Document Type

Article

Publication Title

Harvard Law Review

Abstract

This Note takes up Justice Harlan's admonition that "[r]etroactivity must be rethought."' In Part II, the Note begins by tracing the jurisprudential font of Teague's test for retroactivity - the reasoning of Justice Harlan's opinions in Desist v. United States and Mackey v. United States, which the Teague Court explicitly adopted in articulating the test for retroactive application of procedural rules. The Note argues that Justice Harlan's concerns in Mackey did not include the normative considerations that properly govern the retroactive application of new rules on collateral review. Because Mackey's concern with what is "fundamental" is as analytically unavailing in the habeas context as it was during the incorporation debate, the Note argues that the Court should avoid reliance on Mackey's analysis and instead focus on Justice Harlan's emphasis in Desist on constitutional rules of criminal procedure that substantially enhance the accuracy of judgments of conviction.

First Page

1642

Volume

118

Publication Date

2005

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