Rivers v. Roadway Express, Inc., 511 U.S. 298, 20 (1994)

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Cite as: 511 U. S. 298 (1994)

Blackmun, J., dissenting

tion that new laws apply to pending cases in the absence of manifest injustice, and Bowen and Bennett stand for the corresponding presumption against applying new laws when doing so would cause the very injustice Bradley is designed to avoid.3

Applying these principles here, "[w]hen a law purports to restore the status quo in existence prior to an intervening Supreme Court decision, the application of that law to conduct occurring prior to the decision would obviously not frustrate the expectations of the parties concerning the legal consequences of their actions at that time." Gersman v. Group Health Assn., Inc., 975 F. 2d 886, 907 (CADC 1992) (dissenting opinion). While 101 undoubtedly expands the scope of 1981 to prohibit conduct that was not illegal under Patterson,4 in the present context 101 provides a remedy for conduct that was recognized as illegal when it occurred, both under 1981 and under Title VII. Thus, as far as respondent is concerned, the law in effect when it dismissed petitioners' claim differs little from the law as amended by the Civil Rights Act of 1991, and application of 101 in this case would neither alter the expectations of the parties nor disturb previously vested rights. Because I believe that the most faithful reading of our precedents makes this the appropriate inquiry, I would reverse the judgment of the Court of Appeals and remand the case for further proceedings.

3 An inquiry into the vested rights and settled expectations of the parties is fairer and more sensitive than a mechanical reliance on a substance/ procedure dichotomy. See Gersman v. Group Health Assn., Inc., 975 F. 2d 886, 906 (CADC 1992) (Wald, J., dissenting); Mozee v. American Commercial Marine Service Co., 963 F. 2d 929, 940-941 (CA7 1992) (Cudahy, J., dissenting from denial of rehearing).

4 Not all conduct proscribed by 101 was also unlawful under Title VII or other civil rights laws. For example, 101, unlike Title VII, see 42 U. S. C. 2000e(b), applies to small employers, and even outside the employment context, see, e. g., Runyon v. McCrary, 427 U. S. 160 (1976).

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