[IP] Re: Does US Constitution SPECIFICALLY PROHBITS the passing of retroactive laws

[David Farber <dave@farber.net>]

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From: Peter Swire [peter@peterswire.net]
Sent: Sunday, February 17, 2008 4:06 PM
To: David Farber
Subject: RE: Does US Constitution SPECIFICALLY PROHBITS the passing of retroactive laws

Dave:

Sorry to sound like a law professor, but this post was incorrect.  I think it is bad policy to have retroactive immunity, but I haven't seen any plausible argument that such immunity is unconstitutional.

1.  The Constitution does prohibit ex post facto laws.  That means that Congress cannot make something *criminal* that was not criminal at the time of the action.  So it would be unconstitutional if Congress now tried to make it a crime for wiretaps that happened earlier.

2.  Another provision in the Constitution about retroactive laws is the Contracts Clause.  That prohibits states from canceling contracts that they earlier entered into.  (The Supreme Court has held that the Due Process Clause similarly prevent Congress from canceling statutes).  So it would be unconstitutional if a state or federal government previously promised to pay the telcos, but now tried to pass a law that said the payment wasn't due.

3.  By contrast, Congress and the states have at various times changed the liability rules for cases that had not yet gone to final judgment.  This has come up, for instance, in the various tort reform statutes.  The legislature gets to state what the liability (or no liability) rule is, and can change that rule with respect to acts that have not been adjudicated yet in the courts.

Peter


Prof. Peter P. Swire
C. William O'Neil Professor of Law
   Moritz College of Law
   The Ohio State University
Senior Fellow, Center for American Progress
(240) 994-4142, www.peterswire.net


-----Original Message-----
From: David Farber [mailto:dave@farber.net]
Sent: Sunday, February 17, 2008 3:09 PM
To: ip
Subject: [IP] Does US Constitution SPECIFICALLY PROHBITS the passing of retroactive laws


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From: Gordon Peterson [gep2@terabites.com]
Sent: Sunday, February 17, 2008 2:34 PM
To: David Farber
Subject: Re: [IP] Re:     BEST LAW MONAY CAN BUY --  Senate votes Telecom immunity

A recent post I read on the subject pointed out that the US Constitution
SPECIFICALLY PROHBITS the passing of retroactive laws... which means
that for the pResident to press for, or for Congress to pass, such
legislation would be a dereliction of their duty and their sworn oath of
office... and thus, in fact, itself (another!) impeachable offense.

--

Gordon Peterson II
http://personal.terabites.com
1977-2007:  Thirty year anniversary of local area networking

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