UC Law Journal


Carl D. Ciochon


A recent series of cases decided by the United States Supreme Court point out a classic conflict between individual rights and state interests. The cases revolve around a simple question-whether a state will be required to refund monies collected under an unconstitutional taxing scheme. While the question itself is straightforward, the Court's current approach is characterized by conflict and uncertainty. In McKesson v. Division of Alcoholic Beverages & Tobacco, it declared unanimously that the Due Process Clause of the Fourteenth Amendment requires the states to provide meaningful backward looking relief for any unconstitutional deprivation. But McKesson's seemingly clear mandate leads to a fundamental conflict between the individual taxpayer's right to a remedy and the state's interest in preserving the fisc. In attempting to resolve the dilemma the tax refund cases present, the Court has relied upon its controversial civil retroactivity doctrine to limit state's retroactive liability.

This Note examines the constitutional tax refund cases. The analysis reveals that the use of nonretroactivity in these cases needlessly confuses and fails adequately to address the issues presented. The Note also highlights the intriguing jurisprudential questions these cases raise-the Justices' differing approaches to nonretroactivity in many ways reflect their differing conceptions of the Court's role as constitutional arbiter. Finally, the Note proposes a framework for resolving the dilemma presented in a practical and above-board manner; one that takes account of both the individual's right to a remedy and the state's interest in fiscal stability.

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