Within American society, there is a general sense that changing the rules after the game has been played is unfair. While state legislatures more often enact prospective legislation, they nevertheless still regularly engage in retroactive civil lawmaking. In essence, state legislatures are changing the rules after the game has been played. Most Americans inaccurately assume such measures are unconstitutional under the federal constitution. Although several provisions of the United States Constitution offer potential sources of constitutional constraint upon retroactive civil lawmaking, ultimately, as they have been interpreted by the United States Supreme Court, these protections are extremely narrow, largely hollow, or both. This article demonstrates the extremely limited nature of the protection afforded by the federal constitution as a restraint upon retroactive civil lawmaking by state legislatures. Having done so, the article next explores why lawyers nevertheless continue to pursue federal constitutional arguments while failing to advance claims that state legislatures’ retroactive civil lawmaking is unconstitutional under their respective state constitutions. After having addressed reasons for the tunnel vision experienced by many lawyers in thinking about constitutional law, the article next addresses the constitutional protections that attorneys will find if they shift their gaze from the United States Constitution to their respective state constitutions and provides a menu of potential options to pursue. In doing so, the article addresses both distinct state constitutional provisions, those with no federal counterpart, and state constitutional provisions that have a federal corollary, but which have been interpreted by state supreme courts as affording greater protections than their federal counterparts. As to the former, this article explores (1) state constitutional clauses that expressly impose general prohibitions upon retroactive/retrospective civil laws, (2) state constitutional open courts/right to remedy clauses, and (3) a number of detailed state constitutional provisions which prevent specific retroactive actions by state governments. As for those provisions with a federal corollary, the article specifically considers the contracts and due process clauses of state constitutions and the manner in which some state courts have interpreted such provisions as providing greater protection against retroactive civil laws. To summarize, while the sense of most Americans that retroactive civil lawmaking is unconstitutional under the federal constitution is misplaced, such measures are in fact often unconstitutional under state constitutions. Citizens and their attorneys are simply looking to the wrong constitution in seeking to invalidate retroactive civil laws enacted by state legislatures. They would find much stronger grounds if they looked to state constitutions instead.
14 Nev. L.J. 63 (2013)