New Law, New Bias: Retroactive Application?

Retroactivity in law refers to the application of new legislation to previous cases or events that occurred before the act came into effect. The legality of applying a law retroactively depends on the jurisdiction and the nature of the law. For example, in the United States, the Supreme Court has ruled that ex post facto laws, or laws with retroactive effect, are not inherently prohibited, but that only substantive rulings can be applied retroactively. On the other hand, procedural rules, which govern the manner in which a trial is conducted, are generally not applied retroactively. In the European Union and European Economic Area, Article 7 of the European Convention on Human Rights prohibits ex post facto criminal laws or any other retroactive punitive provisions that are not favorable to individual rights. Similarly, the Mexican Constitution prohibits the retroactive application of law if it is detrimental to a person's rights, but a new law can be applied if it benefits the person.

How laws are made in the US

The process of making laws in the US is not easy and takes a long time. It can begin with anyone proposing an idea, but it must reach a US lawmaker who wants to turn it into legislation. The idea is then developed into a written proposal, called a bill. A member of Congress, either a senator or a member of the House of Representatives, then officially proposes the bill, becoming its sponsor.

The bill is then introduced to either the House or the Senate, where it is assigned a number and officially recorded. It is then sent to a committee, a small group of lawmakers who are experts in a specific area of government. The committee may decide to make changes to the bill before it is passed. If the committee approves the bill, it will move on to the main chamber of the House or Senate for approval. The representatives will discuss and debate the bill and then vote on it. If the bill passes, it will be sent to the other chamber to go through the same process. If it passes there, it will be sent to the president.

The president has several options at this stage. They can sign the bill, in which case it becomes a law. They can do nothing, in which case the bill becomes a law if Congress is in session, but fails if it is not. Or they can veto the bill, sending it back to the House and Senate. If two-thirds of the senators and two-thirds of the House members approve the bill again, they can override the veto and turn the bill into a law.

Only around 5% of bills introduced in Congress become law. The process can be delayed by a filibuster, where a senator extends the debate by giving a long speech.

Contract law and the contra proferentem rule

The contra proferentem rule is a legal doctrine in contract law that guides the interpretation of ambiguous clauses in a contract. It is a principle that dictates that if a clause in a contract is unclear or open to multiple interpretations, it should be read in a way that disfavors the party that drafted, introduced, or demanded the inclusion of that specific clause. The rule is based on the idea that the drafting party is intentionally using ambiguous language to create results that favor their interests.

The contra proferentem rule aims to provide fairness by addressing the misuse of ambiguous language in contracts, especially in the insurance sector. It is often applied when contract terms are unclear and seem to be written in favor of the party that drafted them. The rule can be enforced at the local, state, or federal level and is typically applied when a contract is challenged in court. It serves as a safeguard against the potential misuse of contract language by one party to the detriment of another.

When determining whether the contra proferentem rule should be applied in contract disputes, courts follow a multi-step process. First, they determine if the contract term or clause in question is ambiguous and could potentially lead to confusion. If it is found to be ambiguous, the court's next step is to examine the intent of the drafter to determine whether the ambiguity was intentional and crafted to serve their interests. If there is clear evidence showing no intention to create ambiguity, the contract is interpreted based on that evidence. However, if the clause remains unclear, the contra proferentem rule is applied, favoring the party that did not draft the contract.

The contra proferentem rule is particularly relevant in situations involving standardized contracts or where the parties have unequal bargaining power. It reflects the court's inherent dislike of standard-form contracts, also known as contracts of adhesion, where one party is completely in control of the terms. By encouraging drafters to be clear and explicit, the rule helps reduce the chances of misunderstandings and facilitates judicial interpretation of the contract.

Choice-of-law provisions in contracts

A "choice-of-law" or "governing law" provision in a contract allows the parties to agree that a particular state's laws will be used to interpret the agreement, even if they live in or the agreement is signed in a different state. Choice-of-law provisions are included in contracts to increase predictability and reduce expenses in the event of a dispute. They also facilitate settlement and reduce the cost of dispute resolution by eliminating the need for the court to conduct a choice-of-law analysis.

