Prospective Overruling - It's About Time

Abstract

This article explains how the common law operates to produce retrospective law and how this is in turn premised upon certain jurisprudential assumptions. The author begins by assessing the prospect that ‘prospective overruling’ may provide a solution to the problem of retrospective common law, before providing an argument in support of appellate courts prospectively overruling prior precedents. The article concludes that prospective overruling would balance the impetus to modify the common law, on one hand, with the presumption against enacting retrospective law, on the other.