RETROACTIVE LEGISLATION by Daniel E. Troy. Washington: American Enterprise Institute Press, 1998. 127 pp. Paper $14.95. ISBN 0-844-74023-3.

Reviewed by Del Dickson, Department of Political Science, University of San Diego. E-mail: dickson@acusd.edu.

Daniel Troy initially lays out his case against retroactive legislation with considerable skill and clarity. Both his argument and writing style are direct and straightforward.

The book is effectively divided into five substantive sections: (1) a history of retroactive legislation; (2) the moral and economic arguments against retroactive legislation; (3) the constitutional constraints on retroactive legislation; (4) an attack on the Superfund and other retroactive environmental legislation; and (5) some suggested legal and political solutions to the problems of retroactive environmental legislation.

In a nutshell, Troy's thesis is that retroactively applied legislation is contrary to established norms of Anglo-American jurisprudence and should be used sparingly, if at all, in modern lawmaking. Retroactive legislation is bad, he argues, not only because it changes the rules in the middle of the game, but because it penalizes players who were playing by the rules all along-- in effect punishing them for behavior that was perfectly legal at the time. Such laws, Troy argues, are morally and economically wrong, if not constitutionally suspect (and may in some cases amount to a constitutional "taking," requiring compensation). While the Constitution makes numerous references to our historical predisposition against such laws (he cites as examples the ex post facto, attainder, contracts, and due process clauses) modern liberal "redistributionist legislation" in tax law, health care, and especially environmental legislation have ignored these established traditions and increasingly have been applied retroactively, to the particular detriment of business interests.

Troy saves his harshest criticism for environmental legislation aimed at cleaning up toxic waste dumps, the so-called Superfund legislation. He bluntly calls the Superfund laws "the most notorious and egregious example of retroactive legislation" in modern history.

This is an interesting and important topic. It is a constitutional problem that has been underappreciated, if not missed entirely, by most constitutional scholars. For about 2/3 of the way this is an absorbing journey. The real problems come in the final 1/3 of the book, when Troy's loftier academic pretensions get lost and the book becomes a relatively heavy-handed and narrow practitioner's complaint about how hard retroactively applied laws are on his clients.

Troy misses an excellent opportunity to write a memorable and useful book. He goes out of his way to attack environmental legislation, while unfortunately skipping over broader and more significant issues involving non-environmental congressional legislation, retroactive state legislation and retroactive judicial decisions.

Instead, he deflates and trivializes his own argument by reducing his potentially compelling general case against retroactive legislation to the simplistic and questionable argument that environmental polluters (and their insurance companies) ought not to be liable for the consequences of their actions, so long as their dumping of toxic wastes did not break any laws at the time that the pollution first occurred.

This is neither an illogical nor indefensible argument, although it is more controversial and difficult than Troy acknowledges. The real problem is that the author takes a profound and in many ways persuasive general argument against retroactive legislation and attaches it to one of the least compelling examples available. It is roughly akin to arguing against the use of torture because the noise made by screaming victims violates local noise abatement laws and is bad for business. It might be true, but it trivializes and undermines the larger and more important arguments.

There are, as Troy persuasively points out, some serious legal, moral, and economic problems with retroactive legislation. But to go through all of this effort just to buttress an elaborate apology for gross toxic polluters is at best a questionable tactic.

The reasons for this odd approach seem to be both ideological and professional. First, Troy is an enthusiastic member of the Posner-Bork-Scalia school of conservative legal philosophy and an associate scholar at the American Enterprise Institute, all of whom seem to regard environmentalists and environmental legislation as among their favorite soft targets for criticism and scorn. The second reason is that a large part of Troy's law practice at Wiley, Rein and

Fielding involves environmental appellate litigation, representing clients such as the Insurance Environmental Litigation Association-- a consortium of seventeen large insurance companies who defend insurance interests in environmental lawsuits. It appears that Mr. Troy wrote the book less as an academic than as an advocate.

Much of this book is well done, taken on its own terms and given its ultimately limited purpose. If you have a general interest in the topic, it is worth a look. The sections on the history of and constitutional protections against retroactive legislation are especially good. For a more balanced view of the topic, you might also want to check out an interesting round table discussion on retroactive legislation published in the JOURNAL OF LAW POLITICS (13:585, 1997), which includes Mr. Troy as one of a panel of discussants.

If your legal philosophy falls within the narrow ideological range of Dan Quayle, Orrin Hatch (both of whom warmly endorse the book in back-cover blurbs) and Robert Bork (to whom the book is dedicated-- Troy was Judge Bork's law clerk in 1983-84), or if you are planning to write a defense brief for an insurance company that is seeking to escape legal liability for a Superfund cleanup, then this book was written especially for you. For the most part, Daniel Troy lays out his case against retroactive legislation ably and with the conviction of a true believer. Unfortunately, RETROACTIVE LEGISLATION ultimately preaches to the choir, not to the congregation.

Copyright 1995