutional remedies, centered around two principles that demand adequate redress to keep government within the bounds of law, but that sometimes permit the denial of individually effective relief in particular cases. Professors Fallon and Meltzer then apply their theory to assess and propose reforms of the doctrines in which "new" law has been prominently featured.