4 ms·

If that's the case, why wouldn't the ex-post-facto clause in the constitution (Article 1 Section 9) nevertheless protect anybody this bill is meant to open to l

by evanb 11y ago

If that's the case, why wouldn't the ex-post-facto clause in the constitution (Article 1 Section 9) nevertheless protect anybody this bill is meant to open to liability?

HillRat 11y ago
Good question! Calder v Bull held that the ex post facto prohibition does not apply in the civil context, so this can apply retroactively. But you can see why in some legal philosophy quarters Calder is controversial.
- evanb 11y ago
  That seems totally dopey. Isn't the point of ex post facto that if you make a legally-informed decision with understood consequences, those consequences shouldn't be able to change (because you might have made a different decision)? What was the court's logic for differentiating civil and criminal contexts?
  - ant6n 11y ago
    It's not like the US is a Rechtsstaat.
  - rayiner 11y ago
    The opinion in Calder v. Bull is a little opaque, but the academic work I've read on the subject explains that the differentiation was based on the definition of the term "ex post facto law." Calder v. Bull relied on how the term was defined by William Blackstone, an influential English jurist, as well as by various state constitutions.
  - tamana 11y ago
    Civil suits are torts, where there is not much specific, just guidelines for how torts are resolved. A tort is still a tort even if no specific law makes it actionable. By analogy, burglary is illegal, with a statute of limitations. If the statute of limitations change, you can't say "don't prosecute me, when I robbed the guy the law said I would be clear if I hid for 7 years"
    - evanb 11y ago
      That was not my understanding of statute of limitations. Suppose I committed a burglary 10 years ago, and I am out of jeopardy because the statute of limitations has kicked in. Now legislation extends the statute of limitations to 50 years. I am again at risk of indictment? Or the new statute of limitations only binds to burglaries that happen after the law extending to 50 years is enacted?

by evanb 11y ago

If that's the case, why wouldn't the ex-post-facto clause in the constitution (Article 1 Section 9) nevertheless protect anybody this bill is meant to open to liability?

HillRat 11y ago

Good question! Calder v Bull held that the ex post facto prohibition does not apply in the civil context, so this can apply retroactively. But you can see why in some legal philosophy quarters Calder is controversial.

evanb 11y ago
That seems totally dopey. Isn't the point of ex post facto that if you make a legally-informed decision with understood consequences, those consequences shouldn't be able to change (because you might have made a different decision)? What was the court's logic for differentiating civil and criminal contexts?
- ant6n 11y ago
  It's not like the US is a Rechtsstaat.
- rayiner 11y ago
  The opinion in Calder v. Bull is a little opaque, but the academic work I've read on the subject explains that the differentiation was based on the definition of the term "ex post facto law." Calder v. Bull relied on how the term was defined by William Blackstone, an influential English jurist, as well as by various state constitutions.
- tamana 11y ago
  Civil suits are torts, where there is not much specific, just guidelines for how torts are resolved. A tort is still a tort even if no specific law makes it actionable. By analogy, burglary is illegal, with a statute of limitations. If the statute of limitations change, you can't say "don't prosecute me, when I robbed the guy the law said I would be clear if I hid for 7 years"
  - evanb 11y ago
    That was not my understanding of statute of limitations. Suppose I committed a burglary 10 years ago, and I am out of jeopardy because the statute of limitations has kicked in. Now legislation extends the statute of limitations to 50 years. I am again at risk of indictment? Or the new statute of limitations only binds to burglaries that happen after the law extending to 50 years is enacted?