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University of Illinois Law Review

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In his article, Professor Krieger discusses the inconsistent and contradictory application of the traditional rule against retroactive ratemaking. The author notes that while many courts adhere to the rule at least rhetorically, they tend to either ignore the literal terms of the rule or to create ad hoc exceptions to it; simultaneously, other courts continue to apply the rule inflexibly. As a result, courts provide little guidance to litigants and their attorneys on the general application of the rule. To remedy the inconsistent application of the traditional rule, Professor Krieger suggests a new formulation of the rule that creates only a presumption against retroactivity. The commission, faced with a retroactivity determination, would engage in an analysis to determine whether the claimant had a reasonable reliance on the prior rate and whether retroactive rate application would produce efficiency incentives or disincentives.