Reliance Interests Research Articles

"Trust as a Reliance Interest: Administrative Law and Financial Regulation in the United States and its Comparative Implications"

This article argues that regulatory trust is established and maintained through a relationship between stakeholders and the government, with the former group of organizations and individuals relying on their understanding of this relationship. Federal administrative law in the United States makes the expectations about the regulatory environment on which stakeholders rely more meaningful by granting stakeholders the right to bring actions in court when their expectations are being (or seem likely to be) dashed. To make this argument, I begin with the threshold question of how courts serve as a forum for voicing claims of distrust in regulatory regimes. I then consider the importance of political accountability over regulatory decision making, illustrating the concerns about the structure of agencies that regulate consumer and housing finance. Next, I will discuss a second major challenge to trust that arises from the extent to which the authority of regulatory agencies is circumscribed by legislation. Along the way, I draw on the case law presented to argue that problems of trust in financial regulation center on the reliance interests of stakeholders. Finally, the argument suggests a research agenda into trust as a reliance interest that I sketch in the conclusion.

实质合并重整程序适用的视角矫正与标准再造

To achieve Pareto optimality and substantive fairness, the practice of substantive consolidation in bankruptcy reorganization in China is needed. However, after analyzing the legal documents and judicial cases in the past three years, it can be seen that there are problems in the application, such as cognitive dislocation and theoretical conflicts. Moreover, there are deficiencies in the standard for judging whether the proceeding is applicable or not, such as vague meaning and unclear relationship, and there is a relative lack of systematic thinking. Therefore, on the one hand, a clear conceptual distinction should be made between the substantive consolidation from the perspective of bankruptcy law and the corporate merger in the field of company law. Besides, the contradictions between substantive consolidation and the traditional theoretical principles like bankruptcy petition doctrine, creditor’s reliance interests, and corporate personality independence should be resolved through methods which contain interest measurement and perspective shifting. On the other hand, it is necessary to construct a standard system with objective mode and subjective mode for determining whether the proceeding should be applied, so as to respond to different judicial needs. Furthermore, the objective mode should be detailed and strict, and it can be refined into three parts: formal requirement, necessity requirement and feasibility requirement. The subjective mode is based on the unanimous and real volition of the relevant stakeholders, which fully respects the freedom of the parties to dispose of their rights.

Reading Regents and the Political Significance of Law

Reading Regents and the Political Significance of Law

Choice of Law and Time

Choice of law is usually thought of as a problem of law across geography, of how laws apply to persons and events not entirely within a state’s boundaries. But another dimension to the choice of law problem is that of time. In cases wholly domestic to a single state, this temporal issue appears when a court considers whether a change in law has retroactive application. But changes in law occur in interstate cases as well. Moreover, the facts relevant to a choice of law analysis may change between the time of the underlying events and the litigation. Does the court consider facts as they exist at the time of litigation or are the facts to be fixed as of the time of the underlying events? These questions appear in three contexts: First, the state whose law is to apply under a choice of law rule may undergo change, and the sovereign currently in force is not the same one that existed at the time of the events leading to the litigation. Second, the state remains the same but it has changed its law. Third, the facts relevant to choice of law may change over time. By drawing these three contexts together, one can get a sense of the larger problem of choice of law and time. In general, the question is whether rights and obligations of the parties should be fixed, anchored to a definite point in the past, or allowed to float and change over time. No single overarching solution is available, but the relevant factors are the nature of the underlying issue, the choice of law approach the court has taken, and the extent to which the policy demands of the present are impaired as compared to the impairment of the expectations and reliance interests of the parties who acted in the past.

Geese, Ganders, and Sir Isaac Newton: Examining the Potential Impact of DHS v. Regents and Department of Commerce v. New York on Rescissions of Agency Actions

Agency actions, like objects in motion, resist being reversed. That resistance is administrative inertia and is measured by the amount of effort an administration must expend to reverse it in compliance with the APA. The principle of stare decisis implies that the amount of effort that one administration must expend to reverse a predecessor’s action ought to be constant across administrations. DHS v. Regents and Dep't of Commerce v. New York, however, added mass to certain regulatory actions by requiring that, before an agency may rescind an action that confers a benefit, the agency must separately consider each part of a policy, articulate granular and specific decisions for rescission, consider reliance interests and alternatives, and ensure that the rationale is directed at a concrete outcome and that the record shows it. This article sets about identifying those agency actions that have had their administrative mass increased and measuring just how much more force is now needed to reverse them. It then applies those observations to the Biden Administration’s aggressive efforts to rescind various Trump-administration actions. The article concludes that if the courts apply these two decisions to the Biden Administration in the same way that the Supreme Court applied them to the Trump Administration, the Biden Administration will likely find it much harder to rescind many Trump-Administration policies than it was for past presidents to rescind the policies of their predecessors. This increased administrative inertia will be most noticeable in agency actions that loosened environmental restrictions and relaxed regulatory burdens on commerce.

