LawProse Lesson #257: Statutes and Judicial Opinions

Statutes and Judicial Opinions: When, in Time, Do They Begin and End?

In the Beginning. The traditional view is that statutes are prospective only, but judicial opinions operate retroactively. That’s because ex post facto laws are thought to be fundamentally unfair, and judicial opinions normally declare what the law is—as opposed to making it. This Blackstonian view of caselaw has a few existing exceptions of great importance, involving vested rights and new judge-made rules of criminal procedure. See, e.g., Linkletter v. Walker, 381 U.S. 618, 619–20 (1965). In the End. Statutes don’t obsolesce. As long as they have been neither repealed nor judicially invalidated, they remain the law. But unlike statutes, judicial precedents may become obsolete if the conditions or facts that existed when they were rendered are different or no longer exist, or if their underlying rationale is no longer sound. Further reading: Henry Campbell Black, Handbook on the Law of Judicial Precedents § 212, at 689 (1912). 1 William Blackstone, Commentaries on the Laws of England 69 (4th ed. 1770). Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts § 57, at 336 (2012).