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Stare Decisis & Retroactivity
  • 1 Flood v. Kuhn

    1

    407 U.S. 258 (1972)

    2
    FLOOD
    v.
    KUHN ET AL.

    No. 71-32.

    3

    Supreme Court of United States.

    Argued March 20, 1972.
    Decided June 19, 1972.

    4

    CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT.

    5

    Arthur J. Goldberg argued the cause for petitioner. With him on the briefs was Jay H. Topkis.

    6

    Paul A. Porter argued the cause for respondent Kuhn. Louis F. Hoynes, Jr., argued the cause for respondents Feeney, President of National League of Professional Baseball Clubs, et al. With them on the brief were Mark F. Hughes, Alexander H. Hadden, James P. Garner, Warren Daane, and Jerome I. Chapman.

    7
    [259] MR. JUSTICE BLACKMUN delivered the opinion of the Court.
    8

    For the third time in 50 years the Court is asked specifically to rule that professional baseball's reserve system is within the reach of the federal antitrust laws.[1] [260] Collateral issues of state law and of federal labor policy are also advanced.

    9
    I
    10
    THE GAME
    11

    It is a century and a quarter since the New York Nine defeated the Knickerbockers 23 to 1 on Hoboken's [261] Elysian Fields June 19, 1846, with Alexander Jay Cartwright as the instigator and the umpire. The teams were amateur, but the contest marked a significant date in baseball's beginnings. That early game led ultimately to the development of professional baseball and its tightly organized structure.

    12

    The Cincinnati Red Stockings came into existence in 1869 upon an outpouring of local pride. With only one Cincinnatian on the payroll, this professional team traveled over 11,000 miles that summer, winning 56 games and tying one. Shortly thereafter, on St. Patrick's Day in 1871, the National Association of Professional Baseball Players was founded and the professional league was born.

    13

    The ensuing colorful days are well known. The ardent follower and the student of baseball know of General Abner Doubleday; the formation of the National League in 1876; Chicago's supremacy in the first year's competition under the leadership of Al Spalding and with Cap Anson at third base; the formation of the American Association and then of the Union Association in the 1880's; the introduction of Sunday baseball; interleague warfare with cut-rate admission prices and player raiding; the development of the reserve "clause"; the emergence in 1885 of the Brotherhood of Professional Ball Players, and in 1890 of the Players League; the appearance of the American League, or "junior circuit," in 1901, rising from the minor Western Association; the first World [262] Series in 1903, disruption in 1904, and the Series' resumption in 1905; the short-lived Federal League on the majors' scene during World War I years; the troublesome and discouraging episode of the 1919 Series; the home run ball; the shifting of franchises; the expansion of the leagues; the installation in 1965 of the major league draft of potential new players; and the formation of the Major League Baseball Players Association in 1966.[2]

    14

    Then there are the many names, celebrated for one reason or another, that have sparked the diamond and its environs and that have provided tinder for recaptured thrills, for reminiscence and comparisons, and for conversation and anticipation in-season and off-season: Ty Cobb, Babe Ruth, Tris Speaker, Walter Johnson, Henry Chadwick, Eddie Collins, Lou Gehrig, Grover Cleveland Alexander, Rogers Hornsby, Harry Hooper, Goose Goslin, Jackie Robinson, Honus Wagner, Joe McCarthy, John McGraw, Deacon Phillippe, Rube Marquard, Christy Mathewson, Tommy Leach, Big Ed Delahanty, Davy Jones, Germany Schaefer, King Kelly, Big Dan Brouthers, Wahoo Sam Crawford, Wee Willie Keeler, Big Ed Walsh, Jimmy Austin, Fred Snodgrass, Satchel Paige, Hugh Jennings, Fred Merkle, Iron Man McGinnity, Three-Finger Brown, Harry and Stan Coveleski, Connie Mack, Al Bridwell, Red Ruffing, Amos Rusie, Cy Young, Smokey Joe Wood, Chief Meyers, Chief Bender, Bill Klem, Hans Lobert, Johnny Evers, Joe Tinker, Roy Campanella, Miller Huggins, Rube Bressler, Dazzy Vance, Edd Roush, Bill Wambsganss, Clark Griffith, Branch Rickey, Frank Chance, Cap Anson, [263] Nap Lajoie, Sad Sam Jones, Bob O'Farrell, Lefty O'Doul, Bobby Veach, Willie Kamm, Heinie Groh, Lloyd and Paul Waner, Stuffy McInnis, Charles Comiskey, Roger Bresnahan, Bill Dickey, Zack Wheat, George Sisler, Charlie Gehringer, Eppa Rixey, Harry Heilmann, Fred Clarke, Dizzy Dean, Hank Greenberg, Pie Traynor, Rube Waddell, Bill Terry, Carl Hubbell, Old Hoss Radbourne, Moe Berg, Rabbit Maranville, Jimmie Foxx, Lefty Grove.[3] The list seems endless.

    15

    And one recalls the appropriate reference to the "World Serious," attributed to Ring Lardner, Sr.; Ernest L. Thayer's "Casey at the Bat";[4] the ring of "Tinker to [264] Evers to Chance";[5] and all the other happenings, habits, and superstitions about and around baseball that made it the "national pastime" or, depending upon the point of view, "the great American tragedy."[6]

    16
    II
    17
    The Petitioner
    18

    The petitioner, Curtis Charles Flood, born in 1938, began his major league career in 1956 when he signed a contract with the Cincinnati Reds for a salary of $4,000 for the season. He had no attorney or agent to advise him on that occasion. He was traded to the St. Louis Cardinals before the 1958 season. Flood rose to fame as a center fielder with the Cardinals during the years 1958-1969. In those 12 seasons he compiled a batting average of .293. His best offensive season was 1967 when he achieved .335. He was .301 or better in six of the 12 St. Louis years. He participated in the 1964, 1967, and 1968 World Series. He played error less ball in the field in 1966, and once enjoyed 223 consecutive errorless games. Flood has received seven Golden Glove Awards. He was co-captain of his team from 1965-1969. He ranks among the 10 major league outfielders possessing the highest lifetime fielding averages.

    19

    [265] Flood's St. Louis compensation for the years shown was:

    20
         1961    $13,500 (including a bonus for signing)     1962    $16,000     1963    $17,500     1964    $23,000     1965    $35,000     1966    $45,000     1967    $50,000     1968    $72,000     1969    $90,000
    21

    These figures do not include any so-called fringe benefits or World Series shares.

    22

    But at the age of 31, in October 1969, Flood was traded to the Philadelphia Phillies of the National League in a multi-player transaction. He was not consulted about the trade. He was informed by telephone and received formal notice only after the deal had been consummated. In December he complained to the Commissioner of Baseball and asked that he be made a free agent and be placed at liberty to strike his own bargain with any other major league team. His request was denied.

    23

    Flood then instituted this antitrust suit[7] in January 1970 in federal court for the Southern District of New York. The defendants (although not all were named in each cause of action) were the Commissioner of Baseball, the presidents of the two major leagues, and the 24 major league clubs. In general, the complaint charged violations of the federal antitrust laws and civil rights statutes, violation of state statutes and the common law, and the imposition of a form of peonage and involuntary [266] servitude contrary to the Thirteenth Amendment and 42 U. S. C. § 1994, 18 U. S. C. § 1581, and 29 U. S. C. §§ 102 and 103. Petitioner sought declaratory and injunctive relief and treble damages.

    24

    Flood declined to play for Philadelphia in 1970, despite a $100,000 salary offer, and he sat out the year. After the season was concluded, Philadelphia sold its rights to Flood to the Washington Senators. Washington and the petitioner were able to come to terms for 1971 at a salary of $110,000.[8] Flood started the season but, apparently because he was dissatisfied with his performance, he left the Washington club on April 27, early in the campaign. He has not played baseball since then.

    25
    III
    26
    The Present Litigation
    27

    Judge Cooper, in a detailed opinion, first denied a preliminary injunction, 309 F. Supp. 793 (SDNY 1970), observing on the way:

    28

    "Baseball has been the national pastime for over one hundred years and enjoys a unique place in our American heritage. Major league professional baseball is avidly followed by millions of fans, looked upon with fervor and pride and provides a special source of inspiration and competitive team spirit especially for the young.

    "Baseball's status in the life of the nation is so pervasive that it would not strain credulity to say the Court can take judicial notice that baseball is everybody's business. To put it mildly and with restraint, it would be unfortunate indeed if a fine sport and profession, which brings surcease from daily travail and an escape from the ordinary to [267] most inhabitants of this land, were to suffer in the least because of undue concentration by any one or any group on commercial and profit considerations. The game is on higher ground; it behooves every one to keep it there." 309 F. Supp., at 797.

    29

    Flood's application for an early trial was granted. The court next deferred until trial its decision on the defendants' motions to dismiss the primary causes of action, but granted a defense motion for summary judgment on an additional cause of action. 312 F. Supp. 404 (SDNY 1970).

    30

    Trial to the court took place in May and June 1970. An extensive record was developed. In an ensuing opinion, 316 F. Supp. 271 (SDNY 1970), Judge Cooper first noted that:

    31

    "Plaintiff's witnesses in the main concede that some form of reserve on players is a necessary element of the organization of baseball as a league sport, but contend that the present all-embracing system is needlessly restrictive and offer various alternatives which in their view might loosen the bonds without sacrifice to the game. . . .

    .....

    "Clearly the preponderance of credible proof does not favor elimination of the reserve clause. With the sole exception of plaintiff himself, it shows that even plaintiff's witnesses do not contend that it is wholly undesirable; in fact they regard substantial portions meritorious. . . ." 316 F. Supp., at 275-276.

    32

    He then held that Federal Baseball Club v. National League, 259 U. S. 200 (1922), and Toolson v. New York Yankees, Inc., 346 U. S. 356 (1953), were controlling; that it was not necessary to reach the issue whether exemption from the antitrust laws would result because aspects of [268] baseball now are a subject of collective bargaining; that the plaintiff's state-law claims, those based on common law as well as on statute, were to be denied because baseball was not "a matter which admits of diversity of treatment," 316 F. Supp., at 280; that the involuntary servitude claim failed because of the absence of "the essential element of this cause of action, a showing of compulsory service," 316 F. Supp., at 281-282; and that judgment was to be entered for the defendants. Judge Cooper included a statement of personal conviction to the effect that "negotiations could produce an accommodation on the reserve system which would be eminently fair and equitable to all concerned" and that "the reserve clause can be fashioned so as to find acceptance by player and club." 316 F. Supp., at 282 and 284.

    33

    On appeal, the Second Circuit felt "compelled to affirm." 443 F. 2d 264, 265 (1971). It regarded the issue of state law as one of first impression, but concluded that the Commerce Clause precluded its application. Judge Moore added a concurring opinion in which he predicted, with respect to the suggested overruling of Federal Baseball and Toolson, that "there is no likelihood that such an event will occur."[9] 443 F. 2d, at 268, 272.

    34

    [269] We granted certiorari in order to look once again at this troublesome and unusual situation. 404 U. S. 880 (1971).

    35
    IV
    36
    The Legal Background
    37

    A. Federal Baseball Club v. National League, 259 U. S. 200 (1922), was a suit for treble damages instituted by a member of the Federal League (Baltimore) against the National and American Leagues and others. The plaintiff obtained a verdict in the trial court, but the Court of Appeals reversed. The main brief filed by the plaintiff with this Court discloses that it was strenuously argued, among other things, that the business in which the defendants were engaged was interstate commerce; that the interstate relationship among the several clubs, located as they were in different States, was predominant; that organized baseball represented an investment of colossal wealth; that it was an engagement in moneymaking; that gate receipts were divided by agreement between the home club and the visiting club; and that the business of baseball was to be distinguished from the mere playing of the game as a sport for physical exercise and diversion. See also 259 U. S., at 201-206.

    38

    Mr. Justice Holmes, in speaking succinctly for a unanimous Court, said:

    39

    "The business is giving exhibitions of base ball, which are purely state affairs. . . . But the fact that in order to give the exhibitions the Leagues must induce free persons to cross state lines and [270] must arrange and pay for their doing so is not enough to change the character of the business. . . . [T]he transport is a mere incident, not the essential thing. That to which it is incident, the exhibition, although made for money would not be called trade or commerce in the commonly accepted use of those words. As it is put by the defendants, personal effort, not related to production, is not a subject of commerce. That which in its consummation is not commerce does not become commerce among the States because the transportation that we have mentioned takes place. To repeat the illustrations given by the Court below, a firm of lawyers sending out a member to argue a case, or the Chautauqua lecture bureau sending out lecturers, does not engage in such commerce because the lawyer or lecturer goes to another State.

    "If we are right the plaintiff's business is to be described in the same way and the restrictions by contract that prevented the plaintiff from getting players to break their bargains and the other conduct charged against the defendants were not an interference with commerce among the States." 259 U. S., at 208-209.[10]

    40

    [271] The Court thus chose not to be persuaded by opposing examples proffered by the plaintiff, among them (a) Judge Learned Hand's decision on a demurrer to a Sherman Act complaint with respect to vaudeville entertainers traveling a theater circuit covering several States, H. B. Marienelli, Ltd. v. United Booking Offices, 227 F. 165 (SDNY 1914); (b) the first Mr. Justice Harlan's opinion in International Textbook Co. v. Pigg, 217 U. S. 91 (1910), to the effect that correspondence courses pursued through the mail constituted commerce among the States; and (c) Mr. Justice Holmes' own opinion, for another unanimous Court, on demurrer in a Sherman Act case, relating to cattle shipment, the interstate movement of which was interrupted for the finding of purchasers at the stockyards, Swift & Co. v. United States, 196 U. S. 375 (1905). The only earlier case the parties were able to locate where the question was raised whether organized baseball was within the Sherman Act was American League Baseball Club v. Chase, 86 Misc. 441, 149 N. Y. S. 6 (1914). That court had answered the question in the negative.

    41

    B. Federal Baseball was cited a year later, and without disfavor, in another opinion by Mr. Justice Holmes for a unanimous Court. The complaint charged antitrust violations with respect to vaudeville bookings. It was held, however, that the claim was not frivolous and that the bill should not have been dismissed. Hart v. B. F. Keith Vaudeville Exchange, 262 U. S. 271 (1923).[11]

    42

    It has also been cited, not unfavorably, with respect to the practice of law, United States v. South-Eastern [272] Underwriters Assn., 322 U. S. 533, 573 (1944) (Stone, C. J., dissenting); with respect to out-of-state contractors, United States v. Employing Plasterers Assn., 347 U. S. 186, 196-197 (1954) (Minton, J., dissenting); and upon a general comparison reference, North American Co. v. SEC, 327 U. S. 686, 694 (1946).

    43

    In the years that followed, baseball continued to be subject to intermittent antitrust attack. The courts, however, rejected these challenges on the authority of Federal Baseball. In some cases stress was laid, although unsuccessfully, on new factors such as the development of radio and television with their substantial additional revenues to baseball.[12] For the most part, however, the Holmes opinion was generally and necessarily accepted as controlling authority.[13] And in the 1952 Report of the Subcommittee on Study of Monopoly Power of the House Committee on the Judiciary, H. R. Rep. No. 2002, 82d Cong., 2d Sess., 229, it was said, in conclusion:

    44

    "On the other hand the overwhelming preponderance of the evidence established baseball's need for some sort of reserve clause. Baseball's history shows that chaotic conditions prevailed when there was no reserve clause. Experience points to no feasible substitute to protect the integrity of the game or to guarantee a comparatively even competitive [273] struggle. The evidence adduced at the hearings would clearly not justify the enactment of legislation flatly condemning the reserve clause."

    45

    C. The Court granted certiorari, 345 U. S. 963 (1953), in the Toolson, Kowalski, and Corbett cases, cited in nn. 12 and 13, supra, and, by a short per curiam (Warren, C. J., and Black, Frankfurter, DOUGLAS, Jackson, Clark, and Minton, JJ.), affirmed the judgments of the respective courts of appeals in those three cases. Toolson v. New York Yankees, Inc., 346 U. S. 356 (1953). Federal Baseball was cited as holding "that the business of providing public baseball games for profit between clubs of professional baseball players was not within the scope of the federal antitrust laws," 346 U. S., at 357, and:

    46

    "Congress has had the ruling under consideration but has not seen fit to bring such business under these laws by legislation having prospective effect. The business has thus been left for thirty years to develop, on the understanding that it was not subject to existing antitrust legislation. The present cases ask us to overrule the prior decision and, with retrospective effect, hold the legislation applicable. We think that if there are evils in this field which now warrant application to it of the antitrust laws it should be by legislation. Without re-examination of the underlying issues, the judgments below are affirmed on the authority of Federal Baseball Club of Baltimore v. National League of Professional Baseball Clubs, supra, so far as that decision determines that Congress had no intention of including the business of baseball within the scope of the federal antitrust laws." Ibid.

    47

    This quotation reveals four reasons for the Court's affirmance of Toolson and its companion cases: (a) Congressional awareness for three decades of the Court's ruling in Federal Baseball, coupled with congressional [274] inaction. (b) The fact that baseball was left alone to develop for that period upon the understanding that the reserve system was not subject to existing federal antitrust laws. (c) A reluctance to overrule Federal Baseball with consequent retroactive effect. (d) A professed desire that any needed remedy be provided by legislation rather than by court decree. The emphasis in Toolson was on the determination, attributed even to Federal Baseball, that Congress had no intention to include baseball within the reach of the federal antitrust laws. Two Justices (Burton and Reed, JJ.) dissented, stressing the factual aspects, revenue sources, and the absence of an express exemption of organized baseball from the Sherman Act. 346 U. S., at 357. The 1952 congressional study was mentioned. Id., at 358, 359, 361.

    48

    It is of interest to note that in Toolson the petitioner had argued flatly that Federal Baseball "is wrong and must be overruled," Brief for Petitioner, No. 18, O. T. 1953, p. 19, and that Thomas Reed Powell, a constitutional scholar of no small stature, urged, as counsel for an amicus, that "baseball is a unique enterprise," Brief for Boston American League Base Ball Co. as Amicus Curiae 2, and that "unbridled competition as applied to baseball would not be in the public interest." Id., at 14.

    49

    D. United States v. Shubert, 348 U. S. 222 (1955), was a civil antitrust action against defendants engaged in the production of legitimate theatrical attractions throughout the United States and in operating theaters for the presentation of such attractions. The District Court had dismissed the complaint on the authority of Federal Baseball and Toolson. 120 F. Supp. 15 (SDNY 1953). This Court reversed. Mr. Chief Justice Warren noted the Court's broad conception of "trade or commerce" in the antitrust statutes and the types of enterprises already held to be within the reach of that phrase. [275] He stated that Federal Baseball and Toolson afforded no basis for a conclusion that businesses built around the performance of local exhibitions are exempt from the antitrust laws. 348 U. S., at 227. He then went on to elucidate the holding in Toolson by meticulously spelling out the factors mentioned above:

    50

    "In Federal Baseball, the Court, speaking through Mr. Justice Holmes, was dealing with the business of baseball and nothing else. . . . The travel, the Court concluded, was `a mere incident, not the essential thing.' . . .

    .....

    "In Toolson, where the issue was the same as in Federal Baseball, the Court was confronted with a unique combination of circumstances. For over 30 years there had stood a decision of this Court specifically fixing the status of the baseball business under the antitrust laws and more particularly the validity of the so-called `reserve clause.' During this period, in reliance on the Federal Baseball precedent, the baseball business had grown and developed. . . . And Congress, although it had actively considered the ruling, had not seen fit to reject it by amendatory legislation. Against this background, the Court in Toolson was asked to overrule Federal Baseball on the ground that it was out of step with subsequent decisions reflecting present-day concepts of interstate commerce. The Court, in view of the circumstances of the case, declined to do so. But neither did the Court necessarily reaffirm all that was said in Federal Baseball. Instead, `[w]ithout re-examination of the underlying issues,' the Court adhered to Federal Baseball `so far as that decision determines that Congress had no intention of including the business of baseball within the scope of the federal antitrust laws.' 346 [276] U. S., at 357. In short, Toolson was a narrow application of the rule of stare decisis.