Zombie Chevron: A Celebration

Chevron, U.S.A., Inc. v. National Resources Defense Council, Inc., the foundation for much of contemporary administrative law, is under siege. Several members of the Supreme Court have suggested that they would like to overrule it. Under standard principles of stare decisis, doing that would be a serious mistake. Even if Chevron was wrongly decided, overruling it would create an upheaval—a large shock to the legal system, producing a great deal of confusion, more conflicts in the courts of appeals, and far greater politicization of administrative law. For example: What would happen to the countless regulations that have been upheld under the Chevron framework? Would they be newly vulnerable? More fundamentally,, a predictable effect of overruling Chevron would be to ensure a far greater role for judicial policy preferences in statutory interpretation and far more common splits along ideological lines. There is also the question of reliance interests: For decades, Congress has legislated against the background set by Chevron, and the resulting statutes reflect an understanding that the Court’s framework will apply. Though the argument for overruling Chevron is unconvincing, its critics have legitimate concerns. Those concerns should be addressed by (1) insisting on a fully independent judicial role in deciding whether a statute is ambiguous at Step One; (2) invalidating arbitrary or unreasonable agency interpretations at Step Two; and (3) deploying canons of construction, including those that are designed to serve nondelegation functions and thus to cabin executive authority. The result would not quite be Zombie Chevron, but it would be close to that, and the most reasonable path forward.

The Court's Discretion in Relation to the Part 26A Cram Down

This article explains that a fundamental purpose of the Court’s discretion whether to exercise its cram down power under the new UK Companies Act Part 26A process would be to ascertain whether the dissenting class was promised a and distribution of the restructuring surplus, i.e. the value expected to be preserved and perhaps created by the proposed plan itself. The concept is familiar from US Chapter 11 practice, where the courts are required to ensure a “fair and equitable” treatment of members of the dissenting class. In the US, however, the much-misunderstood Absolute Priority Rule (‘APR’) supposedly governs this exercise. This article shows that the APR is untenable and is honoured more in breach in US practice than in observance. Similarly, the cram down powers under the new Dutch and the proposed German restructuring regimes also envisage ‘exceptions’ to the APR which are likely in practice to swallow the rule. Understanding why the APR cannot and should not govern the distribution of the restructuring surplus goes a considerable way to establishing a more rational starting point. An important consideration here would be whether the plan allocates the restructuring surplus with due regard to the likely contribution to the creation of that surplus by members of the dissenting class. This contribution is proxied by the ratio of returns in the “relevant alternative” of dissenting class members and any junior classes to whom returns are proposed under the plan. For example, if dissenting class members would receive 40% on their claims in the relevant alternative while members of a junior class would receive 20%, then this 2:1 ratio is presumptively the just and equitable share of the restructuring surplus of members of the two classes. Any departures from this relative priority would likely require justification by reference to one or more significant restructuring goals of the sort recognised in US jurisprudence, such as preserving the debtor’s business as a going concern, making members of the crammed down class better off, and protecting reliance interests. The article also considers the appropriate treatment of “new money” and “sweat equity”, and of classes excluded from the plan.

On Overruling Chevron

Chevron, U.S.A., Inc. v. National Resources Defense Council, Inc., the foundation for much of contemporary administrative law, is under siege. Several members of the Supreme Court have suggested that they would like to overrule it. Under standard principles of stare decisis, doing that would be a serious mistake. Even if Chevron was wrongly decided, overruling it would create an upheaval—a large shock to the legal system, producing a great deal of confusion, more conflicts in the courts of appeals, and far greater politicization of administrative law. For example: What would happen to the countless regulations that have been upheld under the Chevron framework? Would they be newly vulnerable? More fundamentally,, a predictable effect of overruling Chevron would be to ensure a far greater role for judicial policy preferences in statutory interpretation and far more common splits along ideological lines. There is also the question of reliance interests: For decades, Congress has legislated against the background set by Chevron, and the resulting statutes reflect an understanding that the Court’s framework will apply. Though the argument for overruling Chevron is unconvincing, its critics have legitimate concerns. Those concerns should be addressed by (1) insisting on a fully independent judicial role in deciding whether a statute is ambiguous at Step One; (2) invalidating arbitrary or unreasonable agency interpretations at Step Two; and (3) deploying canons of construction, including those that are designed to serve nondelegation functions and thus to cabin executive authority.

