Cite as: 509 U. S. 86 (1993)
O'Connor, J., dissenting
1
As Justice Kennedy points out in his concurrence, ante, at 111, a decision cannot be made nonretroactive unless it announces "a new principle of law." Chevron Oil, 404 U. S., at 106. For purposes of civil retroactivity, Chevron Oil identifies two types of decisions that can be new. First, a decision is new if it overturns "clear past precedent on which litigants may have relied." Ibid.; ante, at 111 (Kennedy, J., concurring in part and concurring in judgment). I agree with Justice Kennedy that Davis did not represent such a " 'revolutionary' " or " 'avulsive change' " in the law. Ante, at 112 (quoting Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U. S. 481, 499 (1968)).
Nonetheless, Chevron also explains that a decision may be "new" if it resolves "an issue of first impression whose resolution was not clearly foreshadowed." Chevron Oil, supra, at 106 (emphasis added). Thus, even a decision that is "controlled by the . . . principles" articulated in precedent may announce a new rule, so long as the rule was "sufficiently debatable" in advance. Arizona Governing Comm. for Tax Deferred Annuity and Deferred Compensation Plans v. Norris, 463 U. S. 1073, 1109 (1983) (O'Connor, J., concurring). Reading the Davis opinion alone, one might get the impression that it did not announce a new rule even of that variety. The opinion's emphatic language suggests that the outcome was not even debatable. See ante, at 111 (Kennedy, J., concurring in part and concurring in judgment). In my view, however, assertive language is not itself determinative. As The Chief Justice explained for the Court in a different context:
"[T]he fact that a court says that its decision . . . is 'controlled' by a prior decision, is not conclusive for purposes of deciding whether the current decision is a 'new rule' . . . . Courts frequently view their decisions as being 'controlled' or 'governed' by prior opinions even
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