    ". . . If the Toolson holding is to be expanded— or contracted—the appropriate remedy lies with Congress." 348 U. S., at 228-230.

    51

    E. United States v. International Boxing Club, 348 U. S. 236 (1955), was a companion to Shubert and was decided the same day. This was a civil antitrust action against defendants engaged in the business of promoting professional championship boxing contests. Here again the District Court had dismissed the complaint in reliance upon Federal Baseball and Toolson. The Chief Justice observed that "if it were not for Federal Baseball and Toolson, we think that it would be too clear for dispute that the Government's allegations bring the defendants within the scope of the Act." 348 U. S., at 240-241. He pointed out that the defendants relied on the two baseball cases but also would have been content with a more restrictive interpretation of them than the Shubert defendants, for the boxing defendants argued that the cases immunized only businesses that involve exhibitions of an athletic nature. The Court accepted neither argument. It again noted, 348 U. S., at 242, that "Toolson neither overruled Federal Baseball nor necessarily reaffirmed all that was said in Federal Baseball." It stated:

    52

    "The controlling consideration in Federal Baseball and Hart was, instead, a very practical one— the degree of interstate activity involved in the particular business under review. It follows that stare decisis cannot help the defendants here; for, contrary to their argument, Federal Baseball did not hold that all businesses based on professional sports were outside the scope of the antitrust laws. The issue confronting us is, therefore, not whether a previously granted exemption should continue, [277] but whether an exemption should be granted in the first instance. And that issue is for Congress to resolve, not this Court." 348 U. S., at 243.

    53

    The Court noted the presence then in Congress of various bills forbidding the application of the antitrust laws to "organized professional sports enterprises"; the holding of extensive hearings on some of these; subcommittee opposition; a postponement recommendation as to baseball; and the fact that "Congress thus left intact the then-existing coverage of the antitrust laws." 348 U. S., at 243-244.

    54

    Mr. Justice Frankfurter, joined by Mr. Justice Minton, dissented. "It would baffle the subtlest ingenuity," he said, "to find a single differentiating factor between other sporting exhibitions . . . and baseball insofar as the conduct of the sport is relevant to the criteria or considerations by which the Sherman Law becomes applicable to a `trade or commerce.' " 348 U. S., at 248. He went on:

    55

    "The Court decided as it did in the Toolson case as an application of the doctrine of stare decisis. That doctrine is not, to be sure, an imprisonment of reason. But neither is it a whimsy. It can hardly be that this Court gave a preferred position to baseball because it is the great American sport. . . . If stare decisis be one aspect of law, as it is, to disregard it in identical situations is mere caprice.

    "Congress, on the other hand, may yield to sentiment and be capricious, subject only to due process. . . .

    "Between them, this case and Shubert illustrate that nice but rational distinctions are inevitable in adjudication. I agree with the Court's opinion in Shubert for precisely the reason that constrains me to dissent in this case." 348 U. S., at 249-250.

    56

    [278] Mr. Justice Minton also separately dissented on the ground that boxing is not trade or commerce. He added the comment that "Congress has not attempted" to control baseball and boxing. 348 U. S., at 251, 253. The two dissenting Justices, thus, did not call for the overruling of Federal Baseball and Toolson; they merely felt that boxing should be under the same umbrella of freedom as was baseball and, as Mr. Justice Frankfurter said, 348 U. S., at 250, they could not exempt baseball "to the exclusion of every other sport different not one legal jot or tittle from it."[14]

    57

    F. The parade marched on. Radovich v. National Football League, 352 U. S. 445 (1957), was a civil Clayton Act case testing the application of the antitrust laws to professional football. The District Court dismissed. The Ninth Circuit affirmed in part on the basis of Federal Baseball and Toolson. The court did not hesitate to "confess that the strength of the pull" of the baseball cases and of International Boxing "is about equal," but then observed that "[f]ootball is a team sport" and boxing an individual one. 231 F. 2d 620, 622.

    58

    This Court reversed with an opinion by Mr. Justice Clark. He said that the Court made its ruling in Toolson "because it was concluded that more harm would be done in overruling Federal Baseball than in upholding a ruling which at best was of dubious validity." 352 U. S., at 450. He noted that Congress had not acted. He then said:

    59

    "All this, combined with the flood of litigation that would follow its repudiation, the harassment that would ensue, and the retroactive effect of such a decision, led the Court to the practical result that [279] it should sustain the unequivocal line of authority reaching over many years.

    "[S]ince Toolson and Federal Baseball are still cited as controlling authority in antitrust actions involving other fields of business, we now specifically limit the rule there established to the facts there involved, i. e., the business of organized professional baseball. As long as the Congress continues to acquiesce we should adhere to—but not extend— the interpretation of the Act made in those cases. . . .

    "If this ruling is unrealistic, inconsistent, or illogical, it is sufficient to answer, aside from the distinctions between the businesses, that were we considering the question of baseball for the first time upon a clean slate we would have no doubts. But Federal Baseball held the business of baseball outside the scope of the Act. No other business claiming the coverage of those cases has such an adjudication. We, therefore, conclude that the orderly way to eliminate error or discrimination, if any there be, is by legislation and not by court decision. Congressional processes are more accommodative, affording the whole industry hearings and an opportunity to assist in the formulation of new legislation. The resulting product is therefore more likely to protect the industry and the public alike. The whole scope of congressional action would be known long in advance and effective dates for the legislation could be set in the future without the injustices of retroactivity and surprise which might follow court action." 352 U. S., at 450-452 (footnote omitted).

    60

    Mr. Justice Frankfurter dissented essentially for the reasons stated in his dissent in International Boxing, [280] 352 U. S., at 455. Mr. Justice Harlan, joined by MR. JUSTICE BRENNAN, also dissented because he, too, was "unable to distinguish football from baseball." 352 U. S., at 456. Here again the dissenting Justices did not call for the overruling of the baseball decisions. They merely could not distinguish the two sports and, out of respect for stare decisis, voted to affirm.

    61

    G. Finally, in Haywood v. National Basketball Assn., 401 U. S. 1204 (1971), MR. JUSTICE DOUGLAS, in his capacity as Circuit Justice, reinstated a District Court's injunction pendente lite in favor of a professional basketball player and said, "Basketball . . . does not enjoy exemption from the antitrust laws." 401 U. S., at 1205.[15]

    62

    H. This series of decisions understandably spawned extensive commentary,[16] some of it mildly critical and [281] much of it not; nearly all of it looked to Congress for any remedy that might be deemed essential.

    63

    I. Legislative proposals have been numerous and persistent. Since Toolson more than 50 bills have been introduced in Congress relative to the applicability or nonapplicability of the antitrust laws to baseball.[17] A few of these passed one house or the other. Those that did would have expanded, not restricted, the reserve system's exemption to other professional league sports. And the Act of Sept. 30, 1961, Pub. L. 87-331, 75 Stat. 732, and the merger addition thereto effected by the Act of Nov. 8, 1966. Pub. L. 89-800, § 6 (b), [282] 80 Stat. 1515, 15 U. S. C. §§ 1291-1295, were also expansive rather than restrictive as to antitrust exemption.[18]

    64
    V
    65

    In view of all this, it seems appropriate now to say that:

    66

    1. Professional baseball is a business and it is engaged in interstate commerce.

    67

    2. With its reserve system enjoying exemption from the federal antitrust laws, baseball is, in a very distinct sense, an exception and an anomaly. Federal Baseball and Toolson have become an aberration confined to baseball.

    68

    3. Even though others might regard this as "unrealistic, inconsistent, or illogical," see Radovich, 352 U. S., at 452, the aberration is an established one, and one that has been recognized not only in Federal Baseball and Toolson, but in Shubert, International Boxing, and Radovich, as well, a total of five consecutive cases in this Court. It is an aberration that has been with us now for half a century, one heretofore deemed fully entitled to the benefit of stare decisis, and one that has survived the Court's expanding concept of interstate commerce. It rests on a recognition and an acceptance of baseball's unique characteristics and needs.

    69

    4. Other professional sports operating interstate—football, [283] boxing, basketball, and, presumably, hockey[19] and golf[20]—are not so exempt.

    70

    5. The advent of radio and television, with their consequent increased coverage and additional revenues, has not occasioned an overruling of Federal Baseball and Toolson.

    71

    6. The Court has emphasized that since 1922 baseball, with full and continuing congressional awareness, has been allowed to develop and to expand unhindered by federal legislative action. Remedial legislation has been introduced repeatedly in Congress but none has ever been enacted. The Court, accordingly, has concluded that Congress as yet has had no intention to subject baseball's reserve system to the reach of the antitrust statutes. This, obviously, has been deemed to be something other than mere congressional silence and passivity. Cf. Boys Markets, Inc. v. Retail Clerks Union, 398 U. S. 235, 241-242 (1970).

    72

    7. The Court has expressed concern about the confusion and the retroactivity problems that inevitably would result with a judicial overturning of Federal Baseball. It has voiced a preference that if any change is to be made, it come by legislative action that, by its nature, is only prospective in operation.

    73

    8. The Court noted in Radovich, 352 U. S., at 452, that the slate with respect to baseball is not clean. Indeed, it has not been clean for half a century.

    74

    This emphasis and this concern are still with us. We continue to be loath, 50 years after Federal Baseball and almost two decades after Toolson, to overturn those cases judicially when Congress, by its positive inaction, [284] has allowed those decisions to stand for so long and, far beyond mere inference and implication, has clearly evinced a desire not to disapprove them legislatively.

    75

    Accordingly, we adhere once again to Federal Baseball and Toolson and to their application to professional baseball. We adhere also to International Boxing and Radovich and to their respective applications to professional boxing and professional football. If there is any inconsistency or illogic in all this, it is an inconsistency and illogic of long standing that is to be remedied by the Congress and not by this Court. If we were to act otherwise, we would be withdrawing from the conclusion as to congressional intent made in Toolson and from the concerns as to retrospectivity therein expressed. Under these circumstances, there is merit in consistency even though some might claim that beneath that consistency is a layer of inconsistency.

    76

    The petitioner's argument as to the application of state antitrust laws deserves a word. Judge Cooper rejected the state law claims because state antitrust regulation would conflict with federal policy and because national "uniformity [is required] in any regulation of baseball and its reserve system." 316 F. Supp., at 280. The Court of Appeals, in affirming, stated, "[A]s the burden on interstate commerce outweighs the states' interests in regulating baseball's reserve system, the Commerce Clause precludes the application here of state antitrust law." 443 F. 2d, at 268. As applied to organized baseball, and in the light of this Court's observations and holdings in Federal Baseball, in Toolson, in Shubert, in International Boxing, and in Radovich, and despite baseball's allegedly inconsistent position taken in the past with respect to the application of state law,[21] [285] these statements adequately dispose of the state law claims.

    77

    The conclusion we have reached makes it unnecessary for us to consider the respondents' additional argument that the reserve system is a mandatory subject of collective bargaining and that federal labor policy therefore exempts the reserve system from the operation of federal antitrust laws.[22]

    78

    We repeat for this case what was said in Toolson:

    79

    "Without re-examination of the underlying issues, the [judgment] below [is] affirmed on the authority of Federal Baseball Club of Baltimore v. National League of Professional Baseball Clubs, supra, so far as that decision determines that Congress had no intention of including the business of baseball within the scope of the federal antitrust laws." 346 U. S., at 357.

    80

    And what the Court said in Federal Baseball in 1922 and what it said in Toolson in 1953, we say again here in 1972: the remedy, if any is indicated, is for congressional, and not judicial, action.

    81

    The judgment of the Court of Appeals is

    82

    Affirmed.

    83

    MR. JUSTICE WHITE joins in the judgment of the Court, and in all but Part I of the Court's opinion.

    84

    MR. JUSTICE POWELL took no part in the consideration or decision of this case.

    85
    MR. CHIEF JUSTICE BURGER, concurring.
    86

    I concur in all but Part I of the Court's opinion but, like MR. JUSTICE DOUGLAS, I have grave reservations [286] as to the correctness of Toolson v. New York Yankees, Inc., 346 U. S. 356 (1953); as he notes in his dissent, he joined that holding but has "lived to regret it." The error, if such it be, is one on which the affairs of a great many people have rested for a long time. Courts are not the forum in which this tangled web ought to be unsnarled. I agree with MR. JUSTICE DOUGLAS that congressional inaction is not a solid base, but the least undesirable course now is to let the matter rest with Congress; it is time the Congress acted to solve this problem.

    87
    MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BRENNAN concurs, dissenting.
    88

    This Court's decision in Federal Baseball Club v. National League, 259 U. S. 200, made in 1922, is a derelict in the stream of the law that we, its creator, should remove. Only a romantic view[23] of a rather dismal business account over the last 50 years would keep that derelict in midstream.

    89

    In 1922 the Court had a narrow, parochial view of commerce. With the demise of the old landmarks of that era, particularly United States v. Knight Co., 156 U. S. 1, Hammer v. Dagenhart, 247 U. S. 251, and Paul v. Virginia, 8 Wall. 168, the whole concept of commerce has changed.

    90

    Under the modern decisions such as Mandeville Island Farms v. American Crystal Sugar Co., 334 U. S. 219; United States v. Darby, 312 U. S. 100; Wickard v. Filburn, 317 U. S. 111; United States v. South-Eastern Underwriters Assn., 322 U. S. 533, the power of Congress was recognized as broad enough to reach all phases of the vast operations of our national industrial system. [287] An industry so dependent on radio and television as is baseball and gleaning vast interstate revenues (see H. R. Rep. No. 2002, 82d Cong., 2d Sess., 4, 5 (1952)) would be hard put today to say with the Court in the Federal Baseball Club case that baseball was only a local exhibition, not trade or commerce.

    91

    Baseball is today big business that is packaged with beer, with broadcasting, and with other industries. The beneficiaries of the Federal Baseball Club decision are not the Babe Ruths, Ty Cobbs, and Lou Gehrigs.

    92

    The owners, whose records many say reveal a proclivity for predatory practices, do not come to us with equities. The equities are with the victims of the reserve clause. I use the word "victims" in the Sherman Act sense, since a contract which forbids anyone to practice his calling is commonly called an unreasonable restraint of trade.[24] Gardella v. Chandler, 172 F. 2d 402 (CA2). And see Haywood v. National Basketball Assn., 401 U. S. 1204 (DOUGLAS, J., in chambers).

    93

    If congressional inaction is our guide, we should rely upon the fact that Congress has refused to enact bills broadly exempting professional sports from antitrust regulation.[25] H. R. Rep. No. 2002, 82d Cong., 2d Sess. [288] (1952). The only statutory exemption granted by Congress to professional sports concerns broadcasting rights. 15 U. S. C. §§ 1291-1295. I would not ascribe a broader exemption through inaction than Congress has seen fit to grant explicitly.

    94

    There can be no doubt "that were we considering the question of baseball for the first time upon a clean slate"[26] we would hold it to be subject to federal antitrust regulation. Radovich v. National Football League, 352 U. S. 445, 452. The unbroken silence of Congress should not prevent us from correcting our own mistakes.

    95
    MR. JUSTICE MARSHALL, with whom MR. JUSTICE BRENNAN joins, dissenting.
    96

    Petitioner was a major league baseball player from 1956, when he signed a contract with the Cincinnati Reds, until 1969, when his 12-year career with the St. Louis Cardinals, which had obtained him from the Reds, ended and he was traded to the Philadelphia Phillies. He had no notice that the Cardinals were contemplating a trade, no opportunity to indicate the teams with which he would prefer playing, and no desire to go to Philadelphia. After receiving formal notification of the trade, petitioner wrote to the Commissioner of Baseball protesting that he was not [289] "a piece of property to be bought and sold irrespective of my wishes,"[27] and urging that he had the right to consider offers from other teams than the Phillies. He requested that the Commissioner inform all of the major league teams that he was available for the 1970 season. His request was denied, and petitioner was informed that he had no choice but to play for Philadelphia or not to play at all.

    97

    To non-athletes it might appear that petitioner was virtually enslaved by the owners of major league baseball clubs who bartered among themselves for his services. But, athletes know that it was not servitude that bound petitioner to the club owners; it was the reserve system. The essence of that system is that a player is bound to the club with which he first signs a contract for the rest of his playing days.[28] He cannot escape from the club except by retiring, and he cannot prevent the club from assigning his contract to any other club.

    98

    Petitioner brought this action in the United States District Court for the Southern District of New York. He alleged, among other things, that the reserve system was an unreasonable restraint of trade in violation of [290] federal antitrust laws.[29] The District Court thought itself bound by prior decisions of this Court and found for the respondents after a full trial. 309 F. Supp. 793 (1970). The United States Court of Appeals for the Second Circuit affirmed. 443 F. 2d 264 (1971). We granted certiorari on October 19, 1971, 404 U. S. 880, in order to take a further look at the precedents relied upon by the lower courts.

    99

    This is a difficult case because we are torn between the principle of stare decisis and the knowledge that the decisions in Federal Baseball Club v. National League, 259 U. S. 200 (1922), and Toolson v. New York Yankees, Inc., 346 U. S. 356 (1953), are totally at odds with more recent and better reasoned cases.

    100

    In Federal Baseball Club, a team in the Federal League brought an antitrust action against the National and American Leagues and others. In his opinion for a unanimous Court, Mr. Justice Holmes wrote that the business being considered was "giving exhibitions of base ball, which are purely state affairs." 259 U. S., at 208. Hence, the Court held that baseball was not within the purview of the antitrust laws. Thirty-one years later, the Court reaffirmed this decision, without reexamining it, in Toolson, a one-paragraph per curiam opinion. Like this case, Toolson involved an attack on the reserve system. The Court said:

    101

    "The business has . . . been left for thirty years to develop, on the understanding that it was not [291] subject to existing antitrust legislation. The present cases ask us to overrule the prior decision and, with retrospective effect, hold the legislation applicable. We think that if there are evils in this field which now warrant application to it of the antitrust laws it should be by legislation." Id., at 357.

    102

    Much more time has passed since Toolson and Congress has not acted. We must now decide whether to adhere to the reasoning of Toolsoni. e., to refuse to re-examine the underlying basis of Federal Baseball Club— or to proceed with a re-examination and let the chips fall where they may.

    103

    In his answer to petitioner's complaint, the Commissioner of Baseball "admits that under present concepts of interstate commerce defendants are engaged therein." App. 40. There can be no doubt that the admission is warranted by today's reality. Since baseball is interstate commerce, if we re-examine baseball's antitrust exemption, the Court's decisions in United States v. Shubert, 348 U. S. 222 (1955), United States v. International Boxing Club, 348 U. S. 236 (1955), and Radovich v. National Football League, 352 U. S. 445 (1957), require that we bring baseball within the coverage of the antitrust laws. See also, Haywood v. National Basketball Assn., 401 U. S. 1204 (DOUGLAS, J., in chambers).

    104

    We have only recently had occasion to comment that:

    105

    "Antitrust laws in general, and the Sherman Act in particular, are the Magna Carta of free enterprise. They are as important to the preservation of economic freedom and our free-enterprise system as the Bill of Rights is to the protection of our fundamental personal freedoms. . . . Implicit in such freedom is the notion that it cannot be foreclosed with respect to one sector of the economy [292] because certain private citizens or groups believe that such foreclosure might promote greater competition in a more important sector of the economy." United States v. Topco Associates, Inc., 405 U. S. 596, 610 (1972).

    106

    The importance of the antitrust laws to every citizen must not be minimized. They are as important to baseball players as they are to football players, lawyers, doctors, or members of any other class of workers. Baseball players cannot be denied the benefits of competition merely because club owners view other economic interests as being more important, unless Congress says so.