Rescinding Inclusion in the Administrative State: Adjudicating DACA, the Census, and the Military’s Transgender Policy

The rescission of programs, policies, and practices by an incoming administration often raises legal questions. However, answers are harder to find. That is the case with the whirlwind of rollbacks proposed and implemented by the Trump administration, in areas from transgender persons in the military to asking a citizenship question on the census and terminating Deferred Action for Childhood Arrivals (DACA) and Temporary Protected Status (TPS). This Article provides a lens for assessing the legality of these seemingly precipitous moves. Viewing these abrupt paradigm shifts as threshold rescissions clarifies the legal landscape. Threshold measures govern baseline access to goods and institutions, including military service, political representation, and living and working legally in the United States. Under current case law, changes to many threshold measures would be purely discretionary, subject to very relaxed judicial review or no review at all. This Article suggests that reliance interests in threshold measures warrant a more robust judicial role in assessing the means-ends fit of proposed rescissions, equivalent to intermediate scrutiny in equal protection cases. The prior factfinding and legislative support invested in reforms slated for rescission further justify more probing judicial inquiry. The approach urged here also supplies a welcome normative dimension to scholarly discussions of administrative constitutionalism. Scholars have highlighted agency readings to expand individual rights. President Obama’s administration did this in the context of ending the military’s ban on accession and retention of transgender service members. The Trump administration now wishes to partially roll back that inclusive measure. Current officials’ approach to transgender accession and retention reveals that administrative constitutionalism is contested terrain: one administration’s salutary expansion of individual rights strikes a new administration as defaulting on responsibility, overreaching on power, and interfering with the rights of other parties. There may be common ground, including former Defense Secretary Mattis’s decision to grandfather in transgender service members who acted in reliance on the Obama administration’s reform. However, the intermediate scrutiny applied here would invalidate most other components of the Defense Department’s transgender rollback, and would require further process and explanation before upholding a citizenship question on the census or the termination of DACA and TPS. In addition, the approach taken here harmonizes with the Supreme Court's finding in the census citizenship-question case that the Commerce Department's reliance on Voting Rights Act enforcement was pretextual. Analyzing the means-ends fit of threshold rescissions promotes more effective deliberation about abrupt changes, while allowing a new administration to refine its rationale.

Stepping Back onto the Escalator: Answering the D.C. Circuit’s Remand of the Pole Attachment Question

In the recent case of Mozilla v. FCC, the D.C. Circuit evaluated the legal legitimacy of the Federal Communications Commission’s 2018 Restoring Internet Freedom Order (“RIFO”). The question at bar was the agency’s decision to reverse the imposition of Title II common carrier regulation on the Internet dictated by the Obama-era 2015 Open Internet Order and to return the classification of broadband Internet access services back to a Title I “information” service. After review, the D.C. Circuit agreed. But while the court upheld the Commission’s decision to place broadband back under the umbrella of Title I, the court also held that by deliberately placing “broadband outside of its Title II jurisdiction” the Commission had essentially abdicated all legal authority — express and ancillary — over information services. The D.C. Circuit’s “statutory abdication” logic created a ripple effect across a wide variety of legal action items the Commission sought to resolve in its RIFO. One of these issues was the question of who is eligible to take advantage of the pole attachment regime contained in Section 224 of the Communications Act, ultimately remanding the issue to the FCC for further consideration. This paper reviews the court’s reasoning and sets forth some suggestions about how the Commission should address the court’s concerns on remand. In particular, the paper explains that conspicuously absent from the Majority’s pole attachment discussion is the recognition that that prior to the 2015 Open Internet Rules broadband-only carriers were foreclosed from the statutory regime under Section 224. Thus, the correct legal question on remand is not whether the RIFO deprived broadband-only carriers of inalienable “statutory rights” as the court suggests, but rather whether these carriers had valid reliance interests that were harmed by the Commission’s choice to reverse the 2015 Open Internet Order two years later? According to the D.C. Circuit’s own opinion in Mozilla, the answer to that question is a resounding “No.”

