Retro Lit
or Be Careful What You Read
I recently saw a reference in one of my myriad news feed to something called, Retro Lit. I assumed it was short for Retrospective Literature, which I also assumed would be a sub-genre of romance writing in which the stories take place in the prehistoric past. So, I went to the local library and found a surprising assortment of such categorical classics as:
The Carnal Cave by Glynis McGillicuddy, in which a cavemen lures a nubile young woman, clad only in a skimpy Mammoth skin, into his cave with the promise of showing her his parietal art.
Paleolithic Passion by Granola Montgomery, in which a cavemen lures a nubile young woman, clad only in a skimpy Mammoth skin, into his cave with the promise of showing her his stone tools.
The Bronze Barbarian by Mildred Gooseberry, in which a cavemen lures a nubile young woman, clad only in a skimpy Mammoth skin, into his cave with the promise of showing her his sculpting.
The Iron Cad by Ernestine Cornish, in which a cavemen lures a nubile young woman, clad only in a skimpy Mammoth skin, into his cave with the promise of showing her his smelter.
Because I wanted to verify the correctness of my assumption, I checked out all four of those books, took them home, and read each of them in its entirety (after covering them with the brown shopping-bag book covers we used to make in school to keep from getting killed offending Anne’s more delicate sensibilities.) After going back to the library for eight or a dozen more books of Retro Lit (just be sure), I went back to the news item that initially piqued my curiosity and found something in there about the law. Since it had nothing to do with obscenity law, my curiosity was piqued again but not as much as it had been about my first assumption.
After further examination, I determined the mention I saw to Retro Lit had actually been referring to Retrospective Litigation.
Back to the Future
For those who don’t happen to be up on the procedural parlance of the law this week, retrospective litigation refers to legal proceedings in which laws, rules, judicial decisions, feelings, opinions, or contemporary societal norms are applied to events or actions that occurred before the laws, rules, judicial decisions, feelings, opinions, or contemporary societal norms were enacted, issued, or oiled in response to squeaky wheels. This concept is central to determining whether a party can be held liable for past conduct under a new or changed legal standard.
Retrospective litigation shouldn’t be confused with retroactive litigation. The former refers to looking back at past events but applying new rules only to future consequences such as changing remedies, modifying procedural rules, or caving to societal pressure from the Grievance Industry or Professional Victims Groups. The latter refers to applying past events and to criminalize acts, language, or thoughts that were previously legal before the advent of the Grievance Industry or Professional Victims Groups. Retroactive litigation is prohibited under the U.S. Constitution, which doesn’t mean the Grievance Industry or Professional Victims Groups won’t keep taking cracks at it.
The cases of retrospective litigation we’re tracking here at the O’Brien Legal Liabilities Investigative Enterprise (OLLIE) include:
The suit PETA filed against the band, Toto, for animal cruelty and unlawful restraint over its 1978 song, “Hold the Lion”.
The class action the Reef Ball Foundation filed against the National League of Cities for prohibiting the placement of reef balls in public swimming pools.
The class action subscribers to Popular Mechanics filed against the magazine for not writing anything about mechanics anymore.
The counter suit filed by the Estate of Jimi Hendrix against The Nationalist Social Club (NSC-131 or NSC) in response to the suit NSC-131 filed against the Estate for the allegedly gay lyrics in “Purple Haze”: “Excuse me while I kiss this guy.”
The suit American Atheists filed against my hometown of Meriden, Connecticut, for putting up this memorial to Abraham Lincoln that excerpts Lincoln’s Gettysburg Address, which refers to, “This nation, under God.”
OLLIE, in conjunction with CRACK (Crackpot Reactionaries Against Certifiable Knowledge), will keep you abreast of other such suits as they’re pressed.
Real Life
Retroactive litigation derives from the 1987 case of Griffith v. Kentucky, in which the U.S. Supreme Court reversed the Kentucky Supreme Court’s upholding of Randall Lamont Griffith’s 1982 conviction for first-degree robbery (enhanced to 20 years as a persistent felony offender) and remanded the case for reconsideration under the newly established Batson v. Kentucky rule (1986) on retroactive application. The remand required the Kentucky courts to determine if the prosecutor’s decision to remove black potential jurors from the jury pool (peremptory challenge) violated equal protection and, if so, whether that warranted a new trial.
Batson v. Kentucky established a new rule prohibiting prosecutors from using peremptory challenges to exclude potential jurors solely based on race, allowing defendants to make a prima facie showing of discrimination that shifts the burden to the prosecution for a neutral explanation.
But Griffith’s conviction was affirmed by the Kentucky Supreme Court under the older standard from 1965’s case of Swain v. Alabama. Robert Swain, a black man, was convicted of rape and sentenced to death by an all-white jury. The United States Supreme Court case addressed the systematic exclusion of black jurors, due to the prosecution’s use of peremptory challenges to remove all black individuals from the jury pool. The Court upheld Swain’s conviction 6-3. So, Batson v. Kentucky notwithstanding, it didn’t free Randall Lamont Griffith.
If that makes the slightest bit of sense to you, God bless you.
Subsequent to Griffith v. Kentucky, an apparently important article appeared in Columbia Law Review entitled, “CRUEL TIMING: RETROACTIVE APPLICATION OF STATE CRIMINAL PROCEDURAL RULES TO DIRECT APPEALS”. You can tell it’s supposed to be important because the title is in all capital letters. The article hypothesizes two similar cases that have different outcomes based on timing, as well as state and federal law.
From the introduction:
Carla Carlson and Mark Marks are both convicted of murder on similar evidence. Both appeal. Marks’s appeal is heard first. The state’s highest court reverses Marks’s conviction and creates a new rule that the type of evidence used to convict Marks and Carlson is inadmissible because it was discovered through police conduct that violated state law. The remaining evidence is insufficient to warrant a conviction, so the prosecution dismisses Marks’s case and he is released from custody. Then Carlson’s appeal is heard, and she claims the appellate court should apply this new rule to require the same relief as Marks received. If the new rule is rooted in the U.S. Constitution, the court will apply it to Carlson’s appeal. But if the rule is rooted in state law, most courts will likely reject Carlson’s request and uphold her conviction, even though under current law Carlson’s conviction was based on inadmissible evidence and her conviction is no different from Marks’s, except in that it was not reversed. The extent of a new criminal procedural rule’s retroactive effect is thus tied to the rule’s source: federal or state law. Carlson is denied the benefit of a new state-law rule because her conviction was both too early and too late. Had the state’s highest court heard Carlson’s case before Marks’s, Carlson would go home free and not Marks. If Carlson’s trial occurred after the new rule’s announcement in Marks’s case, the rule would apply to Carlson’s trial in the first place. Carlson suffers only because her trial happened in this exact timeframe.
The article is 20,293 words long. If you read it and derive any coherent substance from it, one of three things must be true:
You’re an attorney.
You’re not an attorney, and you pretend to understand it.
You’re an attorney, and you pretend to understand it.
You can, of course, read anything you like. But if I were you, the Retro Lit I’d stick to would be Retrospective Literature, not Retroactive Litigation. And if you’re unfamiliar with the sub-genre, you might want to start with something relatively tame like The Naughty Neanderthal by Petunia Grosbeak. It’s better than reading the law.
Some things take a little more getting used to than others.