    107

    Has Congress acquiesced in our decisions in Federal Baseball Club and Toolson? I think not. Had the Court been consistent and treated all sports in the same way baseball was treated, Congress might have become concerned enough to take action. But, the Court was inconsistent, and baseball was isolated and distinguished from all other sports. In Toolson the Court refused to act because Congress had been silent. But the Court may have read too much into this legislative inaction.

    108

    Americans love baseball as they love all sports. Perhaps we become so enamored of athletics that we assume that they are foremost in the minds of legislators as well as fans. We must not forget, however, that there are only some 600 major league baseball players. Whatever muscle they might have been able to muster by combining forces with other athletes has been greatly impaired by the manner in which this Court has isolated them. It is this Court that has made them impotent, and this Court should correct its error.

    109

    We do not lightly overrule our prior constructions of federal statutes, but when our errors deny substantial federal rights, like the right to compete freely and effectively to the best of one's ability as guaranteed by the [293] antitrust laws, we must admit our error and correct it. We have done so before and we should do so again here. See, e. g., Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U. S. 313 (1971); Boys Markets, Inc. v. Retail Clerks Union, 398 U. S. 235, 241 (1970).[30]

    110

    To the extent that there is concern over any reliance interests that club owners may assert, they can be satisfied by making our decision prospective only. Baseball should be covered by the antitrust laws beginning with otherwise.[31]

    111

    Accordingly, I would overrule Federal Baseball Club and Toolson and reverse the decision of the Court of Appeals.[32]

    112

    This does not mean that petitioner would necessarily prevail, however. Lurking in the background is a hurdle of recent vintage that petitioner still must overcome. [294] In 1966, the Major League Players Association was formed. It is the collective-bargaining representative for all major league baseball players. Respondents argue that the reserve system is now part and parcel of the collective-bargaining agreement and that because it is a mandatory subject of bargaining, the federal labor statutes are applicable, not the federal antitrust laws.[33] The lower courts did not rule on this argument, having decided the case solely on the basis of the antitrust exemption.

    113

    This Court has faced the interrelationship between the antitrust laws and the labor laws before. The decisions make several things clear. First, "benefits to organized labor cannot be utilized as a cat's-paw to pull employer's chestnuts out of the antitrust fires." United States v. Women's Sportswear Manufacturers Assn., 336 U. S. 460, 464 (1949). See also Allen Bradley Co. v. Local Union No. 3, 325 U. S. 797 (1945). Second, the very nature of a collective-bargaining agreement mandates that the parties be able to "restrain" trade to a greater degree than management could do unilaterally. United States v. Hutcheson, 312 U. S. 219 (1941); United Mine Workers v. Pennington, 381 U. S. 657 (1965); Amalgamated Meat Cutters v. Jewel Tea, 381 U. S. 676 (1965); cf., Teamsters Union v. Oliver, 358 U. S. 283 (1959). Finally, it is clear that some cases can be resolved only by examining the purposes and the competing interests of the labor and antitrust statutes and by striking a balance.

    114

    It is apparent that none of the prior cases is precisely in point. They involve union-management agreements that work to the detriment of management's competitors. In this case, petitioner urges that the reserve system works to the detriment of labor.

    115

    [295] While there was evidence at trial concerning the collective-bargaining relationship of the parties, the issues surrounding that relationship have not been fully explored. As one commentary has suggested, this case "has been litigated with the implications for the institution of collective bargaining only dimly perceived. The labor law issues have been in the corners of the case— the courts below, for example, did not reach them— moving in and out of the shadows like an uninvited guest at a party whom one can't decide either to embrace or expel."[34]

    116

    It is true that in Radovich v. National Football League, supra, the Court rejected a claim that federal labor statutes governed the relationship between a professional athlete and the professional sport. But, an examination of the briefs and record in that case indicates that the issue was not squarely faced. The issue is once again before this Court without being clearly focused. It should, therefore, be the subject of further inquiry in the District Court.

    117

    There is a surface appeal to respondents' argument that petitioner's sole remedy lies in filing a claim with the National Labor Relations Board, but this argument is premised on the notion that management and labor have agreed to accept the reserve clause. This notion is contradicted, in part, by the record in this case. Petitioner suggests that the reserve system was thrust upon the players by the owners and that the recently formed players' union has not had time to modify or eradicate it. If this is true, the question arises as to whether there would then be any exemption from the antitrust laws in this case. Petitioner also suggests that there are limits [296] to the antitrust violations to which labor and management can agree. These limits should also be explored.

    118

    In light of these consideration, I would remand this case to the District Court for consideration of whether petitioner can state a claim under the antitrust laws despite the collective-bargaining agreement, and, if so, for a determination of whether there has been an antitrust violation in this case.

    119

    [1] The reserve system, publicly introduced into baseball contracts in 1887, see Metropolitan Exhibition Co. v. Ewing, 42 F. 198, 202-204 (CC SDNY 1890), centers in the uniformity of player contracts; the confinement of the player to the club that has him under the contract; the assignability of the player's contract; and the ability of the club annually to renew the contract unilaterally, subject to a stated salary minimum. Thus

    120

    A. Rule 3 of the Major League Rules provides in part:

    "(a) UNIFORM CONTRACT. To preserve morale and to produce the similarity of conditions necessary to keen competition, the contracts between all clubs and their players in the Major Leagues shall be in a single form which shall be prescribed by the Major League Executive Council. No club shall make a contract different from the uniform contract or a contract containing a non-reserve clause, except with the written approval of the Commissioner. . . .

    .....

    "(g) TAMPERING. To preserve discipline and competition, and to prevent the enticement of players, coaches, managers and umpires, there shall be no negotiations or dealings respecting employment, either present or prospective, between any player, coach or manager and any club other than the club with which he is under contract or acceptance of terms, or by which he is reserved, or which has the player on its Negotiation List, or between any umpire and any league other than the league with which he is under contract or acceptance of terms, unless the club or league with which he is connected shall have, in writing, expressly authorized such negotiations or dealings prior to their commencement."

    B. Rule 9 of the Major League Rules provides in part:

    "(a) NOTICE. A club may assign to another club an existing contract with a player. The player, upon receipt of written notice of such assignment, is by his contract bound to serve the assignee.

    .....

    "After the date of such assignment all rights and obligations of the assignor clubs thereunder shall become the rights and obligations of the assignee club . . . ."

    C. Rules 3 and 9 of the Professional Baseball Rules contain provisions parallel to those just quoted.

    D. The Uniform Player's Contract provides in part:

    "4. (a). . . The Player agrees that, in addition to other remedies, the Club shall be entitled to injunctive and other equitable relief to prevent a breach of this contract by the Player, including, among others, the right to enjoin the Player from playing baseball for any other person or organization during the term of this contract."

    "5. (a). The Player agrees that, while under contract, and prior to expiration of the Club's right to renew this contract, he will not play baseball otherwise than for the Club, except that the Player may participate in post-season games under the conditions prescribed in the Major League Rules. . . ."

    "6. (a) The Player agrees that this contract may be assigned by the Club (and reassigned by any assignee Club) to any other Club in accordance with the Major League Rules and the Professional Baseball Rules."

    "10. (a) On or before January 15 (or if a Sunday, then the next preceding business day) of the year next following the last playing season covered by this contract, the Club may tender to the Player a contract for the term of that year by mailing the same to the Player at his address following his signature hereto, or if none be given, then at his last address of record with the Club. If prior to the March 1 next succeeding said January 15, the Player and the Club have not agreed upon the terms of such contract, then on or before 10 days after said March 1, the Club shall have the right by written notice to the Player at said address to renew this contract for the period of one year on the same terms, except that the amount payable to the Player shall be such as the club shall fix in said notice; provided, however, that said amount, if fixed by a Major League Club, shall be an amount payable at a rate not less than 80% of the rate stipulated for the preceding year.

    "(b) The Club's right to renew this contract, as provided in sub-paragraph (a) of this paragraph 10, and the promise of the Player not to play otherwise than with the Club have been taken into consideration in determining the amount payable under paragraph 2 hereof."

    121

    [2] See generally The Baseball Encyclopedia (1969); L. Ritter, The Glory of Their Times (1966); 1 & 2 H. Seymour, Baseball (1960, 1971); 1 & 2 D. Voigt, American Baseball (1966, 1970).

    122

    [3] These are names only from earlier years. By mentioning some, one risks unintended omission of others equally celebrated.

    123

    [4] Millions have known and enjoyed baseball. One writer knowledgeable in the field of sports almost assumed that everyone did until, one day, he discovered otherwise:

    124

    "I knew a cove who'd never heard of Washington and Lee,

    Of Caesar and Napoleon from the ancient jamboree, But, bli'me, there are queerer things than anything like that,

    For here's a cove who never heard of `Casey at the Bat'!

    .....

    "Ten million never heard of Keats, or Shelley, Burns or Poe; But they know `the air was shattered by the force of Casey's blow';

    They never heard of Shakespeare, nor of Dickens, like as not, But they know the somber drama from old Mudville's haunted lot.

    "He never heard of Casey! Am I dreaming? Is it true? Is fame but windblown ashes when the summer day is through?

    Does greatness fade so quickly and is grandeur doomed to die That bloomed in early morning, ere the dusk rides down the sky?"

    125

    "He Never Heard of Casey" Grantland Rice, The Sportlight, New York Herald Tribune, June 1, 1926, p. 23.

    126

    [5] "These are the saddest of possible words, `Tinker to Evers to chance.'

    127

    Trio of bear cubs, and fleeter than birds, `Tinker to Evers to Chance.'

    128

    Ruthlessly pricking our gonfalon bubble, Making a Giant hit into a double— Words that are weighty with nothing but trouble: `Tinker to Evers to Chance.' "

    129

    Franklin Pierce Adams, Baseball's Sad Lexicon.

    130

    [6] George Bernard Shaw, The Sporting News, May 27, 1943, p. 15, col. 4.

    131

    [7] Concededly supported by the Major League Baseball Players Association, the players' collective-bargaining representative. Tr. of Oral Arg. 12.

    132

    [8] The parties agreed that Flood's participating in baseball in 1971 would be without prejudice to his case.

    133

    [9] "And properly so. Baseball's welfare and future should not be for politically insulated interpreters of technical antitrust statutes but rather should be for the voters through their elected representatives. If baseball is to be damaged by statutory regulation, let the congressman face his constituents the next November and also face the consequences of his baseball voting record." 443 F. 2d, at 272.

    134

    Cf. Judge Friendly's comments in Salerno v. American League, 429 F. 2d 1003, 1005 (CA2 1970), cert. denied, sub nom. Salerno v. Kuhn, 400 U. S. 1001 (1971):

    135

    "We freely acknowledge our belief that Federal Baseball was not one of Mr. Justice Holmes' happiest days, that the rationale of Toolson is extremely dubious and that, to use the Supreme Court's own adjectives, the distinction between baseball and other professional sports is `unrealistic,' `inconsistent' and `illogical.'. . . While we should not fall out of our chairs with surprise at the news that Federal Baseball and Toolson had been overruled, we are not at all certain the Court is ready to give them a happy despatch."

    136

    [10] "What really saved baseball, legally at least, for the next half century was the protective canopy spread over it by the United States Supreme Court's decision in the Baltimore Federal League anti-trust suit against Organized Baseball in 1922. In it Justice Holmes, speaking for a unanimous court, ruled that the business of giving baseball exhibitions for profit was not `trade or commerce in the commonly-accepted use of those words' because `personal effort, not related to production, is not a subject of commerce'; nor was it interstate, because the movement of ball clubs across state lines was merely `incidental' to the business. It should be noted that, contrary to what many believe, Holmes did call baseball a business; time and again those who have not troubled to read the text of the decision have claimed incorrectly that the court said baseball was a sport and not a business." 2 H. Seymour, Baseball 420 (1971).

    137

    [11] On remand of the Hart case the trial court dismissed the complaint at the close of the evidence. The Second Circuit affirmed on the ground that the plaintiff's evidence failed to establish that the interstate transportation was more than incidental. 12 F. 2d 341 (1926). This Court denied certiorari, 273 U. S. 703 (1926).

    138

    [12] Toolson v. New York Yankees, Inc., 101 F. Supp. 93 (SD Cal. 1951), aff'd, 200 F. 2d 198 (CA9 1952); Kowalski v. Chandler, 202 F. 2d 413 (CA6 1953). See Salerno v. American League, 429 F. 2d 1003 (CA2 1970), cert, denied, sub nom. Salerno v. Kuhn, 400 U. S. 1001 (1971). But cf. Gardella v. Chandler, 172 F. 2d 402 (CA2 1949) (this case, we are advised, was subsequently settled); Martin v. National League Baseball Club, 174 F. 2d 917 (CA2 1949).

    139

    [13] Corbett v. Chandler, 202 F. 2d 428 (Ca6 1953); Portland Baseball Club, Inc. v. Baltimore Baseball Club, Inc., 282 F. 2d 680 (CA9 1960); Niemiec v. Seattle Rainier Baseball Club, Inc., 67 F. Supp. 705 (WD Wash. 1946). See State v. Milwaukee Braves, Inc., 31 Wis. 2d 699, 144 N. W. 2d 1, cert. denied, 385 U. S. 990 (1966).

    140

    [14] The case's final chapter is International Boxing Club v. United States, 358 U. S. 242 (1959).

    141

    [15] See also Denver Rockets v. All-Pro Management, Inc., 325 F. Supp. 1049, 1060 (CD Cal. 1971); Washington Professional Basketball Corp. v. National Basketball Assn., 147 F. Supp. 154 (SDNY 1956).

    142

    [16] Neville, Baseball and the Antitrust Laws, 16 Fordham L. Rev. 208 (1947); Eckler, Baseball—Sport or Commerce?, 17 U. Chi. L. Rev. 56 (1949); Comment, Monopsony in Manpower: Organized Baseball Meets the Antitrust Laws, 62 Yale L. J. 576 (1953); P. Gregory, The Baseball Player, An Economic Study, c. 19 (1956); Note, The Super Bowl and the Sherman Act: Professional Team Sports and the Antitrust Laws, 81 Harv. L. Rev. 418 (1967); The Supreme Court, 1953 Term, 68 Harv. L. Rev. 105, 136-138 (1954); The Supreme Court, 1956 Term, 71 Harv. L. Rev. 94, 170-173 (1957); Note, 32 Va. L. Rev. 1164 (1946); Note, 24 Notre Dame Law. 372 (1949); Note, 53 Col. L. Rev. 242 (1953); Note, 22 U. Kan. City L. Rev. 173 (1954); Note, 25 Miss. L. J. 270 (1954); Note, 29 N. Y. U. L. Rev. 213 (1954); Note, 105 U. Pa. L. Rev. 110 (1956); Note, 32 Texas L. Rev. 890 (1954); Note, 35 B. U. L. Rev. 447 (1955); Note, 57 Col. L. Rev. 725 (1957); Note, 23 Geo. Wash. L. Rev. 606 (1955); Note, 1 How. L. J. 281 (1955); Note, 26 Miss. L. J. 271 (1955); Note, 9 Sw. L. J. 369 (1955); Note, 29 Temple L. Q. 103 (1955); Note, 29 Tul. L. Rev. 793 (1955); Note, 62 Dick. L. Rev. 96 (1957); Note, 11 Sw. L. J. 516 (1957); Note, 36 N. C. L. Rev. 315 (1958); Note, 35 Fordham L. Rev. 350 (1966); Note, 8 B. C. Ind. & Com. L. Rev. 341 (1967); Note, 13 Wayne L. Rev. 417 (1967); Note, 2 Rutgers-Camden L. J. 302 (1970); Note, 8 San Diego L. Rev. 92 (1970); Note, 12 B. C. Ind. & Com. L. Rev. 737 (1971); Note, 12 Wm. & Mary L. Rev. 859 (1971).

    143

    [17] Hearings on H. R. 5307 et al. before the Antitrust Subcommittee of the House Committee on the Judiciary, 85th Cong., 1st Sess. (1957); Hearings on H. R. 10378 and S. 4070 before the Subcommittee on Antitrust and Monopoly of the Senate Committee on the Judiciary, 85th Cong., 2d Sess. (1958); Hearings on H. R. 2370 et al. before the Antitrust Subcommittee of the House Committee on the Judiciary, 86th Cong., 1st Sess. (1959) (not printed); Hearings on S. 616 and S. 886 before the Subcommittee on Antitrust and Monopoly of the Senate Committee on the Judiciary, 86th Cong., 1st Sess. (1959); Hearings on S. 3483 before the Subcommittee on Antitrust and Monopoly of the Senate Committee on the Judiciary, 86th Cong., 2d Sess. (1960); Hearings on S. 2391 before the Subcommittee on Antitrust and Monopoly of the Senate Committee on the Judiciary, 88th Cong., 2d Sess. (1964); S. Rep. No. 1303, 88th Cong., 2d Sess. (1964); Hearings on S. 950 before the Subcommittee on Antitrust and Monopoly of the Senate Committee on the Judiciary, 89th Cong., 1st Sess. (1965); S. Rep. No. 462, 89th Cong., 1st Sess. (1965). Bills introduced in the 92d Cong., 1st Sess., and bearing on the subject are S. 2599, S. 2616, H. R. 2305, H. R. 11033, and H. R. 10825.

    144

    [18] Title 15 U. S. C. § 1294 reads:

    145

    "Nothing contained in this chapter shall be deemed to change, determine, or otherwise affect the applicability or nonapplicability of the antitrust laws to any act, contract, agreement, rule, course of conduct, or other activity by, between, or among persons engaging in, conducting, or participating in the organized professional team sports of football, baseball, basketball, or hockey, except the agreements to which section 1291 of this title shall apply." (Emphasis supplied.)

    146

    [19] Peto v. Madison Square Garden Corp., 1958 Trade Cases, ¶ 69,106 (SDNY 1958).

    147

    [20] Deesen v. Professional Golfers' Assn., 358 F. 2d 165 (CA9), cert. denied, 385 U. S. 846 (1966).

    148

    [21] See Brief for Respondent in Federal Baseball, No. 204, O. T. 1921, p. 67, and in Toolson, No. 18, O. T. 1953, p. 30. See also State v. Milwaukee Braves, Inc., 31 Wis. 2d 699, 144 N. W. 2d 1, cert. denied, 385 U. S. 990 (1966).

    149

    [22] See Jacobs & Winter, Antitrust Principles and Collective Bargaining by Athletes: Of Superstars in Peonage, 81 Yale L. J. 1 (1971), suggesting present-day irrelevancy of the antitrust issue.

    150

    [23] While I joined the Court's opinion in Toolson v. New York Yankees, Inc., 346 U. S. 356, I have lived to regret it; and I would now correct what I believe to be its fundamental error.

    151

    [24] Had this same group boycott occurred in another industry, Klor's, Inc. v. Broadway-Hale Stores, Inc., 359 U. S. 207; United States v. Shubert, 348 U. S. 222; or even in another sport, Haywood v. National Basketball Assn., 401 U. S. 1204 (DOUGLAS, J., in chambers); Radovich v. National Football League, 352 U. S. 445; United States v. International Boxing Club, 348 U. S. 236; we would have no difficulty in sustaining petitioner's claim.

    152

    [25] The Court's reliance upon congressional inaction disregards the wisdom of Helvering v. Hallock, 309 U. S. 106, 119-121, where we said:

    153

    "Nor does want of specific Congressional repudiations . . . serve as an implied instruction by Congress to us not to reconsider, in the light of new experience . . . those decisions . . . . It would require very persuasive circumstances enveloping Congressional silence to debar this Court from re-examining its own doctrines. . . . Various considerations of parliamentary tactics and strategy might be suggested as reasons for the inaction of . . . Congress, but they would only be sufficient to indicate that we walk on quicksand when we try to find in the absence of corrective legislation a controlling legal principle."