Cohabitation, Registration, and Reliance: Creating A Comprehensive and Just Scheme for Protecting the Interests of Couples' Real Relationships

This paper argues that courts and legislatures should recognize and protect adult relationships other than marriage, in two ways. First, couples in committed, cohabitating relationships should be protected when their relationship dissolves—even if they are not formally married. The law in this area is currently inconsistent and confusing, and should be cleaned up to reflect the reality of the lives of committed couples in need of legal protection. Second, all states should establish a registration scheme along the lines of Colorado's designated beneficiary law, which allows couples to flexibly design their legal relationship. This status should include specific arrangements about the ownership of property over the course of a long relationship, and should also be expanded to allow people to enter into more than one such relationship at a time, as long as the rights and obligations are not inconsistent. Given the number of couples operating outside of traditional marriage today, these two reforms will increase certainty of legal outcome and better protect the reliance interests of those in committed relationships.

Reliance Interests and Future DACA Litigation

DACA recipients have shown strong reliance interests. The oral argument recently at the Supreme Court left out of the discussion DACA recipients' reliance on form I-821D's instructions, and more specifically its privacy clause, which have the force of law. Since instructions in immigration forms are considered incorporated as part of the federal regulations, they have the force of law. 8 CFR 103.2(a). This point was not considered and should be part of any discussion of DACA-related future litigation. The government's arguments concerning an attempt at limiting liability or judicial review are unpersuasive.This short article discusses the ramifications of these points for future DACA litigation.

Culpa in Contrahendo: Tortious Liability, Breach of Contract or an Autonomous Legal Instrument?

The legal character of contract negotiations is much debated and different answers are given to the question whether disloyal behaviour committed during unsuccessful contract negotiations can be met by contractual or tort law remedies or, as a third possibility, some unique sanctions developed for this certain semi-contractual situation only. In this article, it is argued that an agreement to negotiate a contract is a contract in itself, although a very non-binding one – a pre-contract. Subsequently, breach of the parties´ duties relating to the pre-contract might be sanctioned by using contractual remedies. Most of the usual remedies, however, are not relevant, except for damages. These may be measured according to the principles on expectation interest, but in this specific situation the outcome will be almost identical with damages that are calculated according to the reliance interest. It is of course not possible to claim damages related to the contract that could have been the result if the contract negotiations had been successful.

Madison's Waiver: Can Constitutional Liquidation be Liquidated?

Professor William Baude's recent article Constitutional Liquidation outlines a theory of non-judicial precedent, by which indeterminate constitutional meaning can be liquidated clarified and settled - through a course of deliberate practice by non-judicial public officials. While offering a promising start, Baude must still address several important questions, omitted from his article, to develop the theory into something viable. What do we make of precedents that don't explain their own constitutional justification? How do reliance interests factor into the theory? Can judicial precedents form part of a liquidation, and are they necessary to clarify constitutional meaning? How binding are liquidations? And why object to liquidations that override prior judicial interpretations of constitutional language that, by stipulation, is indeterminate? It is essential for Baude to identify more and better examples: the national Bank controversy, relied on by Baude, raises more questions about liquidation theory than it answers.

Error of Law: An Exception to the Discoverability Principle?

Under Canadian common law, the limitation principle of discoverability applies to errors of fact, but not to errors of law. This error-of-law exception is a problematic doctrine. It appears to resurrect the ostensibly defunct fact/law distinction in civil claims. It stands in contrast to contemporary English precedent on the discoverability of mistakes of law. It controverts the Supreme Court of Canada’s claim that discoverability is a “general rule” for the interpretation of limitation periods on causes of action. And it considerably curtails the reach of the discoverability principle and the potential for plaintiffs labouring under an error of law to benefit from an extended limitation period. In practice, the error-of-law exception may overly curtail rights by protecting those who make legal rules while impeding those who have been harmed by unjust laws. This article develops a revised understanding of the error-of-law rule that strikes a better balance between protecting past reliance interests and vindicating plaintiffs’ rightful positions.

