Touro Law Review
I do not know whether to call myself a utility infielder or a garbage man, but I have a number of widely disparate cases to talk about, all of which affect state and local governments in a very significant way.
I want to start with Harper v. Virginia Department of Taxation, the retroactivity case, because this one produced an interesting split between the so-called conservative judges. I do not know if there are Federalists out there, but two basic propositions of Federalist doctrine were at issue here. One was the extent of state immunity from federal taxation, and the other was the whole question of retroactivity. To a Federalist, it is very important that state governments not be imposed upon by federal courts and federal tax problems. On the other hand, they like to think of courts as always discovering the law, not making the law. If you were a possible candidate for a federal judgeship and you went to the Justice Department in the Reagan and Bush.
Administration, the very first question they would ask you is, “are you in favor of judges making law or do you think judges simply discover law?” You had better get that question right or you are not going to go any further. And, of course, the doctrine is that judges never make law, they discover law.
Problems of retroactivity implicate that very key issue. Under what circumstances should a court, having made either a constitutional or a non-constitutional determination, say that a law applies in this case and in future cases, but it does not apply backwards. Any governmental body that says, “This is the law from now on,” is making law. I do not know how else to describe it. Judges are not supposed to do that, they are supposed to say, “Oh, we were blind, but now we can see. We did not know what the law was. Now we know. It is the law and oh, by the way, it always was the law.” If there is one strong Federalist doctrine, it is that judges should not make law and therefore a decision should always apply retroactively. The Harper case involved that issue in a very significant way for state and local governments.
Retroactivity, Equal Protection and Standing, 10 Touro L. Rev. 503
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