    154

    And see United States v. South-Eastern Underwriters Assn., 322 U. S. 533, 556-561.

    155

    [26] This case gives us for the first time a full record showing the reserve clause in actual operation.

    156

    [27] Letter from Curt Flood to Bowie K. Kuhn, Dec. 24, 1969, App. 37.

    157

    [28] As MR. JUSTICE BLACKMUN points out, the reserve system is not novel. It has been employed since 1887. See Metropolitan Exhibition Co. v. Ewing, 42 F. 198, 202-204 (CC SDNY 1890). The club owners assert that it is necessary to preserve effective competition and to retain fan interest. The players do not agree and argue that the reserve system is overly restrictive. Before this lawsuit was instituted, the players refused to agree that the reserve system should be a part of the collective-bargaining contract. Instead, the owners and players agreed that the reserve system would temporarily remain in effect while they jointly investigated possible changes. Their activity along these lines has halted pending the outcome of this suit.

    158

    [29] Petitioner also alleged a violation of state antitrust laws, state civil rights laws, and of the common law, and claimed that he was forced into peonage and involuntary servitude in violation of the Thirteenth Amendment to the United States Constitution. Because I believe that federal antitrust laws govern baseball, I find that state law has been pre-empted in this area. Like the lower courts, I do not believe that there has been a violation of the Thirteenth Amendment.

    159

    [30] In the past this Court has not hesitated to change its view as to what constitutes interstate commerce. Compare United States v. Knight Co., 156 U. S. 1 (1895), with Mandeville Island Farms v. American Crystal Sugar Co., 334 U. S. 219 (1948), and United States v. Darby, 312 U. S. 100 (1941).

    160

    "The jurist concerned with `public confidence in, and acceptance of the judicial system' might well consider that, however admirable its resolute adherence to the law as it was, a decision contrary to the public sense of justice as it is, operates, so far as it is known, to diminish respect for the courts and for law itself." Szanton, Stare Decisis; A Dissenting View, 10 Hastings L. J. 394, 397 (1959).

    161

    [31] We said recently that "[i]n rare cases, decisions construing federal statutes might be denied full retroactive effect, as for instance where this Court overrules its own construction of a statute . . . ." United States v. Estate of Donnelly, 397 U. S. 286, 295 (1970). Cf. Simpson v. Union Oil Co. of California, 377 U. S. 13, 25 (1964).

    162

    [32] The lower courts did not reach the question of whether, assuming the antitrust laws apply, they have been violated. This should be considered on remand.

    163

    [33] Cf. United States v. Hutcheson, 312 U. S. 219 (1941).

    164

    [34] Jacobs & Winter, Antitrust Principles and Collective Bargaining by Athletes: Of Superstars in Peonage, 81 Yale L. J. 1, 22 (1971).

  • 2 Landgraf v. USI Film Products

    1

    511 U.S. 244 (1994)

    2
    LANDGRAF
    v.
    USI FILM PRODUCTS et al.

    No. 92-757.

    3

    United States Supreme Court.

    Argued October 13, 1993.
    Decided April 26, 1994.

    4

    CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

    5

    [245] [246] Stevens, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O'Connor, Souter, and Ginsburg, JJ., joined. Scalia, J., filed an opinion concurring in the judgment, in which Kennedy and Thomas, JJ., joined, post, p. 286. Blackmun, J., filed a dissenting opinion, post, p. 294.

    6

    Eric Schnapper argued the cause for petitioner. On the briefs were Paul C. Saunders, Timothy B. Garrigan, Richard T. Seymour, and Sharon R. Vinick.

    7

    Solicitor General Days argued the cause for the United States et al. as amici curiae urging reversal. On the brief were Acting Solicitor General Bryson, Acting Assistant Attorney General Turner, Deputy Solicitor General Wallace, Robert A. Long, Jr., David K. Flynn, Dennis J. Dimsey, Rebecca K. Troth, and Donald R. Livingston.

    8

    [247] Glen D. Nager argued the cause for respondents. On the brief was David N. Shane.[1]

    9
    Justice Stevens, delivered the opinion of the Court.
    10

    The Civil Rights Act of 1991 (1991 Act or Act) creates a right to recover compensatory and punitive damages for certain violations of Title VII of the Civil Rights Act of 1964. See Rev. Stat. § 1977A(a), 42 U. S. C. § 1981a(a) (1988 ed., Supp. IV), as added by § 102 of the 1991 Act, Pub. L. 102-166, 105 Stat. 1072. The Act further provides that any party may demand a trial by jury if such damages are sought.[2] We granted certiorari to decide whether these provisions apply to a Title VII case that was pending on appeal when the statute was enacted. We hold that they do not.

    11
    I
    12

    From September 4, 1984, through January 17, 1986, petitioner Barbara Landgraf was employed in the USI Film [248] Products (USI) plant in Tyler, Texas. She worked the 11 p.m. to 7 a.m. shift operating a machine that produced plastic bags. A fellow employee named John Williams repeatedly harassed her with inappropriate remarks and physical contact. Petitioner's complaints to her immediate supervisor brought her no relief,but when she reported the incidents to the personnel manager, he conducted an investigation, reprimanded Williams, and transferred him to another department. Four days later petitioner quit her job.

    13

    Petitioner filed a timely charge with the Equal Employment Opportunity Commission (EEOC or Commission). The Commission determined that petitioner had likely been the victim of sexual harassment creating a hostile work environment in violation of Title VII of the Civil Rights Act of 1964, 42 U. S. C. § 2000e et seq., but concluded that her employer had adequately remedied the violation. Accordingly, the Commission dismissed the charge and issued a notice of right to sue.

    14

    On July 21, 1989, petitioner commenced this action against USI, its corporate owner, and that company's successor in interest.[3] After a bench trial, the District Court found that Williams had sexually harassed petitioner causing her to suffer mental anguish. However, the court concluded that she had not been constructively discharged. The court said:

    15

    "Although the harassment was serious enough to establish that a hostile work environment existed for Landgraf, it was not so severe that a reasonable person would have felt compelled to resign. This is particularly true in light of the fact that at the time Landgraf resigned from her job, USI had taken steps . . . to eliminate the hostile working environment arising from the sexual harassment. Landgraf voluntarily resigned [249] from her employment with USI for reasons unrelated to the sexual harassment in question." App. to Pet. for Cert. B-3-4.

    16

    Because the court found that petitioner's employment was not terminated in violation of Title VII, she was not entitled to equitable relief,and because Title VII did not then authorize any other form of relief, the court dismissed her complaint.

    17

    On November 21, 1991, while petitioner's appeal was pending, the President signed into law the Civil Rights Act of 1991. The Court of Appeals rejected petitioner's argument that her case should be remanded for a jury trial on damages pursuant to the 1991 Act. Its decision not to remand rested on the premise that "a court must `apply the law in effect at the time it renders its decision, unless doing so would result in manifest injustice or there is statutory direction or legislative history to the contrary.' Bradley [v. School Bd. of Richmond, 416 U. S. 696, 711 (1974)]." 968 F. 2d 427, 432 (CA5 1992). Commenting first on the provision for a jury trial in § 102(c), the court stated that requiring the defendant "to retry this case because of a statutory change enacted after the trial was completed would be an injustice and a waste of judicial resources. We apply procedural rules to pending cases, but we do not invalidate procedures followed before the new rule was adopted." Id., at 432-433. The court then characterized the provision for compensatory and punitive damages in § 102 as "a seachange in employer liability for Title VII violations" and concluded that it would be unjust to apply this kind of additional and unforeseeable obligation to conduct occurring before the effective date of the Act. Id., at 433. Finding no clear error in the District Court's factual findings, the Court of Appeals affirmed the judgment for respondents.

    18

    We granted certiorari and set the case for argument with Rivers v. Roadway Express, Inc., post, p. 298. Our order limited argument to the question whether § 102 of the 1991 [250] Act applies to cases pending when it became law. 507 U. S. 908 (1993). Accordingly, for purposes of our decision, we assume that the District Court and the Court of Appeals properly applied the law in effect at the time of the discriminatory conduct and that the relevant findings of fact were correct. We therefore assume that petitioner was the victim of sexual harassment violative of Title VII, but that the law did not then authorize any recovery of damages even though she was injured. We also assume, arguendo, that if the same conduct were to occur today, petitioner would be entitled to a jury trial and that the jury might find that she was constructively discharged, or that her mental anguish or other injuries would support an award of damages against her former employer. Thus, the controlling question is whether the Court of Appeals should have applied the law in effect at the time the discriminatory conduct occurred, or at the time of its decision in July 1992.

    19
    II
    20

    Petitioner's primary submission is that the text of the 1991 Act requires that it be applied to cases pending on its enactment. Her argument, if accepted, would make the entire Act (with two narrow exceptions) applicable to conduct that occurred, and to cases that were filed, before the Act's effective date. Although only § 102 is at issue in this case, we preface our analysis with a brief description of the scope of the 1991 Act.

    21

    The 1991 Act is in large part a response to a series of decisions of this Court interpreting the Civil Rights Acts of 1866 and 1964. Section 3(4), 105 Stat. 1071, note following 42 U. S. C. § 1981, expressly identifies as one of the Act's purposes "to respond to recent decisions of the Supreme Court by expanding the scope of relevant civil rights statutes in order to provide adequate protection to victims of discrimination." That section, as well as a specific finding in § 2(2), identifies Wards Cove Packing Co. v. Atonio, 490 U. S. 642 [251] (1989), as a decision that gave rise to special concerns.[4] Section 105 of the Act, entitled "Burden of Proof in Disparate Impact Cases," is a direct response to Wards Cove.

    22

    Other sections of the Act were obviously drafted with "recent decisions of the Supreme Court" in mind. Thus, § 101 (which is at issue in Rivers, post, p. 298) amended the 1866 Civil Rights Act's prohibition of racial discrimination in the "mak[ing] and enforce[ment] [of] contracts," 42 U. S. C. § 1981 (1988 ed., Supp. IV), in response to Patterson v. McLean Credit Union, 491 U. S. 164 (1989); § 107 responds to Price Waterhouse v. Hopkins, 490 U. S. 228 (1989), by setting forth standards applicable in "mixed motive" cases; § 108 responds to Martin v. Wilks, 490 U. S. 755 (1989), by prohibiting certain challenges to employment practices implementing consent decrees; § 109 responds to EEOC v. Arabian American Oil Co., 499 U. S. 244 (1991), by redefining the term "employee" as used in Title VII to include certain United States citizens working in foreign countries for United States employers; § 112 responds to Lorance v. AT&T; Technologies, Inc., 490 U. S. 900 (1989), by expanding employees' rights to challenge discriminatory seniority systems; § 113 responds to West Virginia Univ. Hospitals, Inc. v. Casey, 499 U. S. 83 (1991), by providing that an award of attorney's fees may include expert fees; and § 114 responds to Library of Congress v. Shaw, 478 U. S. 310 (1986), by allowing interest on judgments against the United States.

    23

    A number of important provisions in the Act, however, were not responses to Supreme Court decisions. For example, § 106 enacts a new prohibition against adjusting test [252] scores "on the basis of race, color, religion, sex, or national origin"; § 117 extends the coverage of Title VII to include the House of Representatives and certain employees of the Legislative Branch; and §§ 301-325 establish special procedures to protect Senate employees from discrimination. Among the provisions that did not directly respond to any Supreme Court decision is the one at issue in this case, § 102.

    24

    Entitled "Damages in Cases of Intentional Discrimination," § 102 provides in relevant part:

    25

    "(a) Right of Recovery.—

    "(1) Civil Rights.—In an action brought by a complaining party under section 706 or 717 of the Civil Rights Act of 1964 (42 U. S. C. 2000e—5) against a respondent who engaged in unlawful intentional discrimination (not an employment practice that is unlawful because of its disparate impact) prohibited under section 703, 704, or 717 of the Act (42 U. S. C. 2000e—2 or 2000e— 3), and provided that the complaining party cannot recover under section 1977 of the Revised Statutes (42 U. S. C. 1981), the complaining party may recover compensatory and punitive damages . . . in addition to any relief authorized by section 706(g) of the Civil Rights Act of 1964, from the respondent. . . . . .

    "(c) Jury Trial.—If a complaining party seeks compensatory or punitive damages under this section—

    "(1) any party may demand a trial by jury."

    26

    Before the enactment of the 1991 Act, Title VII afforded only "equitable" remedies. The primary form of monetary relief available was backpay.[5] Title VII's backpay remedy,[6] [253] modeled on that of the National Labor Relations Act, 29 U. S. C. § 160(c), is a "make-whole" remedy that resembles compensatory damages in some respects. See Albemarle Paper Co. v. Moody, 422 U. S. 405, 418-422 (1975). However, the new compensatory damages provision of the 1991 Act is "in addition to," and does not replace or duplicate, the backpay remedy allowed under prior law. Indeed, to prevent double recovery, the 1991 Act provides that compensatory damages "shall not include backpay, interest on backpay, or any other type of relief authorized under section 706(g) of the Civil Rights Act of 1964." § 102(b)(2).

    27

    Section 102 significantly expands the monetary relief potentially available to plaintiffs who would have been entitled to backpay under prior law. Before 1991, for example, monetary relief for a discriminatorily discharged employee generally included "only an amount equal to the wages the employee would have earned from the date of discharge to the date of reinstatement, along with lost fringe benefits such as vacation pay and pension benefits." United States v. Burke, 504 U. S. 229, 239 (1992). Under § 102, however, a Title VII plaintiff who wins a backpay award may also seek compensatory damages for "future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses." § 102(b)(3). In addition, [254] when it is shown that the employer acted "with malice or with reckless indifference to the [plaintiff's] federally protected rights," § 102(b)(1), a plaintiff may recover punitive damages.[7]

    28

    Section 102 also allows monetary relief for some forms of workplace discrimination that would not previously have justified any relief under Title VII. As this case illustrates, even if unlawful discrimination was proved, under prior law a Title VII plaintiff could not recover monetary relief unless the discrimination was also found to have some concrete effect on the plaintiff's employment status, such as a denied promotion, a differential in compensation, or termination. See Burke, 504 U. S., at 240. ("[T]he circumscribed remedies available under Title VII [before the 1991 Act] stand in marked contrast not only to those available under traditional tort law, but under other federal anti-discrimination statutes, as well"). Section 102, however, allows a plaintiff to recover in circumstances in which there has been unlawful discrimination in the "terms, conditions, or privileges of employment," 42 U. S. C. § 2000e—2(a)(1),[8] even though the discrimination did not involve a discharge or a loss of pay. In short, to further Title VII's "central statutory purposes of eradicating discrimination throughout the economy and making persons whole for injuries suffered through past discrimination," Albemarle Paper Co., 422 U. S., at 421, § 102 of the [255] 1991 Act effects a major expansion in the relief available to victims of employment discrimination.

    29

    In 1990, a comprehensive civil rights bill passed both Houses of Congress. Although similar to the 1991 Act in many other respects, the 1990 bill differed in that it contained language expressly calling for application of many of its provisions, including the section providing for damages in cases of intentional employment discrimination, to cases arising before its (expected) enactment.[9] The President vetoed [256] the 1990 legislation, however, citing the bill's "unfair retroactivity rules" as one reason for his disapproval.[10] Congress narrowly failed to override the veto. See 136 Cong. Rec. S16589 (Oct. 24, 1990) (66 to 34 Senate vote in favor of override).

    30

    The absence of comparable language in the 1991 Act cannot realistically be attributed to oversight or to unawareness of the retroactivity issue. Rather, it seems likely that one of the compromises that made it possible to enact the 1991 version was an agreement not to include the kind of explicit retroactivity command found in the 1990 bill.

    31

    The omission of the elaborate retroactivity provision of the 1990 bill—which was by no means the only source of political controversy over that legislation—is not dispositive because it does not tell us precisely where the compromise was struck in the 1991 Act. The Legislature might, for example, have settled in 1991 on a less expansive form of retroactivity that, unlike the 1990 bill, did not reach cases already finally decided. See n. 8, supra. A decision to reach only cases still pending might explain Congress' failure to provide in the [257] 1991 Act, as it had in 1990, that certain sections would apply to proceedings pending on specific preenactment dates. Our first question, then, is whether the statutory text on which petitioner relies manifests an intent that the 1991 Act should be applied to cases that arose and went to trial before its enactment.

    32
    III
    33

    Petitioner's textual argument relies on three provisions of the 1991 Act: §§ 402(a), 402(b), and 109(c). Section 402(a), the only provision of the Act that speaks directly to the question before us, states:

    34

    "Except as otherwise specifically provided, this Act and the amendments made by this Act shall take effect upon enactment."

    35

    That language does not, by itself, resolve the question before us. A statement that a statute will become effective on a certain date does not even arguably suggest that it has any application to conduct that occurred at an earlier date.[11] [258] Petitioner does not argue otherwise. Rather, she contends that the introductory clause of § 402(a) would be superfluous unless it refers to §§ 402(b) and 109(c), which provide for prospective application in limited contexts.

    36

    The parties agree that § 402(b) was intended to exempt a single disparate impact lawsuit against the Wards Cove Packing Company. Section 402(b) provides:

    37

    "(b) Certain Disparate Impact Cases.óNotwithstanding any other provision of this Act, nothing in this Act shall apply to any disparate impact case for which a complaint was filed before March 1, 1975, and for which an initial decision was rendered after October 30, 1983."

    38

    Section 109(c), part of the section extending Title VII to overseas employers, states:

    39

    "(c) Application of Amendments.—The amendments made by this section shall not apply with respect to conduct occurring before the date of the enactment of this Act."

    40

    According to petitioner, these two subsections are the "other provisions" contemplated in the first clause of § 402(a), and together create a strong negative inference that all sections of the Act not specifically declared prospective apply to pending cases that arose before November 21, 1991.

    41

    Before addressing the particulars of petitioner's argument, we observe that she places extraordinary weight on two comparatively minor and narrow provisions in a long and complex statute. Applying the entire Act to cases arising from preenactment conduct would have important consequences, including the possibility that trials completed before its enactment [259] would need to be retried and the possibility that employers would be liable for punitive damages for conduct antedating the Act's enactment. Purely prospective application, on the other hand, would prolong the life of a remedial scheme, and of judicial constructions of civil rights statutes, that Congress obviously found wanting. Given the high stakes of the retroactivity question, the broad coverage of the statute, and the prominent and specific retroactivity provisions in the 1990 bill, it would be surprising for Congress to have chosen to resolve that question through negative inferences drawn from two provisions of quite limited effect.

    42

    Petitioner, however, invokes the canon that a court should give effect to every provision of a statute and thus avoid redundancy among different provisions. See, e. g., Mackey v. Lanier Collection Agency & Service, Inc., 486 U. S. 825, 837, and n. 11 (1988). Unless the word "otherwise" in § 402(a) refers to either § 402(b) or § 109(c), she contends, the first five words in § 402(a) are entirely superfluous. Moreover, relying on the canon "[e]xpressio unius est exclusio alterius, " see Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U. S. 163, 168 (1993), petitioner argues that because Congress provided specifically for prospectivity in two places (§§ 109(c) and 402(b)), we should infer that it intended the opposite for the remainder of the statute.

    43

    Petitioner emphasizes that § 402(a) begins: "Except as otherwise specifically provided." A scan of the statute for other "specific provisions" concerning effective dates reveals that §§ 402(b) and 109(c) are the most likely candidates. Since those provisions decree prospectivity, and since § 402(a) tells us that the specific provisions are exceptions, § 402(b) should be considered as prescribing a general rule of retroactivity. Petitioner's argument has some force, but we find it most unlikely that Congress intended the introductory clause to carry the critically important meaning petitioner assigns it. Had Congress wished § 402(a) to have such a determinate [260] meaning, it surely would have used language comparable to its reference to the predecessor Title VII damages provisions in the 1990 legislation: that the new provisions "shall apply to all proceedings pending on or commenced after the date of enactment of this Act." S. 2104, 101st Cong., 1st Sess. § 15(a)(4) (1990).

