Cite as: 509 U. S. 86 (1993)
O'Connor, J., dissenting
a new pronouncement of law." Griffin v. Illinois, 351 U. S. 12, 26 (1956) (opinion concurring in judgment).
II
I dissented in James B. Beam because I believed that the absolute prohibition on selective prospectivity was not only contrary to precedent, but also so rigid that it produced unconscionable results. I would have adhered to the traditional equitable balancing test of Chevron Oil as the appropriate method of deciding the retroactivity question in individual cases. But even if one believes the prohibition on selective prospectivity desirable, it seems to me that the Court today takes that judgment to an illogical—and inequitable—extreme. It is one thing to say that, where we have considered prospectivity in a prior case and rejected it, we must reject it in every case thereafter. But it is quite another to hold that, because we did not consider the possibility of prospectivity in a prior case and instead applied a rule retroactively through inadvertence, we are foreclosed from considering the issue forever thereafter. Such a rule is both contrary to established precedent and at odds with any notion of fairness or sound decisional practice. Yet that is precisely the rule the Court appears to adopt today. Ante, at 96-97.
A
Under the Court's new approach, we have neither authority nor discretion to consider the merits of applying Davis v. Michigan Dept. of Treasury, supra, retroactively. Instead, we must inquire whether any of our previous decisions happened to have applied the Davis rule retroactively to the parties before the Court. Deciding whether we in fact have applied Davis retroactively turns out to be a rather difficult matter. Parsing the language of the Davis opinion, the Court encounters a single sentence it declares determinative: "The State having conceded that a refund is appropriate in
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