The selection of the state for jurisdiction can be more important than the choice of law, as that is where everyone will have to go to resolve a dispute. In the case of international cross-border disputes, the court will have to determine whether to apply domestic contract law or the law of the foreign country. When the litigants cannot agree on which law applies, the court will apply its own choice-of-law rules, which vary from state to state.

Choice-of-law provisions might run into problems if they appear in an insurance contract because some states want to ensure their consumer protection laws relating to insurance apply to those within their borders. For example, Massachusetts prohibits choice-of-law provisions in insurance contracts. Additionally, some states have passed laws stating that outbound choice-of-law clauses will not be enforced when they appear in certain types of contracts. For instance, Illinois has adopted a law that invalidates clauses that select the law of another state to govern building and construction contracts.

Courts should always apply the law of the jurisdiction selected in the choice-of-law clause to interpret the language in the clause. However, when a choice-of-law clause selects the "laws" of a particular state, it is unclear whether the parties to the contract also intended to select any relevant provisions of federal law. In many cases, mandatory rules of federal law will apply regardless of party intent.

The legislative process

The first step in the legislative process is the introduction of a bill to Congress. Anyone can write a bill, but only members of Congress can introduce it. Some important bills are introduced at the request of the President. Once a bill is introduced, it is referred to the appropriate committee for review. Bills may be referred to more than one committee and may be split so that parts are sent to different committees. The Speaker of the House may set time limits on committees.

After hearings are completed, the subcommittee will consider the bill in a session known as the "markup" session. The views of both sides are studied in detail, and a vote is taken to determine the subcommittee's action. The subcommittee may report the bill favorably to the full committee, with or without amendment, or unfavorably, or without recommendation. The committee may also suggest tabling the bill or postponing action indefinitely.

If the committee votes to report the bill favorably to the House, it may do so with or without amendments. If extensive amendments are approved, the committee may introduce and report a new bill incorporating those amendments, known as a "clean" bill. The new bill is introduced (usually by the committee chairman), and after referral back to the committee, is reported favorably to the House by the committee.

After the bill is reported, the committee staff prepares a written report explaining why they favor the bill and why they wish to see their amendments adopted. Committee members who oppose a bill may write a dissenting opinion in the report. The report is sent back to the whole chamber and is placed on the calendar. In the House, most bills go to the Rules Committee before reaching the floor. The committee adopts rules that will govern the procedures under which the bill will be considered by the House.

To pass legislation and send it to the President for his signature, both the House and the Senate must pass the same bill by majority vote. The President may veto bills passed by Congress, but Congress may override a veto by a two-thirds vote in both the Senate and the House of Representatives. If Congress is in session and the President takes no action within 10 days, the bill becomes law. If Congress adjourns before 10 days are up and the President takes no action, the bill dies and Congress may not vote to override. This is called a pocket veto.

Congress's powers

The US Constitution grants Congress the authority to make laws, and it is considered the central law-making body. Congress can also override presidential vetoes. The Senate has the power to confirm Supreme Court appointments, and Congress can impeach and try members of the federal judiciary. Congress can also change the size, structure, and jurisdiction of the courts.

Congress has the power to lay and collect taxes, duties, imposts, and excises, and to pay the debts of the United States. It can borrow money, regulate commerce with foreign nations, and regulate commerce among the states and with Indian tribes. Congress can establish uniform rules of naturalization and uniform laws on bankruptcy. It can also coin money, regulate the value of money, and fix the standard of weights and measures.

Congress has the power to raise and support armies, and to declare war. It can also grant letters of marque and reprisal, and make rules concerning captures on land and water. Congress can also establish and organize militias.

Congress can promote the progress of science and the useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries. It can also define and punish piracies and felonies committed on the high seas, and offences against the law of nations.

Congress has the power to investigate the misuse of federal funds and abuses of power, and to gather information needed to create new legislation. It can also establish post offices.

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