    44

    It is entirely possible that Congress inserted the "otherwise specifically provided" language not because it understood the "takes effect" clause to establish a rule of retroactivity to which only two "other specific provisions" would be exceptions, but instead to assure that any specific timing provisions in the Act would prevail over the general "take effect on enactment" command. The drafters of a complicated piece of legislation containing more than 50 separate sections may well have inserted the "except as otherwise provided" language merely to avoid the risk of an inadvertent conflict in the statute.[12] If the introductory clause of § 402(a) was intended to refer specifically to §§ 402(b), 109(c), or both, it is difficult to understand why the drafters chose the word "otherwise" rather than either or both of the appropriate section numbers.

    45

    We are also unpersuaded by petitioner's argument that both §§ 402(b) and 109(c) merely duplicate the "take effect upon enactment" command of § 402(a) unless all other provisions, including the damages provisions of § 102, apply to pending cases. That argument depends on the assumption that all those other provisions must be treated uniformly for purposes of their application to pending cases based on preenactment conduct. That thesis, however, is by no [261] means an inevitable one. It is entirely possible—indeed, highly probable—that, because it was unable to resolve the retroactivity issue with the clarity of the 1990 legislation, Congress viewed the matter as an open issue to be resolved by the courts. Our precedents on retroactivity left doubts about what default rule would apply in the absence of congressional guidance, and suggested that some provisions might apply to cases arising before enactment while others might not.[13] Compare Bowen v. Georgetown Univ. Hospital, 488 U. S. 204 (1988), with Bradley v. School Bd. of Richmond, 416 U. S. 696 (1974). See also Bennett v. New Jersey, 470 U. S. 632 (1985). The only matters Congress did not leave to the courts were set out with specificity in §§ 109(c) and 402(b). Congressional doubt concerning judicial retroactivity doctrine, coupled with the likelihood that the routine "take effect upon enactment" language would require courts to fall back upon that doctrine, provide a plausible explanation for both §§ 402(b) and 109(c) that makes neither provision redundant.

    46

    Turning to the text of § 402(b), it seems unlikely that the introductory phrase ("Notwithstanding any other provision of this Act") was meant to refer to the immediately preceding subsection. Since petitioner does not contend that any other provision speaks to the general effective date issue, the logic of her argument requires us to interpret that phrase to mean nothing more than "Notwithstanding § 402(a)." Petitioner's textual argument assumes that the drafters selected the indefinite word "otherwise" in § 402(a) to identify two [262] specific subsections and the even more indefinite term "any other provision" in § 402(b) to refer to nothing more than § 402(b)'s next-door neighbor—§ 402(a). Here again, petitioner's statutory argument would require us to assume that Congress chose a surprisingly indirect route to convey an important and easily expressed message concerning the Act's effect on pending cases.

    47

    The relevant legislative history of the 1991 Act reinforces our conclusion that §§ 402(a), 109(c), and 402(b) cannot bear the weight petitioner places upon them. The 1991 bill as originally introduced in the House contained explicit retroactivity provisions similar to those found in the 1990 bill.[14] However, the Senate substitute that was agreed upon omitted those explicit retroactivity provisions.[15] The legislative history discloses some frankly partisan statements about the meaning of the final effective date language, but those statements cannot plausibly be read as reflecting any general agreement.[16] The history reveals no evidence that Members [263] believed that an agreement had been tacitly struck on the controversial retroactivity issue, and little to suggest that Congress understood or intended the interplay of §§ 402(a), 402(b), and 109(c) to have the decisive effect petitioner assigns them. Instead, the history of the 1991 Act conveys the impression that legislators agreed to disagree about whether and to what extent the Act would apply to preenactment conduct.

    48

    Although the passage of the 1990 bill may indicate that a majority of the 1991 Congress also favored retroactive application, even the will of the majority does not become law unless it follows the path charted in Article I, § 7, cl. 2, of the Constitution. See INS v. Chadha, 462 U. S. 919, 946-951 (1983). In the absence of the kind of unambiguous directive found in § 15 of the 1990 bill, we must look elsewhere for guidance on whether § 102 applies to this case.

    49
    IV
    50

    It is not uncommon to find "apparent tension" between different canons of statutory construction. As Professor Llewellyn famously illustrated, many of the traditional canons have equal opposites.[17] In order to resolve the question left open by the 1991 Act, federal courts have labored to [264] reconcile two seemingly contradictory statements found in our decisions concerning the effect of intervening changes in the law. Each statement is framed as a generally applicable rule for interpreting statutes that do not specify their temporal reach. The first is the rule that "a court is to apply the law in effect at the time it renders its decision," Bradley, 416 U. S., at 711. The second is the axiom that "[r]etroactivity is not favored in the law," and its interpretive corollary that "congressional enactments and administrative rules will not be construed to have retroactive effect unless their language requires this result." Bowen, 488 U. S., at 208.

    51

    We have previously noted the "apparent tension" between those expressions. See Kaiser Aluminum & Chemical Corp. v. Bonjorno, 494 U. S. 827, 837 (1990); see also Bennett, 470 U. S., at 639-640. We found it unnecessary in Kaiser to resolve that seeming conflict "because under either view, where the congressional intent is clear, it governs," and the prejudgment interest statute at issue in that case evinced "clear congressional intent" that it was "not applicable to judgments entered before its effective date." 499 U. S., at 837-838. In the case before us today, however, we have concluded that the 1991 Act does not evince any clear expression of intent on § 102's application to cases arising before the Act's enactment. We must, therefore, focus on the apparent tension between the rules we have espoused for handling similar problems in the absence of an instruction from Congress.

    52

    We begin by noting that there is no tension between the holdings in Bradley and Bowen, both of which were unanimous decisions. Relying on another unanimous decision— Thorpe v. Housing Authority of Durham, 393 U. S. 268 (1969)—we held in Bradley that a statute authorizing the award of attorney's fees to successful civil rights plaintiffs applied in a case that was pending on appeal at the time the statute was enacted. Bowen held that the Department of Health and Human Services lacked statutory authority to [265] promulgate a rule requiring private hospitals to refund Medicare payments for services rendered before promulgation of the rule. Our opinion in Bowen did not purport to overrule Bradley or to limit its reach. In this light, we turn to the "apparent tension" between the two canons mindful of another canon of unquestionable vitality, the "maxim not to be disregarded that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used." Cohens v. Virginia, 6 Wheat. 264, 399 (1821).

    53
    A
    54

    As Justice Scalia has demonstrated, the presumption against retroactive legislation is deeply rooted in our jurisprudence, and embodies a legal doctrine centuries older than our Republic.[18] Elementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly; settled expectations should not be lightly disrupted.[19] For that reason, the "principle that the legal effect of conduct should ordinarily be assessed under the law that existed when the conduct took place has timeless and universal appeal." Kaiser, 494 U. S., at 855 (Scalia, J., concurring). In [266] a free, dynamic society, creativity in both commercial and artistic endeavors is fostered by a rule of law that gives people confidence about the legal consequences of their actions.

    55

    It is therefore not surprising that the antiretroactivity principle finds expression in several provisions of our Constitution. The Ex Post Facto Clause flatly prohibits retroactive application of penal legislation.[20] Article I, § 10, cl. 1, prohibits States from passing another type of retroactive legislation, laws "impairing the Obligation of Contracts." The Fifth Amendment's Takings Clause prevents the Legislature (and other government actors) from depriving private persons of vested property rights except for a "public use" and upon payment of "just compensation." The prohibitions on "Bills of Attainder" in Art. I, §§ 9-10, prohibit legislatures from singling out disfavored persons and meting out summary punishment for past conduct. See, e. g., United States v. Brown, 381 U. S. 437, 456-462 (1965). The Due Process Clause also protects the interests in fair notice and repose that may be compromised by retroactive legislation; a justification sufficient to validate a statute's prospective application under the Clause "may not suffice" to warrant its retroactive application. Usery v. Turner Elkhorn Mining Co., 428 U. S. 1, 17 (1976).

    56

    These provisions demonstrate that retroactive statutes raise particular concerns. The Legislature's unmatched powers allow it to sweep away settled expectations suddenly and without individualized consideration. Its responsivity to political pressures poses a risk that it may be tempted to use retroactive legislation as a means of retribution against unpopular groups or individuals. As Justice Marshall observed in his opinion for the Court in Weaver v. Graham, 450 U. S. 24 (1981), the Ex Post Facto Clause not only ensures [267] that individuals have "fair warning" about the effect of criminal statutes, but also "restricts governmental power by restraining arbitrary and potentially vindictive legislation." Id., at 28-29 (citations omitted).[21]

    57

    The Constitution's restrictions, of course, are of limited scope. Absent a violation of one of those specific provisions, the potential unfairness of retroactive civil legislation is not a sufficient reason for a court to fail to give a statute its intended scope.[22] Retroactivity provisions often serve entirely [268] benign and legitimate purposes, whether to respond to emergencies, to correct mistakes, to prevent circumvention of a new statute in the interval immediately preceding its passage, or simply to give comprehensive effect to a new law Congress considers salutary. However, a requirement that Congress first make its intention clear helps ensure that Congress itself has determined that the benefits of retroactivity outweigh the potential for disruption or unfairness.

    58

    While statutory retroactivity has long been disfavored, deciding when a statute operates "retroactively" is not always a simple or mechanical task. Sitting on Circuit, Justice Story offered an influential definition in Society for Propagation of the Gospel v. Wheeler, 22 F. Cas. 756 (No. 13,156) (CC NH 1814), a case construing a provision of the New Hampshire Constitution that broadly prohibits "retrospective" laws both criminal and civil.[23] Justice Story first rejected the notion that the provision bars only explicitly retroactive legislation, i. e., "statutes . . . enacted to take effect from a time anterior to their passage." Id., at 767. Such a construction, he concluded, would be "utterly subversive of all the objects" of the prohibition. Ibid. Instead, the ban on retrospective legislation embraced "all statutes, which, though operating only from their passage, affect vested [269] rights and past transactions." Ibid. "Upon principle," Justice Story elaborated,

    59

    "every statute, which takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past, must be deemed retrospective . . . ." Ibid. (citing Calder v. Bull, 3 Dall. 386 (1798), and Dash v. Van Kleeck, 7 Johns. *477 (N. Y. 1811)).

    60

    Though the formulas have varied, similar functional conceptions of legislative "retroactivity" have found voice in this Court's decisions and elsewhere.[24]

    61

    A statute does not operate "retrospectively" merely because it is applied in a case arising from conduct antedating the statute's enactment, see Republic Nat. Bank of Miami v. United States, 506 U. S. 80, 100 (1992) (Thomas, J., concurring in part and concurring in judgment), or upsets expectations based in prior law.[25] Rather, the court must ask [270] whether the new provision attaches new legal consequences to events completed before its enactment. The conclusion that a particular rule operates "retroactively" comes at the end of a process of judgment concerning the nature and extent of the change in the law and the degree of connection between the operation of the new rule and a relevant past event. Any test of retroactivity will leave room for disagreement in hard cases, and is unlikely to classify the enormous variety of legal changes with perfect philosophical clarity. However, retroactivity is a matter on which judges tend to have "sound . . . instinct[s]," see Danforth v. Groton Water Co., 178 Mass. 472, 476, 59 N. E. 1033, 1034 (1901) (Holmes, J.), and familiar considerations of fair notice, reasonable reliance, and settled expectations offer sound guidance.

    62

    Since the early days of this Court, we have declined to give retroactive effect to statutes burdening private rights unless Congress had made clear its intent. Thus, in United States v. Heth, 3 Cranch 399 (1806), we refused to apply a federal statute reducing the commissions of customs collectors to collections commenced before the statute's enactment because the statute lacked "clear, strong, and imperative" language requiring retroactive application, id., at 413 (opinion of Paterson, J.). The presumption against statutory retroactivity has consistently been explained by reference to the unfairness of imposing new burdens on persons after the fact. Indeed, at common law a contrary rule applied to statutes that merely removed a burden on private rights by repealing a penal provision (whether criminal or civil); such [271] repeals were understood to preclude punishment for acts antedating the repeal. See, e. g. ,United States v. Chambers, 291 U. S. 217, 223-224 (1934); Gulf, C. & S. F. R. Co. v. Dennis, 224 U. S. 503, 506 (1912); United States v. Tynen, 11 Wall. 88, 93-95 (1871); Norris v. Crocker, 13 How. 429, 440-441 (1852); Maryland ex rel. Washington Cty. v. Baltimore & Ohio R. Co., 3 How. 534, 552 (1845); Yeaton v. United States, 5 Cranch 281, 284 (1809). But see 1 U. S. C. § 109 (repealing common-law rule).

    63

    The largest category of cases in which we have applied the presumption against statutory retroactivity has involved new provisions affecting contractual or property rights, matters in which predictability and stability are of prime importance.[26] The presumption has not, however, been limited to such cases. At issue in Chew Heong v. United States, 112 U. S. 536 (1884), for example, was a provision of the "Chinese Restriction Act" of 1882 barring Chinese laborers from reentering the United States without a certificate prepared when they exited this country. We held that the statute did not bar the reentry of a laborer who had left the United States before the certification requirement was promulgated. Justice Harlan's opinion for the Court observed that the law in effect before the 1882 enactment had accorded laborers a right to reenter without a certificate, and invoked the "uniformly" accepted rule against "giv[ing] to statutes a retrospective [272] operation, whereby rights previously vested are injuriously affected, unless compelled to do so by language so clear and positive as to leave no room to doubt that such was the intention of the legislature." Id., at 559.

    64

    Our statement in Bowen that "congressional enactments and administrative rules will not be construed to have retroactive effect unless their language requires this result," 488 U. S., at 208, was in step with this long line of cases.[27] Bowen itself was a paradigmatic case of retroactivity in which a federal agency sought to recoup, under cost limit regulations issued in 1984, funds that had been paid to hospitals for services rendered earlier, see id., at 207; our search for clear congressional intent authorizing retroactivity was consistent with the approach taken in decisions spanning two centuries.

    65

    The presumption against statutory retroactivity had special force in the era in which courts tended to view legislative interference with property and contract rights circumspectly. In this century, legislation has come to supply the dominant means of legal ordering, and circumspection has given way to greater deference to legislative judgments. See Usery v. Turner Elkhorn Mining Co., 428 U. S., at 15-16; Home Building & Loan Assn. v. Blaisdell, 290 U. S. 398, 436-444 (1934). But while the constitutional impediments to retroactive civil legislation are now modest, prospectivity remains the appropriate default rule. Because it accords with widely held intuitions about how statutes ordinarily operate, a presumption against retroactivity will generally coincide with legislative and public expectations. Requiring clear intent assures that Congress itself has affirmatively considered the potential unfairness of retroactive application and determined that it is an acceptable price [273] to pay for the countervailing benefits. Such a requirement allocates to Congress responsibility for fundamental policy judgments concerning the proper temporal reach of statutes, and has the additional virtue of giving legislators a predictable background rule against which to legislate.

    66
    B
    67

    Although we have long embraced a presumption against statutory retroactivity, for just as long we have recognized that, in many situations, a court should "apply the law in effect at the time it renders its decision," Bradley, 416 U. S., at 711, even though that law was enacted after the events that gave rise to the suit. There is, of course, no conflict between that principle and a presumption against retroactivity when the statute in question is unambiguous. Chief Justice Marshall's opinion in United States v. Schooner Peggy, 1 Cranch 103 (1801), illustrates this point. Because a treaty signed on September 30, 1800, while the case was pending on appeal, unambiguously provided for the restoration of captured property "not yet definitively condemned," id., at 107 (emphasis in original), we reversed a decree entered on September 23, 1800, condemning a French vessel that had been seized in American waters. Our application of "the law in effect" at the time of our decision in Schooner Peggy was simply a response to the language of the statute. Id., at 109.

    68

    Even absent specific legislative authorization, application of new statutes passed after the events in suit is unquestionably proper in many situations. When the intervening statute authorizes or affects the propriety of prospective relief, application of the new provision is not retroactive. Thus, in American Steel Foundries v. Tri-City Central Trades Council, 257 U. S. 184 (1921), we held that § 20 of the Clayton Act, enacted while the case was pending on appeal, governed the propriety of injunctive relief against labor picketing. In remanding the suit for application of the intervening statute, [274] we observed that "relief by injunction operates in futuro, " and that the plaintiff had no "vested right" in the decree entered by the trial court. 257 U. S., at 201. See also, e. g., Hall v. Beals, 396 U. S. 45, 48 (1969); Duplex Printing Press Co. v. Deering, 254 U. S. 443, 464 (1921).

    69

    We have regularly applied intervening statutes conferring or ousting jurisdiction, whether or not jurisdiction lay when the underlying conduct occurred or when the suit was filed. Thus, in Bruner v. United States, 343 U. S. 112, 116-117 (1952), relying on our "consisten[t]" practice, we ordered an action dismissed because the jurisdictional statute under which it had been (properly) filed was subsequently repealed.[28] See also Hallowell v. Commons, 239 U. S. 506, 508-509 (1916); Assessors v. Osbornes, 9 Wall. 567, 575 (1870). Conversely, in Andrus v. Charlestone Stone Products Co., 436 U. S. 604, 607-608, n. 6 (1978), we held that, because a statute passed while the case was pending on appeal had eliminated the amount-in-controversy requirement for federal-question cases, the fact that respondent had failed to allege $10,000 in controversy at the commencement of the action was "now of no moment." See also United States v. Alabama, 362 U. S. 602, 604 (1960) (per curiam); Stephens v. Cherokee Nation, 174 U. S. 445, 478 (1899). Application of a new jurisdictional rule usually "takes away no substantive right but simply changes the tribunal that is to hear the case." Hallowell, 239 U. S., at 508. Present law normally governs in such situations because jurisdictional statutes "speak to the power of the court rather than to the rights or obligations of the parties," Republic Nat. Bank of Miami , 506 U. S., at 100 (Thomas, J., concurring).

    70

    [275] Changes in procedural rules may often be applied in suits arising before their enactment without raising concerns about retroactivity. For example, in Ex parte Collett, 337 U. S. 55, 71 (1949), we held that 28 U. S. C. § 1404(a) governed the transfer of an action instituted prior to that statute's enactment. We noted the diminished reliance interests in matters of procedure. 337 U. S., at 71.[29] Because rules of procedure regulate secondary rather than primary conduct, the fact that a new procedural rule was instituted after the conduct giving rise to the suit does not make application of the rule at trial retroactive. Cf. McBurney v. Carson, 99 U. S. 567, 569 (1879).[30]

    71

    [276] Petitioner relies principally upon Bradley v. School Bd. of Richmond, 416 U. S. 696 (1974), and Thorpe v. Housing Authority of Durham, 393 U. S. 268 (1969), in support of her argument that our ordinary interpretive rules support application of § 102 to her case. In Thorpe , we held that an agency circular requiring a local housing authority to give notice of reasons and opportunity to respond before evicting a tenant was applicable to an eviction proceeding commenced before the regulation issued. Thorpe shares much with both the "procedural" and "prospective-relief" cases. See supra, at 273-275. Thus, we noted in Thorpe that new hearing procedures did not affect either party's obligations under the lease agreement between the housing authority and the petitioner, 393 U. S., at 279, and, because the tenant had "not yet vacated," we saw no significance in the fact that the housing authority had "decided to evict her before the circular was issued," id., at 283. The Court in Thorpe viewed the new eviction procedures as "essential to remove a serious impediment to the successful protection of constitutional rights." Ibid.[31] Cf. Youakim v. Miller, 425 U. S. 231, 237 (1976) (per curiam) (citing Thorpe for propriety of applying new law to avoiding necessity of deciding constitutionality of old one).

