292
Scalia, J., concurring in judgments
rule had not been applied at a trial which antedated the
statute.
The inadequacy of the Court's "vested rights" approach becomes apparent when a change in one of the incidents of trial alters substantive entitlements. The opinion classifies attorney's fees provisions as procedural and permits "retroactive" application (in the sense of application to cases involving preenactment conduct). See ante, at 277-278. It seems to me, however, that holding a person liable for attorney's fees affects a "substantive right" no less than holding him liable for compensatory or punitive damages, which the Court treats as affecting a vested right. If attorney's fees can be awarded in a suit involving conduct that antedated the fee-authorizing statute, it is because the purpose of the fee award is not to affect that conduct, but to encourage suit for the vindication of certain rights—so that the retroactivity event is the filing of suit, whereafter encouragement is no longer needed. Or perhaps because the purpose of the fee award is to facilitate suit—so that the retroactivity event is the termination of suit, whereafter facilitation can no longer be achieved.
The "vested rights" test does not square with our consistent practice of giving immediate effect to statutes that alter a court's jurisdiction. See, e. g., Bruner v. United States, 343 U. S. 112, 116-117, and n. 8 (1952); Hallowell v. Commons, 239 U. S. 506 (1916); cf. Ex parte McCardle, 7 Wall. 506, 514 (1869); Insurance Co. v. Ritchie, 5 Wall. 541, 544-545 (1867); see also King v. Justices of the Peace of London, 3 Burr. 1456, 97 Eng. Rep. 924 (K. B. 1764). The Court explains this aspect of our retroactivity jurisprudence by noting that "a new jurisdictional rule" will often not involve retroactivity in Justice Story's sense because it " 'takes away no substantive right but simply changes the tribunal that is to hear the case.' " Ante, at 274, quoting Hallowell, supra, at 508. That may be true sometimes, but surely not always. A jurisdictional rule can deny a litigant a forum for his claim
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