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There is a local (but nationally recognized) law firm that has this commercial. The "meat" of the commercial is this:

A biker is injured and the law firm goes after the insurance company. Company says it won't pay because of a law that is "on its side". Law firm goes to Madison (WI) and gets the law changed. Law firm recovers $2 million for client.

Now I was under the impression that you cannot hold somebody liable for events that transpired prior to a law being changed/created (ex post facto). Are there cases as above where an entity (person/business) can be held liable for actions prior to them being enacted in law?

For example if my township passed a statute that says "cutting your grass is a civil offense punishable by up to $X", and then sends me a fine for every year I've lived in the house, I don't think that would be enforceable.

I know that there are ex post facto laws in the US that are held such as the "Adam Walsh Child Protection and Safety Act" or the "Domestic Violence Offender Gun Ban" that were retroactive (mostly because they do not impose a punishment). I know that States are prohibited from passing ex post facto laws by Article 1: Section 10, Clause 1, but I'm specifically asking about the legitimacy of the law offices claim and how it could possibly be true.

I do not know what law the law firm got changed, they don't mention it even though they state pretty prominently that they were thanked for doing so publicly.

  • Recall that "the law" also includes the interpretation of statutes, as discovered by courts. That's what the law means and always has meant, we just haven't previously been specifically asked about this bit of text. You could call that "changing the law" – law firms generally do not lobby legislatures to pass new statutes. – user6726 May 9 at 19:03
  • @user6726 I agree that interpretation of law is what the law is, and those interpretations change with time. The law office in question implies that they changed the law by presenting it to the State Legislature, which is located in Madison. If they were just arguing the interpretation of the law they could do that in the district court that the case was filed, or would be brought before the state supreme court. I suppose it is possible they consider an "interpretation" a change of the law, but why would they be publicly thanked for that? The judge would be... – Ron Beyer May 9 at 19:10
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The exact law that the law firm had "changed" was really a Wisconson Supreme Court decision it did not agree with, and the lawyers found a state senator who sponsored a bill to change the helmet laws in Wisconsin and their description is available on their website. https://www.hupy.com/news/helmet-bill-signed-by-governor-damages-cannot-be-reduced-20090827.cfm

It sounds like the injured rider scenario is talking about the case that made the lawyer want to change the law. The actual law is not being applied ex post facto, it seems. https://www.hupy.com/case_results/motorcyclist-receives-50000000-policy-limit.cfm

  • I'm not sure this answers my question. In the question I link Article 1/Section10/Clause 1. I also know that ex post facto laws can be passed if they are not deemed "punishment" but it would seem that the case I'm stating has a punishment because the insurance company was held liable for a significant sum after the law was changed. Can you cite something that says monetary fines are not "punishment" under that interpretation? – Ron Beyer May 9 at 19:00
  • @RonBeyer I added a link to the law firm's site explaining the law they supported. – Putvi May 9 at 19:08
  • Thanks for finding that, but I'm still at odds seeing how the new pro-rider helmet law could be applied ex-post-facto to an injury sustained prior to the enactment of the law. – Ron Beyer May 9 at 19:13
  • It is not being applied ex post facto it seems. They use the case as an example of what could happen. hupy.com/case_results/… – Putvi May 9 at 19:19
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Ex Post Facto laws in the sense forbidden by Article I, Section 10, Clause 1, of the US Federal Constitution are laws making some action criminal which was not criminal when committed, or laws increasing the punishment for crime which apply to crimes committed before the law was passed. This can include fines, but not civil damages. Laws which are not criminal laws may be changed retroactively in some cases, or if not, it will not be because of Article I, Section 10, Clause 1.

But in the case cited, it does not appear that the new law is being given retroactive effect, even in a civil case, unless I am misreading the available information.

  • There is certainly strong law in support of that reading of the U.S. Constitution. object.cato.org/sites/cato.org/files/serials/files/cato-journal/… But, a state constitution might be read otherwise and there are other interpretive doctrines to guard against retroactive civil litigation. It looks to me like the new law is being given retroactive effect based on the question, which is very problematic. – ohwilleke May 10 at 3:02

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