Over at the UCL Practitioner (a fellow TypePad immigrant), Kimberly has begun a series of posts on the statutory repeal rule. In the course of my studies to be admitted to the roll of Solicitors in England, I had occassion to re-read Blackstone, and his view of the common law. This is central to the statutory repeal rule, because rights at common law are not subject to this rule, according to the precedent she mentions. And the UCL as it stood pre-prop 64 clearly was not a right at common law, but it's not clear exactly why (to me). Is it because there was no standing requirement? there was an unfair competition tort at common law, so that can't be it, but it wasn't as extensive as the prior UCL.
But nor was there any common law tort for discrimination or sexual harassment in employment, yet the Supreme Court held only a year ago that amendments to that law were not presumptively retroactive in McClung. I'm having trouble reconciling to the two.
So, today, as a series of new ballot initiatives are voted on, we still don't know what one approved a year ago means.