On the Adjustment of Industrial Subsidy Policies in Pilot Free Trade Zones of China

From the perspective of the background and purpose of pilot free trade zones （FTZs） of China, the construction of FTZs should be embodied as the high-level liberalization of investment, trade and finance, as well as the creation of the environment with a fair competition, which also means that the opening level and fair competition level in FTZs should at least be not lower, but rather higher, than those in current international obligations applied in the whole country. However, some industrial subsidy policies in current FTZs are inconsistent with the WTO obligations, or have such potential risks. Specifically, there are some prohibited subsidies in some parts of some FTZs, which directly violate the Agreement on Subsidy and Countervailing Measures （ SCM Agreement”） of WTO. Meanwhile, the national or other local subsidies applicable in FTZs always have the nature of specificity, and some special subsidies for some parts of FTZs have regional specificity or industrial specificity. Not all subsidies with specificity violate the obligations in SCM Agreement, but such kind of subsidies have the risk of violating the obligations. The central government tries to clear the various tax and non-tax subsidies which exist all over the state （of course including those in FTZs）, but hasn’t achieved good effects. Subsidization is one of the important means for the Chinese government to promote economic development, but this kind of the economic management mode of the government has great limitations, which especially leads to an unfair competition. The above problems are related to the understanding of the government itself, the inertia of the government’s economic management, and the close systematic relationship between state-owned-enterprises and the government. Additionally, in pursuit of the achievements in their official career, some local governments may use subsidies without considering the cost or economic rationality. The background and purpose of FTZs as well as the current states of international trade rule of law have decided the necessity and urgency for FTZs to adjust industrial subsidy policies. The external motivation of the establishment of FTZs was to deal with the challenges brought by TPP. China tried to construct FTZs in order to open the gaps, deepen the reform, and raise the level of trade liberalization, so as to dock with the high-level free trade rules in the future and avoid being in a passive position. The United States quitted TPP later, but Sino-U.S. trade frictions were so increasingly intensified that the trade war broke out. Industrial subsidy policies belong to one of the core problems in the trade war. High-level opening-up and business environment with a fair competition are vital to FTZs. The adjustment of industrial subsidy policies is the demand of both performing international obligations and the rule of law of domestic governance. Based on the protection of the reliance interests of recipients, among the subsidies with the violating risks, the existing subsidy contracts with a stipulated time limit should be permitted to perform till their expiration. Transition periods should be set to the contracts originally without a time limit, and these contracts should be permitted to perform till the expiration of the transition periods. New subsidies with violating risks should be prohibited to create. New subsidy measures should be characterized by non-specificity to the greatest extent to avoid the risk of violating the WTO obligations to the maximum extent. The above adjustment originally belongs to a nationwide issue, but FTZs, being the front of the reform and opening up, and taking the mission of exploring replicable and propagable experiences”, should take actions at first in this aspect.

Marital Infidelity and Non-pecuniary Damages for Divorce

One who did an act of infidelity should be legally sanctioned, i.e., he(or she) cannot file for divorce, should pay damages to the other party. This article, which discusses the role relationship between nonpecuniary damages for divorce and division of property, summarizes the following. 1. Non-pecuniary Damages for Divorce and compensation for damages under Article 806(2) of the Civil Act shall be based on the principle of compensating the reliance interest in the sense that it is aimed at the settlement of the marital relationship. In this respect, the compensation ofdamages under Article 806(2) is not liable for illegal acts but liable for damages due to the breach of contract. 2. Legislative, it is desirable to realize the liquidation of property relations through property division. The realization of post-divorce care through divorce compensation and damages under Article 806 (2) is not reasonable in that it reverses the differentiation of institutional functions. It is desirable to provide support after divorce through the separate system. 3. In calculating the non-pecuniary damages for divorce in violation of the duty of fidelity, the amount of alimony shall not be increased for sanctions and deterrence against marital infidelity. Even if considering the sanctions factor in the case of calculating the alimony, it is for the purpose of overcoming the methodological difficulties for the case, but not for the sanction, so the divorce obligation should not be used for sanction. In the future, it will be appropriate to set up a support system after the divorce. Ultimately, it is reasonable that the divorce obligation is directed only to the compensation of the damage caused to the victim. In addition, we expect that objective and specific criteria for the alimony calculation that faithfully reflects the damage occurred to the victim.

