[Congressional Record Volume 145, Number 8 (Tuesday, January 19, 1999)]
[Senate]
[Pages S432-S433]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. THURMOND:
  S. 31. A bill to amend title 1, United States Code, to clarify the 
effect an application of legislation; to the Committee on the 
Judiciary.


          to clarify the application and effect of legislation

  Mr. THURMOND. Mr. President, I rise today to introduce a bill to 
clarify the application and effect of legislation which the Congress 
enacts.
  My act is simple and straightforward. It provides that unless future 
legislation expressly states otherwise, new enactments shall be applied 
prospectively and shall not create private rights of action. This will 
significantly reduce unnecessary litigation and court costs, and will 
benefit both the public and our judicial system.
  The purpose of this legislation is to tackle a persistent problem 
that is easy to prevent. When Congress enacts a bill, the legislation 
often does not indicate whether it is to be applied retroactively or 
whether it creates private rights of action. The failure of the 
Congress to address these issues in each piece of legislation results 
in unnecessary confusion and uncertainty. This uncertainty leads to 
lawsuits, thereby contributing to the high cost of litigation and the 
congestion of our courts.
  In the absence of clear action by the Congress on its intent 
regarding these critical threshold questions, the outcome is left up to 
the courts. Whether a law applies to conduct that occurred before the 
effective date of the Act and whether a private person has been granted 
the right to sue on their own behalf in civil court under an Act can be 
critical or even dispositive of a case. Even if the issue is only one 
aspect of a case and it is raised early in a lawsuit, a decision that 
the lawsuit can proceed generally cannot be appealed until the end of 
the case. If the appellate court eventually rules that one of these 
issues should have prevented the trial, the litigants have been put to 
substantial burden and unnecessary expenses which could have been 
avoided.
  Currently, courts attempt to determine the intent of the Congress in 
deciding the effect and application of legislation in this regard. 
Thus, courts look first and foremost to the statutory language. If a 
statute expressly provides that it is retroactive or creates a private 
cause of action, that dictate is followed. Further, courts apply a 
presumption that legislation is not retroactive. This is an entirely 
appropriate, longstanding rule because, absent mistake or an emergency, 
fundamental fairness generally dictates that conduct should be assessed 
under the rules that existed at the time the conduct took place. There 
is a similar presumption that the Congress did not intend to create 
rights beyond those that it expressly includes in its legislation.
  If the intent of Congress is not clear from the statute, courts 
generally look

[[Page S433]]

to legislative history, statutory structure, and possible other sources 
of Congressional intent. This is where the unnecessary complexity and 
confusion is created. Sources other than statutory language are to 
varying degrees less reliable in predicting Congressional intent. 
They are much more difficult to interpret and may even be 
contradictory. The more sources for the courts to analyze and the more 
vague the standard for review, the more likely courts will reach 
different results. Under current practice, trial courts around the 
country reach conflicting and inconsistent results on these issues, as 
do appellate courts when the issues are appealed.

  The problem of whether legislation is retroactive was dramatically 
illustrated after the passage of the Civil Rights Act of 1991. District 
courts and courts of appeal all over the country were required to 
resolve whether the 1991 Act should be applied retroactively, and the 
issue ultimately was considered by the Supreme Court. However, by the 
time the Court resolved the issue in 1994, well over 100 lower courts 
had ruled on this question and, although most had not found 
retroactivity, their decisions were inconsistent. Countless litigants 
across the country expended substantial resources debating this 
threshold procedural issue.
  All this litigation arose from a statute that contained no language 
providing that it be retroactive. To conclude that the provision of the 
statute in issue in the case was not to be applied retroactively, the 
majority opinion of the Court took 39 pages in the United States 
Reporter to explain why. It undertook a detailed analysis that 
demonstrates the unnecessary complexity of the current standard. It is 
no wonder that some Supreme Court justices argued in this case that a 
court should look only to whether the language of the statute expressly 
provides for retroactivity. That is what I propose. If my law has been 
in effect, the litigation would have been averted, while the outcome 
would have been exactly the same as the Supreme Court decided.
  Under my bill, newly enacted laws are not to be applied retroactively 
and do not create a private right of action, unless the legislation 
expressly provides otherwise. It is important to note that my bill does 
not in any way restrict the Congress on these important issues. The 
Congress may override this presumption or create new private rights of 
action.
  One United States District Judge in my State informs me that he 
spends at least 10 percent of his time on these issues. It is clear 
that this legislation would save litigants and our judicial system 
millions of dollars by avoiding a great deal of uncertainty and 
litigation.
  Mr. President, if we are truly concerned about relieving the backlog 
of cases in our courts and reducing the costs of litigation, we should 
help our judicial system to focus its limited time and resources on 
resolving the merits of disputes, rather than deciding these 
preliminary matters. We hear numerous complaints about overworked 
judges and crowded dockets. This is a simple and straightforward way to 
do something about it. The Congress can help reduce the Federal 
caseload and help simplify the law. We should act on this important 
reform promptly.
  Mr. President, I ask unanimous consent that the bill be printed in 
the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                 S. 31

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. RULE OF CONSTRUCTION RELATING TO RETROACTIVE 
                   APPLICATION OF STATUTES AND THE CREATION OF 
                   PRIVATE CLAIMS AND CAUSES OF ACTION.

       (a) In General.--Chapter 1 of title 1, United States Code, 
     is amended by adding at the end the following:

     ``Sec. 8. Rules for determining the retroactive effect of 
       legislation and the creation of private claims and causes 
       of action

       ``(a) Unless a provision included in the Act expressly 
     specifies otherwise, any Act of Congress enacted after the 
     effective date of this section shall--
       ``(1) be prospective in application only; and
       ``(2) not create a private claim or cause of action.
       ``(b) In applying subsection (a)(1), a court shall 
     determine the relevant retroactivity event in an Act of 
     Congress (if such event is not specified in such Act) for 
     purposes of determining if the Act--
       ``(1) is prospective in application only; or
       ``(2) affects conduct that occurred before the effective 
     date of the Act.''.
       (b) Technical and Conforming Amendment.--The table of 
     sections for chapter 1 of title 1, United States Code, is 
     amended by adding after the item relating to section 7 the 
     following:

``8. Rules for determining the retroactive effect of legislation and 
              the creation of private claims and causes of action.''.
                                 ______