    72

    Our holding in Bradley is similarly compatible with the line of decisions disfavoring "retroactive" application of statutes. In Bradley, the District Court had awarded attorney's fees and costs, upon general equitable principles, to parents who had prevailed in an action seeking to desegregate the public schools of Richmond, Virginia. While the [277] case was pending before the Court of Appeals, Congress enacted § 718 of the Education Amendments of 1972, which authorized federal courts to award the prevailing parties in school desegregation cases a reasonable attorney's fee. The Court of Appeals held that the new fee provision did not authorize the award of fees for services rendered before the effective date of the amendments. This Court reversed. We concluded that the private parties could rely on § 718 to support their claim for attorney's fees, resting our decision "on the principle that a court is to apply the law in effect at the time it renders its decision, unless doing so would result in manifest injustice or there is statutory direction or legislative history to the contrary." 416 U. S., at 711.

    73

    Although that language suggests a categorical presumption in favor of application of all new rules of law, we now make it clear that Bradley did not alter the well-settled presumption against application of the class of new statutes that would have genuinely "retroactive" effect. Like the new hearing requirement in Thorpe, the attorney's fee provision at issue in Bradley did not resemble the cases in which we have invoked the presumption against statutory retroactivity. Attorney's fee determinations, we have observed, are "collateral to the main cause of action" and "uniquely separable from the cause of action to be proved at trial." White v. New Hampshire Dept. of Employment Security, 455 U. S. 445, 451-452 (1982). See also Hutto v. Finney, 437 U. S. 678, 695, n. 24 (1978). Moreover, even before the enactment of § 718, federal courts had authority (which the District Court in Bradley had exercised) to award fees based upon equitable principles. As our opinion in Bradley made clear, it would be difficult to imagine a stronger equitable case for an attorney's fee award than a lawsuit in which the plaintiff parents would otherwise have to bear the costs of desegregating their children's public schools. See 416 U. S., at 718 (noting that the plaintiffs had brought the school board "into compliance with its constitutional mandate") (citing Brown v. Board [278] of Education, 347 U. S. 483, 494 (1954)). In light of the prior availability of a fee award, and the likelihood that fees would be assessed under pre-existing theories, we concluded that the new fee statute simply "d[id] not impose an additional or unforeseeable obligation" upon the school board. Bradley, 416 U. S., at 721.

    74

    In approving application of the new fee provision, Bradley did not take issue with the long line of decisions applying the presumption against retroactivity. Our opinion distinguished, but did not criticize, prior cases that had applied the antiretroactivity canon. See id. , at 720 (citing Greene v. United States, 376 U. S. 149, 160 (1964); Claridge Apartments Co. v. Commissioner, 323 U. S. 141, 164 (1944), and Union Pacific R. Co. v. Laramie Stock Yards Co., 231 U. S. 190, 199 (1913)). The authorities we relied upon in Bradley lend further support to the conclusion that we did not intend to displace the traditional presumption against applying statutes affecting substantive rights, liabilities, or duties to conduct arising before their enactment. See Kaiser, 494 U. S., at 849-850 (Scalia, J., concurring). Bradley relied on Thorpe and on other precedents that are consistent with a presumption against statutory retroactivity, including decisions involving explicitly retroactive statutes, see 416 U. S., at 713, n. 17 (citing, inter alia, Freeborn v. Smith, 2 Wall. 160 (1865)),[32] the retroactive application of intervening judicial decisions, see 416 U. S., at 713-714, n. 17 (citing, inter alia, 17 (1935)),[33] statutes Patterson v. Alabama, 294 U. S. 600, 607 [279] altering jurisdiction, 416 U. S., at 713, n. 17 (citing, inter alia, United States v. Alabama, 362 U. S. 602 (1960)), and repeal of a criminal statute, 416 U. S., at 713, n. 17 (citing United States v. Chambers, 291 U. S. 217 (1934)). Moreover, in none of our decisions that have relied upon Bradley or Thorpe have we cast doubt on the traditional presumption against truly "retrospective" application of a statute.[34]

    75

    [280] When a case implicates a federal statute enacted after the events in suit, the court's first task is to determine whether Congress has expressly prescribed the statute's proper reach. If Congress has done so, of course, there is no need to resort to judicial default rules. When, however, the statute contains no such express command, the court must determine whether the new statute would have retroactive effect, i. e., whether it would impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed. If the statute would operate retroactively, our traditional presumption teaches that it does not govern absent clear congressional intent favoring such a result.

    76
    V
    77

    We now ask whether, given the absence of guiding instructions from Congress, § 102 of the Civil Rights Act of 1991 is the type of provision that should govern cases arising before its enactment. As we observed supra, at 260-261, and n. 12, there is no special reason to think that all the diverse provisions of the Act must be treated uniformly for such purposes. To the contrary, we understand the instruction that the provisions are to "take effect upon enactment" to mean that courts should evaluate each provision of the Act in light of ordinary judicial principles concerning the application of new rules to pending cases and preenactment conduct.

    78

    Two provisions of § 102 may be readily classified according to these principles. The jury trial right set out in § 102(c)(1) is plainly a procedural change of the sort that would ordinarily govern in trials conducted after its effective date. If § 102 did no more than introduce a right to jury trial in Title [281] VII cases, the provision would presumably apply to cases tried after November 21, 1991, regardless of when the underlying conduct occurred.[35] However, because § 102(c) makes a jury trial available only "[i]f a complaining party seeks compensatory or punitive damages," the jury trial option must stand or fall with the attached damages provisions.

    79

    Section 102(b)(1) is clearly on the other side of the line. That subsection authorizes punitive damages if the plaintiff shows that the defendant "engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to the federally protected rights of an aggrieved individual." The very labels given "punitive" or "exemplary" damages, as well as the rationales that support them, demonstrate that they share key characteristics of criminal sanctions. Retroactive imposition of punitive damages would raise a serious constitutional question. See Turner Elkhorn, 428 U. S., at 17 (Court would "hesitate to approve the retrospective imposition of liability on any theory of deterrence . . . or blameworthiness"); De Veau v. Braisted, 363 U. S. 144, 160 (1960) ("The mark of an ex post facto law is the imposition of what can fairly be designated punishment for past acts"). See also Louis Vuitton S. A. v. Spencer Handbags Corp., 765 F. 2d 966, 972 (CA2 1985) (retroactive application of punitive treble damages provisions of Trademark Counterfeiting Act of 1984 "would present a potential ex post facto problem"). Before we entertained that question, we would have to be confronted with a statute that explicitly authorized punitive damages for preenactment conduct. The Civil Rights Act of 1991 contains no such explicit command.

    80

    The provision of § 102(a)(1) authorizing the recovery of compensatory damages is not easily classified. It does not [282] make unlawful conduct that was lawful when it occurred; as we have noted, supra, at 252-255, § 102 only reaches discriminatory conduct already prohibited by Title VII. Concerns about a lack of fair notice are further muted by the fact that such discrimination was in many cases (although not this one) already subject to monetary liability in the form of backpay. Nor could anyone seriously contend that the compensatory damages provisions smack of a "retributive" or other suspect legislative purpose. Section 102 reflects Congress' desire to afford victims of discrimination more complete redress for violations of rules established more than a generation ago in the Civil Rights Act of 1964. At least with respect to its compensatory damages provisions, then, § 102 is not in a category in which objections to retroactive application on grounds of fairness have their greatest force.

    81

    Nonetheless, the new compensatory damages provision would operate "retrospectively" if it were applied to conduct occurring before November 21, 1991. Unlike certain other forms of relief, compensatory damages are quintessentially backward looking. Compensatory damages may be intended less to sanction wrongdoers than to make victims whole, but they do so by a mechanism that affects the liabilities of defendants. They do not "compensate" by distributing funds from the public coffers, but by requiring particular employers to pay for harms they caused. The introduction of a right to compensatory damages is also the type of legal change that would have an impact on private parties' planning.[36] In this case, the event to which the new damages [283] provision relates is the discriminatory conduct of respondents' agent John Williams; if applied here, that provision would attach an important new legal burden to that conduct. The new damages remedy in § 102, we conclude, is the kind of provision that does not apply to events antedating its enactment in the absence of clear congressional intent.

    82

    In cases like this one, in which prior law afforded no relief, § 102 can be seen as creating a new cause of action, and its impact on parties' rights is especially pronounced. Section 102 confers a new right to monetary relief on persons like petitioner who were victims of a hostile work environment but were not constructively discharged, and the novel prospect of damages liability for their employers. Because Title VII previously authorized recovery of backpay in some cases, and because compensatory damages under § 102(a) are in addition to any backpay recoverable, the new provision also resembles a statute increasing the amount of damages available under a preestablished cause of action. Even under that view, however, the provision would, if applied in cases arising before the Act's effective date, undoubtedly impose on employers found liable a "new disability" in respect to past events. See Society for Propagation of the Gospel, 22 F. Cas., at 767. The extent of a party's liability, in the civil context as well as the criminal, is an important legal [284] consequence that cannot be ignored.[37] Neither in Bradley itself, nor in any case before or since in which Congress had not clearly spoken, have we read a statute substantially increasing the monetary liability of a private party to apply to conduct occurring before the statute's enactment. See Winfree v. Northern Pacific R. Co., 227 U. S. 296, 301 (1913) (statute creating new federal cause of action for wrongful death inapplicable to case arising before enactment in absence of "explicit words" or "clear implication"); United States Fidelity & Guaranty Co. v. United States ex rel. Struthers Wells [285] Co. , 209 U. S. 306, 314-315 (1908) (construing statute restricting subcontractors' rights to recover damages from prime contractors as prospective in absence of "clear, strong and imperative" language from Congress favoring retroactivity).[38]

    83

    It will frequently be true, as petitioner and amici forcefully argue here, that retroactive application of a new statute would vindicate its purpose more fully.[39] That consideration, [286] however, is not sufficient to rebut the presumption against retroactivity. Statutes are seldom crafted to pursue a single goal, and compromises necessary to their enactment may require adopting means other than those that would most effectively pursue the main goal. A legislator who supported a prospective statute might reasonably oppose retroactive application of the same statute. Indeed, there is reason to believe that the omission of the 1990 version's express retroactivity provisions was a factor in the passage of the 1991 bill. Section 102 is plainly not the sort of provision that must be understood to operate retroactively because a contrary reading would render it ineffective.

    84

    The presumption against statutory retroactivity is founded upon sound considerations of general policy and practice, and accords with long held and widely shared expectations about the usual operation of legislation. We are satisfied that it applies to § 102. Because we have found no clear evidence of congressional intent that § 102 of the Civil Rights Act of 1991 should apply to cases arising before its enactment, we conclude that the judgment of the Court of Appeals must be affirmed.

    85

    It is so ordered.

    86
    Justice Scalia, with whom Justice Kennedy and Justice Thomas join, concurring in the judgments.[40]
    87
    I
    88

    I of course agree with the Court that there exists a judicial presumption, of great antiquity, that a legislative enactment affecting substantive rights does not apply retroactively absent clear statement to the contrary. See generally Kaiser [287] Aluminum & Chemical Corp. v. Bonjorno, 494 U. S. 827, 840 (1990) (Scalia, J., concurring). The Court, however, is willing to let that clear statement be supplied, not by the text of the law in question, but by individual legislators who participated in the enactment of the law, and even legislators in an earlier Congress which tried and failed to enact a similar law. For the Court not only combs the floor debate and Committee Reports of the statute at issue, the Civil Rights Act of 1991 (1991 Act), Pub. L. 102-166, 105 Stat. 1071, see ante, at 262-263, but also reviews the procedural history of an earlier, unsuccessful, attempt by a different Congress to enact similar legislation, the Civil Rights Act of 1990, S. 2104, 101st Cong., 1st Sess. (1990), see ante, at 255-257, 263.

    89

    This effectively converts the "clear statement" rule into a "discernible legislative intent" rule—and even that understates the difference. The Court's rejection of the floor statements of certain Senators because they are "frankly partisan" and "cannot plausibly be read as reflecting any general agreement," ante, at 262, reads like any other exercise in the soft science of legislative historicizing,[41] undisciplined by any distinctive "clear statement" requirement. If it is a "clear statement" we are seeking, surely it is not enough to insist that the statement can "plausibly be read as reflecting general agreement"; the statement must clearly reflect general agreement. No legislative history can do that, of course, but only the text of the statute itself. That has been the meaning of the "clear statement" retroactivity rule from the earliest times. See, e. g., United States v. Heth, 3 Cranch 399, 408 (1806) (Johnson, J.) ("Unless, therefore, the words are too imperious to admit of a different construction, [the Court should] restric[t] the words of the law to a future [288] operation"); id. , at 414 (Cushing, J.)("[I]t [is] unreasonable, in my opinion, to give the law a construction, which would have such a retrospective effect, unless it contained express words to that purpose"); Murray v. Gibson, 15 How. 421, 423 (1854) (statutes do not operate retroactively unless "required by express command or by necessary and unavoidable implication"); Shwab v. Doyle, 258 U. S. 529, 537 (1922) ("[A] statute should not be given a retrospective operation unless its words make that imperative"); see also Bonjorno, supra, at 842-844 (concurring opinion) (collecting cases applying the clear statement test). I do not deem that clear rule to be changed by the Court's dicta regarding legislative history in the present case.

    90

    The 1991 Act does not expressly state that it operates retroactively, but petitioner contends that its specification of prospective-only application for two sections, §§ 109(c) and 402(b), implies that its other provisions are retroactive. More precisely, petitioner argues that since § 402(a) states that "[e]xcept as otherwise specifically provided, [the 1991 Act] shall take effect upon enactment"; and since §§ 109(c) and 402(b) specifically provide that those sections shall operate only prospectively; the term "shall take effect upon enactment" in § 402(a) must mean retroactive effect. The short response to this refined and subtle argument is that refinement and subtlety are no substitute for clear statement. "[S]hall take effect upon enactment" is presumed to mean "shall have prospective effect upon enactment," and that presumption is too strong to be overcome by any negative inference derived from §§ 109(c) and 402(b).[42]

    91
    [289] II
    92

    The Court's opinion begins with an evaluation of petitioner's argument that the text of the statute dictates its retroactive application. The Court's rejection of that argument cannot be as forceful as it ought, so long as it insists upon compromising the clarity of the ancient and constant assumption that legislation is prospective, by attributing a comparable pedigree to the nouveau Bradley presumption in favor of applying the law in effect at the time of decision. See Bradley v. School Bd. of Richmond, 416 U. S. 696, 711-716 (1974). As I have demonstrated elsewhere and need not repeat here, Bradley and Thorpe v. Housing Authority of Durham, 393 U. S. 268 (1969), simply misread our precedents and invented an utterly new and erroneous rule. See generally Bonjorno, supra, at 840 (Scalia, J., concurring).

    93

    Besides embellishing the pedigree of the Bradley -Thorpe presumption, the Court goes out of its way to reaffirm the holdings of those cases. I see nothing to be gained by overruling them, but neither do I think the indefensible should needlessly be defended. And Thorpe, at least, is really indefensible. The regulation at issue there required that "before instituting an eviction proceeding local housing authorities . . . should inform the tenant . . . of the reasons for the eviction . . . ." Thorpe, supra, at 272, and n. 8 (emphasis added). The Court imposed that requirement on an eviction proceeding instituted 18 months before the regulation is- sued. That application was plainly retroactive and was wrong. The result in Bradley presents a closer question; application of an attorney's fees provision to ongoing litigation is arguably not retroactive. If it were retroactive, however, it would surely not be saved (as the Court suggests) by the existence of another theory under which attorney's fees might have been discretionarily awarded, see ante, at 277-278.

    94
    [290] III
    95

    My last, and most significant, disagreement with the Court's analysis of this case pertains to the meaning of retroactivity. The Court adopts as its own the definition crafted by Justice Story in a case involving a provision of the New Hampshire Constitution that prohibited "retrospective" laws: a law is retroactive only if it "takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past." Society for Propagation of the Gospel v. Wheeler, 22 F. Cas. 756, 767 (No. 13,156) (CC NH 1814) (Story, J.).

    96

    One might expect from this "vested rights" focus that the Court would hold all changes in rules of procedure (as opposed to matters of substance) to apply retroactively. And one would draw the same conclusion from the Court's formulation of the test as being "whether the new provision attaches new legal consequences to events completed before its enactment"—a test borrowed directly from our Ex Post Facto Clause jurisprudence, see, e. g., Miller v. Florida, 482 U. S. 423, 430 (1987), where we have adopted a substantiveprocedural line, see id., at 433 ("[N]o ex post facto violation occurs if the change in the law is merely procedural"). In fact, however, the Court shrinks from faithfully applying the test that it has announced. It first seemingly defends the procedural-substantive distinction that a "vested rights" theory entails, ante, at 275 ("Because rules of procedure regulate secondary rather than primary conduct, the fact that a new procedural rule was instituted after the conduct giving rise to the suit does not make application of the rule at trial retroactive"). But it soon acknowledges a broad and illdefined (indeed, utterly undefined) exception: "[T]he mere fact that a new rule is procedural does not mean that it applies to every pending case." Ante, at 275, n. 29. Under this exception, "a new rule concerning the filing of complaints would not govern an action in which the complaint [291] had already been properly filed," ibid., and "the promulgation of a new jury trial rule would ordinarily not warrant retrial of cases that had previously been tried to a judge," ante, at 281, n. 34. It is hard to see how either of these refusals to allow retroactive application preserves any "vested right." "`No one has a vested right in any given mode of procedure.' " Ex parte Collett, 337 U. S. 55, 71 (1949), quoting Crane v. Hahlo, 258 U. S. 142, 147 (1922).

    97

    The seemingly random exceptions to the Court's "vested rights" (substance-vs. -procedure) criterion must be made, I suggest, because that criterion is fundamentally wrong. It may well be that the upsetting of "vested substantive rights" was the proper touchstone for interpretation of New Hampshire's constitutional prohibition, as it is for interpretation of the United States Constitution's Ex Post Facto Clauses, see ante, at 275, n. 28. But Idoubt that it has anything to do with the more mundane question before us here: absent clear statement to the contrary, what is the presumed temporal application of a statute? For purposes of that question, a procedural change should no more be presumed to be retroactive than a substantive one. The critical issue, I think, is not whether the rule affects "vested rights," or governs substance or procedure, but rather what is the relevant activity that the rule regulates. Absent clear statement otherwise, only such relevant activity which occurs after the effective date of the statute is covered. Most statutes are meant to regulate primary conduct, and hence will not be applied in trials involving conduct that occurred before their effective date. But other statutes have a different purpose and therefore a different relevant retroactivity event. A new rule of evidence governing expert testimony, for example, is aimed at regulating the conduct of trial, and the event relevant to retroactivity of the rule is introduction of the testimony. Even though it is a procedural rule, it would unquestionably not be applied to testimony already taken — reversing a case on appeal, for example, because the new [292] rule had not been applied at a trial which antedated the statute.

    98

    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.

    99

    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 [293] entirely, see Portal-to-Portal Act of 1947, 61 Stat. 84, as amended, 29 U. S. C. §§ 251-262, or may leave him with an alternate forum that will deny relief for some collateral reason (e. g., a statute of limitations bar). Our jurisdiction cases are explained, I think, by the fact that the purpose of provisions conferring or eliminating jurisdiction is to permit or forbid the exercise of judicial power—so that the relevant event for retroactivity purposes is the moment at which that power is sought to be exercised. Thus, applying a jurisdiction-eliminating statute to undo past judicial action would be applying it retroactively; but applying it to prevent any judicial action after the statute takes effect is applying it prospectively.