Judicial Review in an Age of Hyper-Polarization and Alternative Facts

Hyper-polarization and tendency to embrace “alternative facts” on just one end of the political spectrum has implications for judicial review of administrative agencies. A principal rationale for deferential judicial review is that agencies are technocratic experts. Courts, as non-experts, defer to agencies in part because they trust the integrity of agencies’ technical analyses and judgment. But in an age of hyper-polarization – and at minimum a partial rejection of the scientific method in favor of alternative facts – deference based on agencies’ technical competence is less justified. Instead, courts cannot as readily assume that agencies’ technical, expert, “factual” analyses and conclusions are well-supported. Deference based on technocratic expertise is particularly questionable when an agency shifts its position after an election by rejecting the previous administration’s policy and adopting a dramatically different one. Such policy swings typically occur around focal points of partisan hyper-polarization – it is with respect to such focal point issues that the assumption of technocratic competence is least tenable. Building on this insight about the effects of hyper-polarization, we argue for a re-assessment of how courts review administrative agency changes in policy. While some precedent suggests that agencies face an especially “hard look” when they deviate from past practices or approaches, the United States Supreme Court’s decision in FCC v. Fox Television Stations, Inc. is generally read as establishing the same level of deferential review when an agency shifts course as when it stays the course or addresses an issue for the very first time. And, as a normative matter, scholars have argued for deferential review regarding agency shifts so as to avoid agency “ossification” and bureaucratic inertia – to give effect to the values of the party that just won power because, in a democracy, elections must matter. Nonetheless, we believe that Fox need not – and should not – be read to preclude courts from adopting the kind of judicial review our age of hyper-polarization justifies. In particular, Fox supports courts holding agencies to a high standard in explaining why the facts that a previous administration relied upon are no longer true or relevant or no longer weigh heavily in favor of conclusions reached by the previous administration. Notably, nothing in Fox prevents courts from either seriously questioning an agency about what new facts support its recent policy change, or from interrogating the basis for those newly claimed facts. A broad but fair reading of Fox also supports courts calling on agencies to meaningfully explain how their shifts will affect reliance interests, broadly understood, and how the agencies sought, if they did, to meaningfully take account of those reliance interests. One of our goals here is to rebut the claim recently made by Trump’s EPA that current case law allows an agency almost unlimited discretion to discard the rules adopted during a previous Presidential Administration.

Property, Sovereignty, and the Public Trust

AbstractGenerally, in liberal democratic systems, it is assumed that government should forbear from interference with existing individual property entitlements. It is assumed that existing individual property entitlements should be respected, with government reluctant to interfere. Despite the ubiquity of this assumption, the theoretical underpinning for it is not obvious. A sovereign must respond to the needs of all of the members of the greater community for which it speaks. In view of this obligation, irrevocably assigning property rights to some, and not to others, is an inherently troublesome proposition. In this Article, the reasons for this state of affairs are examined. The conclusion is reached that conventional theories advanced by courts and commentators for government forbearance — such as protecting individual reliance interests, or advancing other independent policies — fail to explain the forbearance phenomenon. A more convincing reason can be found in a public fiduciary theory of government. However, recognition of this reveals that the property/sovereignty relationship is far more complex than a simple forbearance model would dictate. In fact, it mandates — in some circumstances — government nonforbearance, as well.

Over the Threshold of Constitutional Adjudicative Retroactivity

After a period of experimentation, the Supreme Court decreed that its constitutional decisions overruling prior precedents or applying new legal rules to the parties govern all pending and future adjudicative proceedings on direct review, even if the underlying operative events occurred under a different legal framework. But this understanding of the temporal boundaries of legal change is potentially unsettling in some circumstances after the Supreme Court’s holding in Obergefell v. Hodges, 135 S. Ct. 2584 (2015), that laws excluding same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples are invalid. The application of Obergefell to retroactively backdate same-sex relationships into ceremonial or common law marriages in certain contexts has the potential to disrupt settled understandings and expectations, such as in property transactions with third parties or in divorce actions predicated on the parties’ cohabitation beginning and ending before legal recognition was afforded to their union.Building on the insights of prior scholars, this Article constructs a more comprehensive typology of the institutional, remedial, and procedural doctrines that serve to protect reliance, fairness, and efficiency interests in a regime of retroactive application of judicial decisions. Strategic employment of these doctrines can safeguard settled reliance interests while optimizing utilitarian benefits during a period of legal transition. The Article proceeds to evaluate potential retro-activity issues facing same-sex marriages in light of the proposals, demonstrating that remedial and procedural doctrines such as judgment scope, declaratory breadth, limitations periods, and judgment finality, in conjunction with the Court’s prior institutional incrementalism on same-sex marriage, can secure settled expectations while fulfilling the promise of marriage equality.