Comparing the Prospective Effect of Judicial Rulings Across Jurisdictions

Author: Eva Steiner
Publisher: Springer-Verlag
ISBN: 9783319161747
Published In: May 2015
Format: Hardback
Jurisdiction: Switzerland ? Disclaimer:
Countri(es) stated herein are used as reference only

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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.

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 Sebastien van Drooghenbroeck

Changing the Case law Pro Future in Germany - A Puzzle of Legal Theory and Practice