    100

    Finally, statutes eliminating previously available forms of prospective relief provide another challenge to the Court's approach. Courts traditionally withhold requested injunctions that are not authorized by then-current law, even if they were authorized at the time suit commenced and at the time the primary conduct sought to be enjoined was first engaged in. See, e. g., American Steel Foundries v. TriCity Central Trades Council, 257 U. S. 184 (1921); Duplex Printing Press Co. v. Deering, 254 U. S. 443, 464 (1921). The reason, which has nothing to do with whether it is possible to have a vested right to prospective relief, is that "[o]bviously, this form of relief operates only in futuro, " ibid. Since the purpose of prospective relief is to affect the future rather than remedy the past, the relevant time for judging its retroactivity is the very moment at which it is ordered.[43]

    101

    [294] I do not maintain that it will always be easy to determine, from the statute's purpose, the relevant event for assessing its retroactivity. As I have suggested, for example, a statutory provision for attorney's fees presents a difficult case. Ordinarily, however, the answer is clear—as it is in both Landgraf and Rivers v. Roadway Express, Inc., post, p. 298. Unlike the Court, I do not think that any of the provisions at issue is "not easily classified," ante, at 281. They are all directed at the regulation of primary conduct, and the occurrence of the primary conduct is the relevant event.

    102
    Justice Blackmun, dissenting.
    103

    Perhaps from an eagerness to resolve the "apparent tension," see Kaiser Aluminum & Chemical Corp. v. Bonjorno, 494 U. S. 827, 837 (1990), between Bradley v. School Bd. of Richmond, 416 U. S. 696 (1974), and Bowen v. Georgetown Univ. Hospital, 488 U. S. 204 (1988), the Court rejects the "most logical reading," Kaiser, 494 U. S., at 838, of the Civil Rights Act of 1991, 105 Stat. 1071 (Act), and resorts to a presumption against retroactivity. This approach seems to me to pay insufficient fidelity to the settled principle that the "starting point for interpretation of a statute `is the language of the statute itself,' " Kaiser, 494 U. S., at 835, quoting Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U. S. 102, 108 (1980), and extends the presumption against retroactive legislation beyond its historical reach and purpose.

    104

    A straightforward textual analysis of the Act indicates that § 102's provision of compensatory damages and its attendant right to a jury trial apply to cases pending on appeal on the date of enactment. This analysis begins with § 402(a) of the Act, 105 Stat. 1099: "Except as otherwise specifically provided, this Act and the amendments made by this Act [295] shall take effect upon enactment." Under the "settled rule that a statute must, if possible, be construed in such fashion that every word has operative effect," United States v. Nordic Village, Inc., 503 U. S. 30, 36 (1992), citing United States v. Menasche, 348 U. S. 528, 538-539 (1955), § 402(a)'s qualifying clause, "[e]xcept as otherwise specifically provided," cannot be dismissed as mere surplusage or an "insurance policy" against future judicial interpretation. Cf. Gersman v. Group Health Assn., Inc., 975 F. 2d 886, 890 (CADC 1992). Instead, it most logically refers to the Act's two sections "specifically provid[ing]" that the statute does not apply to cases pending on the date of enactment: (a) § 402(b), 105 Stat. 1099, which provides, in effect, that the Act did not apply to the then-pending case of Wards Cove Packing Co. v. Atonio, 490 U. S. 642 (1989), and (b) § 109(c), 105 Stat. 1078, which states that the Act's protections of overseas employment "shall not apply with respect to conduct occurring before the date of the enactment of this Act." Self-evidently, if the entire Act were inapplicable to pending cases, §§ 402(b) and 109(c) would be "entirely redundant." Kungys v. United States, 485 U. S. 759, 778 (1988) (plurality opinion). Thus, the clear implication is that, while §§ 402(b) and 109(c) do not apply to pending cases, other provisions—including § 102— do.[44] "`Absent a clearly expressed legislative intention to the contrary, [this] language must . . . be regarded as conclusive.' " Kaiser , 494 U. S., at 835, quoting Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U. S., at 108. The legislative history of the Act, featuring a welter of conflicting and "some frankly partisan" floor statements, ante, at 262, but no committee report, evinces no such contrary [296] legislative intent.[45] Thus, I see no reason to dismiss as "unlikely," ante, at 259, the most natural reading of the statute, in order to embrace some other reading that is also "possible," ante, at 260.

    105

    Even if the language of the statute did not answer the retroactivity question, it would be appropriate under our precedents to apply § 102 to pending cases.[46] The wellestablished presumption against retroactive legislation, which serves to protect settled expectations, is grounded in a respect for vested rights. See, e. g., Smead, The Rule Against Retroactive Legislation: A Basic Principle of Jurisprudence, 20 Minn. L. Rev. 775, 784 (1936) (retroactivity [297] doctrine developed as an "inhibition against a construction which . . . would violate vested rights"). This presumption need not be applied to remedial legislation, such as § 102, that does not proscribe any conduct that was previously legal. See Sampeyreac v. United States, 7 Pet. 222, 238 (1833) ("Almost every law, providing a new remedy, affects and operates upon causes of action existing at the time the law is passed"); Hastings v. Earth Satellite Corp., 628 F. 2d 85, 93 (CADC) ("Modification of remedy merely adjusts the extent, or method of enforcement, of liability in instances in which the possibility of liability previously was known"), cert. denied, 449 U. S. 905 (1980); 1 J. Kent, Commentaries on American Law *455—*456 (Chancellor Kent's objection to a law "affecting and changing vested rights" is "not understood to apply to remedial statutes, which may be of a retrospective nature, provided they do not impair contracts, or disturb absolute vested rights").

    106

    At no time within the last generation has an employer had a vested right to engage in or to permit sexual harassment; "`there is no such thing as a vested right to do wrong.' " Freeborn v. Smith, 2 Wall. 160, 175 (1865). See also 2 N. Singer, Sutherland on Statutory Construction § 41.04, p. 349 (4th rev. ed. 1986) (procedural and remedial statutes that do not take away vested rights are presumed to apply to pending actions). Section 102 of the Act expands the remedies available for acts of intentional discrimination, but does not alter the scope of the employee's basic right to be free from discrimination or the employer's corresponding legal duty. There is nothing unjust about holding an employer responsible for injuries caused by conduct that has been illegal for almost 30 years.

    107

    Accordingly, I respectfully dissent.

    108

    [1] Briefs of amici curiae urging reversal were filed for the Asian American Legal Defense and Education Fund et al. by Denny Chin, Doreena Wong, and Angelo N. Ancheta; and for the National Women's Law Center et al. by Judith E. Schaeffer and Ellen J. Vargyas.

    109

    Briefs of amici curiae urging affirmance were filed for the American Trucking Associations et al. by James D. Holzhauer, Andrew L. Frey, Kenneth S. Geller, Javier H. Rubinstein, Daniel R. Barney, and Kenneth P. Kolson; and for Motor Express, Inc., by Alan J. Thiemann.

    110

    Briefs of amici curiae were filed for the Equal Employment Advisory Council et al. by Robert E. Williams, Douglas S. McDowell, and Mona C. Zeiberg; for the National Association for the Advancement of Colored People et al. by Marc L. Fleischaker, David L. Kelleher, Steven S. Zaleznick, Cathy Ventrell-Monsees, Steven M. Freeman, Michael Lieberman, Dennis Courtland Hayes, Willie Abrams, Samuel Rabinove, and Richard Foltin; and for Wards Cove Packing Co. by Douglas M. Fryer, Douglas M. Duncan, and Richard L. Phillips.

    111

    [2] See Rev. Stat. § 1977A(c), 42 U. S. C. § 1981a(c) (1988 ed., Supp. IV), as added by § 102 of the 1991 Act. For simplicity, and in conformity with the practice of the parties, we will refer to the damages and jury trial provisions as §§ 102(a) and (c), respectively.

    112

    [3] Respondent Quantum Chemical Corporation owned the USI plant when petitioner worked there. Respondent Bonar Packaging, Inc., subsequently purchased the operation.

    113

    [4] Section 2(2)finds that the Wards Cove decision "has weakened the scope and effectiveness of Federal civilrights protections,"and § 3(2) expresses Congress' intent "to codify" certain concepts enunciated in "Supreme Court decisions prior to Wards Cove Packing Co. v. Atonio, 490 U. S. 642 (1989)." We take note of the express references to that case because it is the focus of § 402(b),on which petitioner places particular reliance. See infra, at 258-263.

    114

    [5] We have not decided whether a plaintiff seeking backpay under Title VII is entitled to a jury trial. See, e. g., Lytle v. Household Mfg., Inc., 494 U. S. 545, 549, n. 1 (1990) (assuming without deciding no right to jury trial); Teamsters v. Terry, 494 U. S. 558, 572 (1990) (same). Because petitioner does not argue that she had a right to jury trial even under pre-1991 law, again we need not address this question.

    115

    [6] "If the court finds that the respondent has intentionally engaged in . . . an unlawful employment practice charged in the complaint, the court may... order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay .. .or any other equitable reliefas thecourt deems appropriate. Back pay liabilityshall not accrue from a date more than two years prior to the filing of a charge with the Commission. Interim earnings or amounts earnable with reasonable diligence by the person or persons discriminated against shall operate to reduce the back pay otherwise allowable." Civil Rights Act of 1964, § 706(g),as amended, 42 U. S. C. § 2000e—5(g) (1988 ed., Supp. IV).

    116

    [7] Section 102(b)(3) imposes limits, varying with the size of the employer, on the amount of compensatory and punitive damages that may be awarded to an individual plaintiff.Thus, the sum of such damages awarded a plaintiff may not exceed $50,000 for employers with between 14 and 100 employees; $100,000 for employers with between 101 and 200 employees; $200,000 for employers with between 200 and 500 employees; and $300,000 for employers with more than 500 employees.

    117

    [8] See Harris v. Forklift Systems, Inc., 510 U. S. 17, 21 (1993) (discrimination in "terms, conditions, or privileges of employment" actionable under Title VII "is not limited to `economic' or `tangible' discrimination") (citations and internal quotation marks omitted).

    118

    [9] The relevant section of the Civil Rights Act of 1990, S. 2104, 101st Cong., 1st Sess. (1990), provided: ìSec. 15. Application of Amendments and Transition Rules.

    119

    "(a) Application of Amendments.—The amendments made by—

    "(1) section 4 shall apply to all proceedings pending on or commenced after June 5, 1989 [the date of Wards Cove Packing Co. v. Atonio, 490 U. S. 642];

    "(2) section 5 shall apply to all proceedings pending on or commenced after May 1, 1989 [the date of Price Waterhouse v. Hopkins, 490 U. S. 228];

    "(3) section 6 shall apply to all proceedings pending on or commenced after June 12, 1989 [the date of Martin v. Wilks, 490 U. S. 755];

    "(4) sections 7(a)(1), 7(a)(3) and 7(a)(4), 7(b), 8 [providing for compensatory and punitive damages for intentional discrimination], 9, 10, and 11 shall apply to all proceedings pending on or commenced after the date of enactment of this Act;

    "(5) section 7(a)(2) shall apply to all proceedings pending on or after June 12, 1989 [the date of Lorance v. AT&T; Technologies, Inc., 490 U. S. 900]; and

    "(6) section 12 shall apply to all proceedings pending on or commenced after June 15, 1989 [the date of Patterson v. McLean Credit Union, 491 U. S. 164].

    "(b) Transition Rules.ó

    "(1) In General.—Any orders entered by a court between the effective dates described in subsection (a) and the date of enactment of this Act that are inconsistent with the amendments made by sections 4, 5, 7(a)(2), or 12, shall be vacated if, not later than 1 year after such date of enactment, a request for such relief is made.

    . . . . .

    "(3) Final Judgments.—Pursuant to paragraphs (1) and (2), any final judgment entered prior to the date of the enactment of this Act as to which the rights of any of the parties thereto have become fixed and vested, where the time for seeking further judicial review of such judgment has otherwise expired pursuant to title 28 of the United States Code, the Federal Rules of Civil Procedure, and the Federal Rules of Appellate Procedure, shall be vacated in whole or in part if justice requires pursuant to rule 60(b)(6) of the Federal Rules of Civil Procedure or other appropriate authority, and consistent with the constitutional requirements of due process of law."

    120

    [10] See President's Message to the Senate Returning Without Approval the Civil Rights Act of 1990, 26 Weekly Comp. Pres. Doc. 1632-1634 (Oct. 22, 1990), reprinted in 136 Cong. Rec. S16418, S16419 (Oct. 22, 1990). The President's veto message referred to the bill's "retroactivity" only briefly; the Attorney General's Memorandum to which the President referred was no more expansive, and may be read to refer only to the bill's special provision for reopening final judgments, see n. 8, supra, rather than its provisions covering pending cases. See Memorandum of the Attorney General to the President (Oct. 22, 1990) in App. to Brief for Petitioner A-13 ("And Section 15 unfairly applies the changes in the law made by S. 2104 to cases already decided ") (emphasis added).

    121

    [11] The history of prior amendments to Title VII suggests that the "effective-upon-enactment" formula would have been an especially inapt way to reach pending cases. When it amended Title VII in the Equal Employment Opportunity Act of 1972, Congress explicitly provided:

    122

    "The amendments made by this Act to section 706 of the Civil Rights Act of 1964 shall be applicable with respect to charges pending with the Commission on the date of enactment of this Act and all charges filed thereafter." Pub. L. 92-261, § 14, 86 Stat. 113.

    123

    In contrast, in amending Title VII to bar discrimination on the basis of pregnancy in 1978, Congress provided:

    124

    "Except as provided in subsection (b), the amendment made by this Act shall be effective on the date of enactment." § 2(a), 92 Stat. 2076. The only Courts of Appeals to consider whether the 1978 amendments applied to pending cases concluded that they did not. See Schwabenbauer v. Board of Ed. of School Dist. of Olean, 667 F. 2d 305, 310, n. 7 (CA2 1981); Condit v. United Air Lines, Inc., 631 F. 2d 1136, 1139-1140 (CA4 1980). See also Jensen v. Gulf Oil Refining & Marketing Co., 623 F. 2d 406, 410 (CA5 1980) (Age Discrimination in Employment Act amendments designated to "take effect on the date of enactment of this Act" inapplicable to case arising before enactment); Sikora v. American Can Co., 622 F. 2d 1116, 1119-1124 (CA3 1980) (same).

    125

    If we assume that Congress was familiar with those decisions, cf.Cannon v.University of Chicago, 441 U. S. 677, 698-699 (1979),its choice of language in § 402(a) would imply nonretroactivity.

    126

    [12] There is some evidence that the drafters of the 1991 Act did not devote particular attention to the interplay of the Act's "effective date" provisions. Section 110, which directs the EEOC to establish a "Technical Assistance Training Institute" to assist employers in complying with antidiscrimination laws and regulations, contains a subsection providing that it "shall take effect on the date of the enactment of this Act." § 110(b). That provision and § 402(a) are unavoidably redundant.

    127

    [13] This point also diminishes the force of petitioner's "expressio unius " argument. Once one abandons the unsupported assumption that Congress expected that all of the Act's provisions would be treated alike, and takes account of uncertainty about the applicable default rule,§§ 109(c) and 402(b) do not carry the negative implication petitioner draws from them. We do not read either provision as doing anything more than definitively rejecting retroactivity with respect to the specific matters covered by its plain language.

    128

    [14] See, e. g., H. R. 1, 102d Cong., 1st Sess. § 113 (1991), reprinted in 137 Cong. Rec. H3924—H3925 (Jan. 3, 1991). The prospectivity proviso to the section extending Title VII to overseas employers was first added to legislation that generally was to apply to pending cases. See H. R. 1, 102d Cong., 1st Sess. § 119(c) (1991), reprinted in 137 Cong. Rec. H3925—H3926 (June 5, 1991). Thus, at the time its language was introduced, the provision that became § 109(c) was surely not redundant.

    129

    [15] On the other hand, two proposals that would have provided explicitly for prospectivity also foundered. See 137 Cong. Rec. S3021, S3023 (Mar. 12, 1991); id., at 13255, 13265-13266.

    130

    [16] For example, in an "interpretive memorandum" introduced on behalf of seven Republican sponsors of S. 1745, the bill that became the 1991 Act, Senator Danforth stated that "[t]he bill provides that, unless otherwise specified, the provisions of this legislation shall take effect upon enactment and shall not apply retroactively. " Id., at 29047 (emphasis added). Senator Kennedy responded that it "will be up to the courts to determine the extent to which the bill will apply to cases and claims that were pending on the date of enactment." Ibid. (citing Bradley v. School Bd. of Richmond, 416 U. S. 696 (1974)). The legislative history reveals other partisan statements on the proper meaning of the Act's "effective date" provisions. Senator Danforth observed that such statements carry little weight as legislative history. As he put it:

    131

    "[A] court would be well advised to take with a large grain of salt floor debate and statements placed in the Congressional Record which purport to create an interpretation for the legislation that is before us." 137 Cong. Rec. S15325 (Oct. 29, 1991).

    132

    [17] See Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons about How Statutes are to be Construed, 3 Vand. L. Rev. 395 (1950). Llewellyn's article identified the apparent conflict between the canon that

    133

    "[a] statute imposing a new penalty or forfeiture, or a new liability or disability, or creating a new right of action will not be construed as having a retroactive effect" and the countervailing rule that

    "[r]emedial statutes are to be liberally construed and if a retroactive interpretation will promote the ends of justice, they should receive such construction." Id. , at 402 (citations omitted).

    134

    [18] See Kaiser Aluminum & Chemical Corp. v. Bonjorno, 494 U. S. 827, 842-844, 855-856 (1990) (Scalia, J., concurring). See also, e. g., Dash v. Van Kleeck, 7 Johns. *477, *503 (N. Y. 1811) ("It is a principle of the English common law, as ancient as the law itself, that a statute, even of its omnipotent parliament, is not to have a retrospective effect") (Kent, C. J.); Smead, The Rule Against Retroactive Legislation: A Basic Principle of Jurisprudence, 20 Minn. L. Rev. 775 (1936).

    135

    [19] See General Motors Corp. v. Romein, 503 U. S. 181, 191 (1992) ("Retroactive legislation presents problems of unfairness that are more serious than those posed by prospective legislation, because it can deprive citizens of legitimate expectations and upset settled transactions"); Munzer, A Theory of Retroactive Legislation, 61 Texas L. Rev. 425, 471 (1982) ("The rule of law . . . is a defeasible entitlement of persons to have their behavior governed by rules publicly fixed in advance"). See also L. Fuller, The Morality of Law 51-62 (1964) (hereinafter Fuller).

    136

    [20] ArticleI contains two Ex Post Facto Clauses, one directed to Congress (§ 9,cl.3), the other to the States (§ 10, cl. 1).We have construed the Clauses as applicable only to penal legislation. See Calder v. Bull, 3 Dall. 386, 390-391 (1798) (opinion of Chase, J.).

    137

    [21] See Richmond v. J. A. Croson Co. , 488 U. S. 469, 513-514 (1989) ("Legislatures are primarily policymaking bodies that promulgate rules to govern future conduct. The constitutional prohibitions against the enactment of ex post facto laws and bills of attainder reflect a valid concern about the use of the political process to punish or characterize past conduct of private citizens. It is the judicial system, rather than the legislative process, that is best equipped to identify past wrongdoers and to fashion remedies that will create the conditions that presumably would have existed had no wrong been committed") (Stevens, J., concurring in part and concurring in judgment); James v. United States, 366 U. S. 213, 247, n. 3 (1961) (retroactive punitive measures may reflect "a purpose not to prevent dangerous conduct generally but to impose by legislation a penalty against specific persons or classes of persons").

