Comparing the Prospective Effect of Judicial Rulings Across Jurisdictions

This work deals with the temporal effect of judicial decisions, and more specifically, with the hardship caused by the retroactive operation of overruling decisions. By means of a jurisprudential and comparative analysis, the book explores several issues created by the overruling of earlier decisions.

Overruling of earlier decisions, when it occurs, operates retrospectively with the effect that it infringes the principle of legal certainty through upsetting any previous arrangements made by a party to a case under long standing precedents established previously by the courts. On this account, in the recent past, a number of jurisdictions have had to deal with the prospect of introducing in their own systems the well-established US practice of prospective overruling whereby the court may announce in advance that it will change the relevant rule or interpretation of the rule but only for future cases. However, adopting prospective overruling raises a series of issues mainly related to the constitutional limits of the judicial function coupled with the practical difficulties attendant upon such a practice. This book answers a number of the questions raised by this practice. It makes use of the great reservoir of foreign legal experience that furnishes theoretical and practical ideas from which national judges may draw their knowledge and inspiration in order to be able to advise a rational method of dealing with time when they give their decisions.

Résumé

This work deals with the temporal effect of judicial decisions and more specifically, with the hardship caused by the retroactive operation of overruling decisions. By means of a jurisprudential and comparative analysis, the book explores several issues created by the overruling of earlier decisions.

Overruling of earlier decisions, when it occurs, operates retrospectively with the effect that it infringes the principle of legal certainty through upsetting any previous arrangements made by a party to a case under long standing precedents established previously by the courts. On this account, in the recent past, a number of jurisdictions have had to deal with the prospect of introducing in their own systems the well-established US practice of prospective overruling whereby the court may announce in advance that it will change the relevant rule or interpretation of the rule but only for future cases. However, adopting prospective overruling raises a series of issues mainly related to the constitutional limits of the judicial function coupled by the practical difficulties attendant upon such a practice. This book answers a number of the questions raised by this practice. It makes use of the great reservoir of foreign legal experience that furnishes theoretical and practical ideas from which national judges may draw their knowledge and inspiration in order to be able to advise a rational method of dealing with time when they give their decisions.

Contenu

Foreword.- About the Contributors.- Judicial Rulings with Prospective Effect-from Comparison to Systematization; Eva Steiner.- Part I European Jurisdictions.- The Prospective and Retrospective Effect of Judicial Decisions in Ireland; Niamh Connolly.- Effects in Time of Judgments in the Netherlands: Prospective Overruling and Related Techniques; Remco van Rhee and Wytze van der Woude.- The Temporal Effects of Judicial Decisions in Belgium; Sarah Verstraelen, Patricia Popelier and Sébastien van Drooghenbroeck.- Changing the Case law Pro Future in Germany A Puzzle of Legal Theory and Practice; Adam Sagan.- Towards a Sophisticated Theory of Precedent - Prospective and Retrospective Overruling in the Czech Legal System; denk Kühn.- The Role of Case Law and the Prospective Overruling in the Greek Legal System; Antonios G. Karampatzos and Georgios Malos.- The Portuguese Experience of Judge Made Law and the Possibility of Prospective Intentions and Effects; José Manuel Aroso Linhares and Ana Margarida Gaudêncio.- Judicial Rulings with Prospective Effect in Italy; Michele Taruffo.- Part II North-American Jurisdictions.- Retroactivity and Prospectivity of Judgments in American law; Richard S. Kay.- Canada: The Rise of Judgments with Suspended Effect; Lionel Smith.- Part III South-American Jurisdictions.- Judicial Rulings with Prospective Effect in Argentina; Alejandra Rodríguez Galán.- Judicial Rulings with Prospective Effect in Brazilian Law; Humberto Dalla Bernardina de Pinho.- Judicial Rulings with Prospective Effect in Venezuela; Hildegard Rondón de Sansó.- Part IV Asian- Oceanian Jurisdictions.- Judicial Rulings with Prospective Effect in Australia; Justice James Douglas, Eleanor Atkins and Hamish Clift.- Prospective Overruling in Singapore: A Judicial Framework for the Future?; Gary K.Y. Chan.- Questionnaire.