762
Kennedy, J., concurring in judgment
instance, through rules pertaining to tolling or waiver. See American Trucking Assns., Inc., supra, at 221 (Stevens, J., dissenting) (citing Braun v. Sauerwein, 10 Wall. 218, 223 (1870)). When a hard case presents the question of our authority to deny relief in a retroactivity case, that will be soon enough to resolve it; for the law in this area is, and ought to be, shaped by the urgent necessities we confront when there is a strong case to be made for limiting relief despite the retroactive application of the law.
This is not a case where we need to address the issue whether a party is entitled to a full remedy in a retroactivity case, because that question arises only when the right is predicated upon a new rule of law, see United States v. Johnson, 457 U. S. 537, 549 (1982), and Bendix Autolite Corp. v. Midwesco Enterprises, Inc., 486 U. S. 888 (1988), did not announce a new rule. In the civil context, a case announces a new rule of law "either by overruling clear past precedent on which litigants may have relied, . . . or by deciding an issue of first impression whose resolution was not clearly foreshadowed." Chevron Oil, supra, at 106; cf. Teague v. Lane, supra, at 301 (new rule in criminal context is one not "dictated by precedent existing at the time the defendant's conviction became final"). Respondent could not and does not attempt to argue that the Bendix decision overruled clear past precedent. Rather, she asserts its holding was not clearly foreshadowed. As the Court was explicit to acknowledge in Bendix, however, it was "[a]pplying well-settled constitutional principles," Bendix, supra, at 889, not a new legal theory or one that had not been foreshadowed by other precedents.
In Brown-Forman Distillers Corp. v. New York State Liquor Authority, 476 U. S. 573, 578-579 (1986), the Court identified two modes of analysis to evaluate state statutes under the Commerce Clause. The Court will consider the statute invalid without further inquiry when it "directly regulates or discriminates against interstate commerce, or when its
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