Harvard Journal of Law & Public Policy,
The idea of vested private rights is divisive; it divides those who practice law from those who teach and think about law. On one side of the divide, practicing lawyers act as though (at least some) rights exist and exert binding obligations upon private persons and government officials, such that once vested, the rights cannot be taken away or retrospectively altered. Lawyers convey estates in property, negotiate contracts, and write and send demand letters on the supposition that they are specifying and vindicating rights, which are rights not as a result of a judgment by a court in a subsequent dispute but rather because they direct judicial deliberations and determine judgments. Lawyers also negotiate compensation from local governments for expropriations and regulatory takings, demand due process protections for their clients, apply to courts for injunctive relief, and seek enforcement of laws and judgments across state lines. They do this on the presumption that officials are obligated to act or refrain from acting in certain ways because of the existence of rights enjoyed by persons in their unofficial capacities.
On the other side of the divide, scholars of law and jurisprudence generally proceed as if the concepts of vested right and nonretrospectivity have little real meaning. The English positivist and American legal realist movements are thought to have discredited the doctrine of vested private rights. On the currently prevailing account, lawyers who practice private law are generating expectations which might or might not be realized, depending upon how courts interpret or construct the law and whether the legislative sovereign acts to change the law.
The sustained skepticism of the concept of vested private rights in the theoretical inquiries of scholars, coupled with sustained interest in the reality of vested private rights in the practical deliberations of lawyers, has left the doctrine in a state of limbo-neither fully discredited nor fully coherent. Neil Duxbury, a noted theorist, has observed that the concept of vested rights "is not easily shaken off." Yet Charles Siemon, an accomplished practitioner, has found it difficult to find order amidst the "confusion in the law."
This Article attempts to explain the continuing appeal of the vested private rights doctrine and to discern some coherence in it while also accounting for the causes of skepticism. The Article proceeds by way of comparing theoretical accounts of the doctrine in English positivist and American legal realist scholarship with instances of the doctrine in legal practice. Disagreement between theory and practice can be narrowed by critical engagement with both. In fact, a surprising area of agreement emerges when one distinguishes what the positivist and realist theorists claimed and did not claim, and what the doctrine does and does not (always) do.
Adam J. MacLeod, Of Brutal Murder and Transcendental Sovereignty: The Meaning of Vested Private Rights, 41 Harv. J. L. & Pub. Pol'y 253 (2018).