    138

    James Madison argued that retroactive legislation also offered special opportunities for the powerful to obtain special and improper legislative benefits. According to Madison, "[b]ills of attainder, ex post facto laws, and laws impairing the obligation of contracts" were "contrary to the first principles of the social compact, and to every principle of sound legislation," in part because such measures invited the "influential" to "speculat[e] on public measures," to the detriment of the "more industrious and less informed part of the community." The Federalist No. 44, p. 301 (J. Cooke ed. 1961). See Hochman, The Supreme Court and the Constitutionality of Retroactive Legislation, 73 Harv. L. Rev. 692, 693 (1960) (a retroactive statute "may be passed with an exact knowledge of who will benefit from it").

    139

    [22] In some cases, however, the interest in avoiding the adjudication of constitutional questions will counsel against a retroactive application. For if a challenged statute is to be given retroactive effect, the regulatory interest that supports prospective application will not necessarily also sustain its application to past events. See Pension Benefit Guaranty Corporation v. R. A. Gray & Co., 467 U. S. 717, 730 (1984); Usery v. Turner Elkhorn Mining Co., 428 U. S. 1, 17 (1976). In this case the punitive damages provision may raise a question, but for present purposes we assume that Congress has ample power to provide for retroactive application of § 102.

    140

    [23] Article 23 of the New Hampshire Bill of Rights provides: "Retrospective laws are highly injurious, oppressive and unjust. No such laws, therefore, should be made, either for the decision of civil causes or the punishment of offenses." At issue in the Society case was a new statute that reversed a common-law rule by allowing certain wrongful possessors of land, upon being ejected by the rightful owner, to obtain compensation for improvements made on the land. Justice Story held that the new statute impaired the owner's rights and thus could not, consistently with Article 23, be applied to require compensation for improvements made before the statute's enactment. See 22 F. Cas., at 766-769.

    141

    [24] See, e. g., Miller v. Florida, 482 U. S. 423, 430 (1987) ("A law is retrospective if it `changes the legal consequences of acts completed before its effective date' ") (quoting Weaver v. Graham, 450 U. S. 24, 31 (1981)); Union Pacific R. Co. v. Laramie Stock Yards Co., 231 U. S. 190, 199 (1913) (retroactive statute gives "a quality or effect to acts or conduct which they did not have or did not contemplate when they were performed"); Sturges v. Carter, 114 U. S. 511, 519 (1885) (a retroactive statute is one that "takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability"). See also Black's Law Dictionary 1184 (5th ed. 1979) (quoting Justice Story's definition from Society ); 2 N. Singer, Sutherland on Statutory Construction § 41.01, p. 337 (5th rev. ed. 1993) ("The terms `retroactive' and `retrospective' are synonymous in judicial usage . . . . They describe acts which operate on transactions which have occurred or rights and obligations which existed before passage of the act").

    142

    [25] Even uncontroversially prospective statutes may unsettle expectations and impose burdens on past conduct: a new property tax or zoning regulation may upset the reasonable expectations that prompted those affected to acquire property; a new law banning gambling harms the person who had begun to construct a casino before the law's enactment or spent his life learning to count cards. See Fuller 60 ("If every time a man relied on existing law in arranging his affairs, he were made secure against any change in legal rules, the whole body of our law would be ossified forever"). Moreover, a statute "is not made retroactive merely because it draws upon antecedent facts for its operation." Cox v.Hart, 260 U. S. 427, 435 (1922). See Reynolds v. United States, 292 U. S. 443, 444-449 (1934); Chicago & Alton R. Co. v. Tranbarger, 238 U. S. 67, 73 (1915).

    143

    [26] See, e. g., United States v. Security Industrial Bank, 459 U. S. 70, 79-82 (1982); Claridge Apartments Co. v. Commissioner, 323 U. S. 141, 164 (1944); United States v. St. Louis, S. F. & T. R. Co., 270 U. S. 1, 3 (1926); Holt v. Henley, 232 U. S. 637,639 (1914); Union Pacific R. Co. v. Laramie Stock Yards Co., 231 U. S.,at 199; Twenty per Cent. Cases, 20 Wall. 179, 187 (1874); Sohn v. Waterson, 17 Wall. 596, 599 (1873); Carroll v. Lessee of Carroll, 16 How. 275 (1854). While the great majority of our decisions relying upon the antiretroactivity presumption have involved intervening statutes burdening private parties, we have applied the presumption in cases involving new monetary obligations that fell only on the government. See United States v. Magnolia Petroleum Co., 276 U. S. 160 (1928); White v. United States, 191 U. S. 545 (1903).

    144

    [27] See also, e. g., Greene v. United States , 376 U. S. 149, 160 (1964); White v. United States, 191 U. S. 545 (1903); United States v. Moore, 95 U. S. 760, 762 (1878); Murray v. Gibson, 15 How. 421, 423 (1854); Ladiga v. Roland, 2 How. 581, 589 (1844).

    145

    [28] In Bruner, we specifically noted:

    146

    "This jurisdictional rule does not affect the general principle that a statute is not to be given retroactive effect unless such construction is required by explicit language or by necessary implication. Compare United States v. St. Louis, S. F. & T. R. Co., 270 U. S. 1, 3 (1926), with Smallwood v. Gallardo, 275 U. S. 56, 61 (1927)." 343 U. S., at 117, n. 8.

    147

    [29] While we have strictly construed the Ex Post Facto Clause to prohibit application of new statutes creating or increasing punishments after the fact, we have upheld intervening procedural changes even if application of the new rule operated to a defendant's disadvantage in the particular case. See, e. g., Dobbert v. Florida, 432 U. S. 282, 293-294 (1977); see also Collins v. Youngblood, 497 U. S. 37 (1990); Beazell v. Ohio, 269 U. S. 167 (1925).

    148

    [30] Of course, the mere fact that a new rule is procedural does not mean that it applies to every pending case. A new rule concerning the filing of complaints would not govern an action in which the complaint had already been properly filed under the old regime, and the promulgation of a new rule of evidence would not require an appellate remand for a new trial. Our orders approving amendments to federal procedural rules reflect the commonsense notion that the applicability of such provisions ordinarily depends on the posture of the particular case. See, e. g., Order Amending Federal Rules of Criminal Procedure, 495 U. S. 969 (1990) (amendments applicable to pending cases "insofar as just and practicable"); Order Amending Federal Rules of Civil Procedure, 456 U. S. 1015 (1982) (same); Order Amending Bankruptcy Rules and Forms, 421 U. S. 1021 (1975) (amendments applicable to pending cases "except to the extent that in the opinion of the court their application in a particular proceeding then pending would not be feasible or would work injustice"). Contrary to Justice Scalia's suggestion, post, at 290, we do not restrict the presumption against statutory retroactivity to cases involving "vested rights." (Neither is Justice Story's definition of retroactivity, quoted supra, at 269, so restricted.) Nor do we suggest that concerns about retroactivity have no application to procedural rules.

    149

    [31] Thorpe is consistent with the principle, analogous to that at work in the common-law presumption about repeals of criminal statutes, that the government should accord grace to private parties disadvantaged by an old rule when it adopts a new and more generous one. Cf. DeGurules v. INS, 833 F. 2d 861, 862-863 (CA9 1987). Indeed, Thorpe twice cited United States v. Chambers, 291 U. S. 217 (1934), which ordered dismissal of prosecutions pending when the National Prohibition Act was repealed. See Thorpe, 393 U. S., at 281, n. 38; id., at 282, n.40.

    150

    [32] In Bradley, we cited Schooner Peggy for the "current law" principle, but we recognized that the law at issue in Schooner Peggy had expressly called for retroactive application. See 416 U. S., at 712, n. 16 (describing Schooner Peggy as holding that Court was obligated to "apply the terms of the convention," which had recited that it applied to all vessels not yet "definitively condemned") (emphasis in convention).

    151

    [33] At the time Bradley was decided, it was by no means a truism to point out that rules announced in intervening judicial decisions should normally be applied to a case pending when the intervening decision came down. In 1974, our doctrine on judicial retroactivity involved a substantial measure of discretion, guided by equitable standards resembling the Bradley "manifest injustice" test itself. See Chevron Oil Co. v. Huson, 404 U. S. 97, 106-107 (1971); Linkletter v. Walker, 381 U. S. 618, 636 (1965). While it was accurate in 1974 to say that a new rule announced in a judicial decision was only presumptively applicable to pending cases, we have since established a firm rule of retroactivity. See Harper v. Virginia Dept. of Taxation, 509 U. S. 86 (1993); Griffith v. Kentucky, 479 U. S. 314 (1987).

    152

    [34] See, e. g., Treasury Employees v. Von Raab, 489 U. S. 656, 661-662, and n. 1 (1989) (considering intervening regulations in injunctive action challenging agency's drug testing policy under Fourth Amendment) (citing Thorpe ); Goodman v. Lukens Steel Co., 482 U. S. 656, 662 (1987) (applying rule announced in judicial decision to case arising before the decision and citing Bradley for the "usual rule . . . that federal cases should be decided in accordance with the law existing at the time of the decision"); Saint Francis College v. Al-Khazraji, 481 U. S. 604, 608 (1987) (in case involving retroactivity of judicial decision, citing Thorpe for same "usual rule"); Hutto v. Finney, 437 U. S., at 694, n. 23 (relying on "general practice" and Bradley to uphold award of attorney's fees under statute passed after the services had been rendered but while case was still pending); Youakim, 425 U. S., at 237 (per curiam) (remanding for reconsideration of constitutional claim for injunctive relief in light of intervening state regulations) (citing Thorpe ); Cort v. Ash, 422 U. S. 66, 77 (1975) (stating that Bradley warranted application of intervening statute transferring to administrative agency jurisdiction over claim for injunctive relief); Hamling v. United States, 418 U. S. 87, 101-102 (1974) (reviewing obscenity conviction in light of subsequent First Amendment decision of this Court) (citing Bradley ); California Bankers Assn. v. Shultz, 416 U. S. 21, 49, n. 21 (1974) (in action for injunction against enforcement of banking disclosure statute, citing Thorpe for proposition that Court should consider constitutional question in light of regulations issued after commencement of suit); Diffenderfer v. Central Baptist Church of Miami, Inc., 404 U. S. 412, 414 (1972) (citing Thorpe in holding that intervening repeal of a state tax exemption for certain church property rendered "inappropriate" petitioner's request for injunctive relief based on the Establishment Clause); Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U. S. 402, 419 (1971) (refusing to remand to agency under Thorpe for administrative findings required by new regulation because administrative record was already adequate for judicial review); Hall v. Beals, 396 U. S. 45, 48 (1969) (in action for injunctive relief from state election statute, citing Thorpe as authority for considering intervening amendment of statute).

    153

    [35] As the Court of Appeals recognized, however, the promulgation of a new jury trial rule would ordinarily not warrant retrial of cases that had previously been tried to a judge. See n. 29, supra. Thus, customary practice would not support remand for a jury trial in this case.

    154

    [36] As petitioner and amici suggest, concerns of unfair surprise and upsetting expectations are attenuated in the case of intentional employment discrimination, which has been unlawful for more than a generation. However, fairness concerns would not be entirely absent if the damages provisions of § 102 were to apply to events preceding its enactment, as the facts of this case illustrate. Respondent USI's management, when apprised of the wrongful conduct of petitioner's co-worker, took timely action to remedy the problem. The law then in effect imposed no liability on an employer who corrected discriminatory work conditions before the conditions became so severe as to result in the victim's constructive discharge. Assessing damages against respondents on a theory of respondeat superior would thus entail an element of surprise. Even when the conduct in question is morally reprehensible or illegal, a degree of unfairness is inherent whenever the law imposes additional burdens based on conduct that occurred in the past. Cf. Weaver, 450 U. S., at 28-30 (Ex Post Facto Clause assures fair notice and governmental restraint, and does not turn on "an individual's right to less punishment"). The new damages provisions of § 102 can be expected to give managers an added incentive to take preventive measures to ward off discriminatory conduct by subordinates before itoccurs, but that purpose is not served by applying the regime to preenactment conduct.

    155

    [37] The state courts have consistently held that statutes changing or abolishing limits on the amount of damages available in wrongful-death actions should not, in the absence of clear legislative intent, apply to actions arising before their enactment. See, e. g., Dempsey v. State, 451 A. 2d 273 (R. I. 1982) ("Every court which has considered the issue . . . has found that a subsequent change as to the amount or the elements of damage in the wrongful-death statute to be substantive rather than procedural or remedial, and thus any such change must be applied prospectively"); Kleibrink v. Missouri-Kansas-Texas R. Co., 224 Kan. 437, 444, 581 P. 2d 372, 378 (1978) (holding, in accord with the "great weight of authority," that "an increase, decrease or repeal of the statutory maximum recoverable in wrongful death actions is not retroactive" and thus should not apply in a case arising before the statute's enactment) (emphasis in original); Bradley v. Knutson, 62 Wis. 2d 432, 436, 215 N. W. 2d 369, 371 (1974) (refusing to apply increase in cap on damages for wrongful death to misconduct occurring before effective date; "statutory increases in damage[s] limitations are actually changes in substantive rights and not mere remedial changes"); State ex rel. St. Louis-San Francisco R. Co. v. Buder, 515 S. W. 2d 409, 411 (Mo. 1974) (statute removing wrongful-death liability limitation construed not to apply to preenactment conduct; "an act or transaction, to which certain legal effects were ascribed at the time they transpired, should not, without cogent reasons, thereafter be subject to a different set of effects which alter the rights and liabilities of the parties thereto"); Mihoy v. Proulx, 113 N. H. 698, 701, 313 A. 2d 723, 725 (1973) ("To apply the increased limit after the date of the accident would clearly enlarge the defendant's liability retrospectively. In the absence of an express provision, we cannot conclude that the legislature intended retrospective application"). See also Fann v. McGuffy, 534 S. W. 2d 770, 774, n. 19 (Ky. 1975); Muckler v. Buchl, 150 N. W. 2d 689, 697 (Minn. 1967).

    156

    [38] We have sometimes said that new "remedial" statutes, like new "procedural" ones, should presumptively apply to pending cases. See, e. g., Ex parte Collett, 337 U. S., at 71, and n. 38 ("Clearly, § 1404(a) is a remedial provision applicable to pending actions"); Beazell, 269 U. S., at 171 (Ex Post Facto Clause does not limit "legislative control of remedies and modes of procedure which do not affect matters of substance"). While that statement holds true for some kinds of remedies, see supra, at 273— 274 (discussing prospective relief), we have not classified a statute introducing damages liability as the sort of "remedial" change that should presumptively apply in pending cases. "Retroactive modification" of damages remedies may "normally harbo[r] much less potential for mischief than retroactive changes in the principles of liability," Hastings v. Earth Satellite Corp., 628 F. 2d 85, 93 (CADC), cert. denied, 449 U. S. 905 (1980), but that potential is nevertheless still significant.

    157

    [39] Petitioner argues that our decision in Franklin v. Gwinnett County Public Schools, 503 U. S. 60 (1992), supports application of § 102 to her case. Relying on the principle that "where legal rights have been invaded, and a federal statute provides for a general right to sue for such invasion, federal courts may use any available remedy to make good the wrong,' " id., at 66 (quoting Bell v. Hood, 327 U. S. 678, 684 (1946)), we held in Franklin that the right of action under Title IX of the Education Amendments of 1972 included a claim for damages. Petitioner argues that Franklin supports her position because, if she cannot obtain damages pursuant to § 102, she will be left remediless despite an adjudged violation of her right under Title VII to be free of workplace discrimination. However, Title VII of the Civil Rights Act of 1964 is not a statute to which we would apply the "traditional presumption in favor of all available remedies." 503 U. S., at 72. That statute did not create a "general right to sue" for employment discrimination, but instead specified a set of "circumscribed remedies." See United States v. Burke, 504 U. S. 229, 240 (1992). Until the 1991 amendment, the Title VII scheme did not allow for damages. We are not free to fashion remedies that Congress has specifically chosen not to extend. See Northwest Airlines, Inc. v. Transport Workers, 451 U. S. 77, 97 (1981).

    158

    [40] [This opinion applies also to Rivers v. Roadway Express, Inc., No. 92— 938, post, p. 298.]

    159

    [41] In one respect, I must acknowledge, the Court's effort may be unique. There is novelty as well as irony in its supporting the judgment that the floor statements on the 1991 Act are unreliable by citing Senator Danforth's floor statement on the 1991 Act to the effect that floor statements on the 1991 Act are unreliable. See ante, at 262-263, n. 15.

    160

    [42] Petitioner suggests that in Pennsylvania v. Union Gas Co., 491 U. S. 1 (1989), the Court found the negative implication of language sufficient to satisfy the "clear statement" requirement for congressional subjection of the States to private suit, see Atascadero State Hospital v. Scanlon, 473 U. S. 234, 242 (1985). However, in that case it was the express inclusion of States in the definition of potentially liable "person[s]," see 42 U. S. C. § 9601(21),as reinforced by the limitation of States' liability in certain limited circumstances, see § 9601(20)(D), that led the Court to find a plain statement of liability.See 491 U. S., at 11 (noting the "cascade of plain language" supporting liability); id., at 30 (Scalia, J., concurring in part and dissenting in part). There is nothing comparable here.

    161

    [43] A focus on the relevant retroactivity event also explains why the presumption against retroactivity is not violated by interpreting a statute to alter the future legal effect of past transactions—so-called secondary retroactivity, see Bowen v. Georgetown Univ. Hospital, 488 U. S. 204, 219— 220 (1988) (Scalia, J., concurring) (citing McNulty, Corporations and the Intertemporal Conflict of Laws, 55 Calif. L. Rev. 12, 58-60 (1967)); cf. Cox v. Hart, 260 U. S. 427, 435 (1922). A new ban on gambling applies to existing casinos and casinos under construction, see ante, at 269-270, n. 24, even though it "attaches a new disability" to those past investments. The relevant retroactivity event is the primary activity of gambling, not the primary activity of constructing casinos.

    162

    [44] It is, of course, an "unexceptional" proposition that "a particular statute may in some circumstances implicitly authorize retroactive [application]." Bowen v. Georgetown Univ. Hospital, 488 U. S. 204, 223 (1988) (concurring opinion) (emphasis added).

    163

    [45] Virtually every Court of Appeals to consider the application of the 1991 Act to pending cases has concluded that the legislative history provides no reliable guidance. See, e. g., Gersman v. Group Health Assn., Inc., 975 F. 2d 886 (CADC 1992); Mozee v. American Commercial Marine Service Co., 963 F. 2d 929 (CA7 1992).

    164

    The absence in the Act of the strong retroactivity language of the vetoed 1990 legislation, which would have applied the new law to final judgments as well as to pending cases, see H. R. 4000, 101st Cong., 2d Sess., § 15(b)(3) (1990), reprinted at 136 Cong. Rec. H6829 (Aug. 3, 1990) (providing that "any final judgment entered prior to the date of the enactment of this Act as to which the rights of any of the parties thereto have become fixed and vested . . . shall be vacated in whole or in part if justice requires" and the Constitution permits), is not instructive of Congress' intent with respect to pending cases alone. Significantly, Congress also rejected language that put pending claims beyond the reach of the 1990 or 1991 Act. See id., at H6747 (Michel-LaFalce amendment to 1990 Act) ("The amendments made by this Act shall not apply with respect to claims arising before the date of enactment of this Act"); id., at H6768 (Michel-LaFalce amendment rejected); 137 Cong. Rec. S3023 (daily ed. Mar. 12, 1991) (Sen. Dole's introduction of S. 611, which included the 1990 Act's retroactivity provision); id., at 13255, 13265-13266 (introduction and defeat of Michel substitute for H. R. 1).

    165

    [46] Directly at issue in this case are compensatory damages and the right to a jury trial. While there is little unfairness in requiring an employer to compensate the victims of intentional acts of discrimination, or to have a jury determine those damages, the imposition of punitive damages for preenactment conduct represents a more difficult question, one not squarely addressed in this case and one on which I express no opinion.

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