                     REVISED, June 23, 1999

                 UNITED STATES COURT OF APPEALS
                      For the Fifth Circuit



                          No. 97-30734



                     ESTHER B. HULIN, ET AL.

                                               Plaintiffs

        SUSAN H. BERRY; THOMAS HULIN; SALLY H. BLANCHARD;
      MARY DESSELLE ROMANO; JOSEPH G. HULIN; JANET M. HULIN

                                         Plaintiffs-Appellants;


                             VERSUS


                 FIBREBOARD CORPORATION, ET AL.

                                               Defendants

                    AMERICAN TOBACCO COMPANY

                                                Defendant-Appellee.




          Appeal from the United States District Court
              For the Middle District of Louisiana
                          June 9, 1999


Before DEMOSS, PARKER, and DENNIS, Circuit Judges.

DENNIS, Circuit Judge:

     The district court granted the defendants a summary judgment

dismissing the plaintiffs’ diversity products liability actions

based on Louisiana law on the grounds that the decision of the

Supreme Court of Louisiana in Halphen v. Johns-Manville Sales
Corp., 484 So. 2d 110 (La. 1986), does not apply retroactively to

causes of action which arose before the date it was decided,

February 24, 1986.      We reverse and remand the case to the district

court for further proceedings.              The Louisiana Supreme Court’s

decisions firmly establish the principles that under the state

constitution and the Civil Code, courts do not make law but

interpret and apply law made by the Legislature or derived from

custom. In accord with those principles, the state’s highest court

has held that when it interprets the law in deciding a controversy

between     litigants   in   one   case,      that   decision     becomes     the

controlling interpretation of state law and must be given full

retroactive effect in all other cases, unless the court declares

otherwise or such application is barred by prescription or res

judicata.     Moreover, when the court interprets and applies the

Civil Code in deciding a case, the foregoing general rule of

adjudicative retroactivity is reinforced by civil law doctrine,

under which the court’s decision is considered to be declarative of

what the Civil Code has always meant.          The Louisiana Supreme Court

did not limit the retroactive effect of its decision in Halphen, a

case in which it interpreted and applied the Civil Code provisions

of   delictual   law.     Accordingly,      under    the   Erie   doctrine,    we

conclude that the Louisiana Supreme Court, applying its long-

standing rule, would determine that Halphen applies retroactively,

consistent    with   principles    of   res   judicata     and    prescription.

Consequently, Halphen must be given retroactive effect by federal

courts in the same manner.


                                        2
                   I. FACTUAL AND PROCEDURAL BACKGROUND

      On January 7, 1986, Esther B. Hulin, Susan H. Berry, Thomas

Hulin, Sally H. Blanchard, Mary H. Deselle, Joseph G. Hulin, and

Janet M. Hulin (“plaintiffs”) filed suit against American Tobacco

Company (“American Tobacco”) and various manufacturers of asbestos-

containing products (“defendants”) alleging that the defendants’

products contributed to the lung cancer and June 3, 1985 death of

Lenes J. Hulin, Jr., husband and father of the plaintiffs.                          In

their complaint, the plaintiffs sought recovery under the theories

of strict liability, ultrahazardous activities, and negligence.

Six weeks after the complaint was filed, the Louisiana Supreme

Court in Halphen answered the certified question asked by this

federal    court    of    appeals,     by       interpreting    and   applying     the

Louisiana      Civil     Code    and   its      jurisprudence    thereunder,       and

concluding      that     if     plaintiff       proves   that   the     product    was

unreasonably dangerous per se, i.e., if a reasonable person would

conclude that the danger-in-fact of the product outweighs its

utility, whether because of defective design or another kind of

defect, or unreasonably dangerous in construction or composition,

a manufacturer may be held liable for injuries caused by the

product even though the manufacturer did not know and reasonably

could not have known of the danger.               Halphen, 484 So. 2d at 116-17.

      On November 23, 1987, the plaintiffs amended their complaint

to   add   a   products       liability     claim    alleging    that    tobacco   is

unreasonably dangerous per se, i.e., because a reasonable person

would conclude that the danger-in-fact of tobacco outweighs its


                                            3
utility.

     In    April   1994,   the       district   court    in   this    case   granted

American Tobacco’s motion for summary judgment and dismissed all of

the plaintiffs’ claims except their allegation that the defendants’

products were unreasonably dangerous per se.                  On July 29, 1996,

American    Tobacco    filed     a    motion    in   limine   to     determine   the

applicability of Halphen to this suit.                On December 9, 1996, the

district court issued its Ruling on Motion in Limine To Determine

Applicability of Halphen, declaring that Halphen could not be

applied retroactively to this case.              In a separate ruling on that

date, the court granted American Tobacco’s motion for summary

judgment and dismissed it from this case after concluding that the

plaintiffs’ sole remaining claim, that the defendants’ products

were unreasonably dangerous per se, was inapplicable in light of

the court’s nonretroactivity ruling.             The plaintiffs appealed from

this judgment.

                           II. STANDARD OF REVIEW

         A district court’s decision of a question of state law is

subject to de novo review by this court.                Salve Regina College v.

Russell, 499 U.S. 225, 231 (1991).              A summary judgment ruling is

also reviewed de novo, applying the same criteria employed by the

district court.       Conkling v. Turner, 18 F.3d 1285, 1295 (5th Cir.

1994).

                                 III. DISCUSSION

       A. Federal Courts Must Apply The Law of the State,
     Except in Matters Governed By the Federal Constitution
                     Or By Acts of Congress


                                          4
     In Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), the

Supreme Court announced the governing principle that was to become

the heart of the Erie doctrine:

             Except in matters governed by the Federal
             Constitution or by Acts of Congress, the law
             to be applied in any case is the law of the
             state. And whether the law of the state shall
             be declared by its Legislature in a statute or
             by its highest court in a decision is not a
             matter of federal concern.       There is no
             federal general common law. Congress has no
             power to declare substantive rules of common
             law applicable in a state whether they be
             local in their nature or “general,” be they
             commercial law or a part of the law of torts.
             And no clause in the Constitution purports to
             confer such a power upon the federal courts.

Id. at 78.

     The Court has stated that, in determining the content of the

state law to be applied:

             the underlying substantive rule involved is
             based on state law and the State’s highest
             court is the best authority on its own law.
             If there be no decision by that court then
             federal authorities must apply what they find
             to be the state law after giving “proper
             regard” to relevant rulings of other courts of
             the State.

Commissioner v. Estate of Bosch, 387 U.S. 456, 465 (1967); see also

id. at 477 (“[A]bsent a recent judgment of the State’s highest

court, state cases are only data from which the law must be

derived. . . .”     (Harlan, J., joined by Fortas, J., dissenting)).

See, e.g., Jackson v. Johns-Manville Sales Corp., 781 F.2d 394,

397-98 (5th Cir.) (en banc) (In filling a void in state law the

federal court may not do merely what it thinks best, but rather

must do what it thinks the state’s highest court would deem best.),


                                   5
cert. denied, 478 U.S. 1022 (1986); Rogers v. Corrosion Prods.,

Inc., 42 F.3d 292, 295 (5th Cir.) (Although “[t]he decisions of

lower state courts should be given some weight, . . . they are not

controlling where the highest state court has not spoken on the

subject.”),       cert.     denied,    515     U.S.    1160     (1995);    Roginsky   v.

Richardson-Merrell, Inc., 378 F.2d 832, 851 (2d Cir. 1967) (“[W]hen

a federal court must determine state law, it should not slavishly

follow lower or even upper court decisions but ought to consider

all the data the highest court of the state would use.”); 19 CHARLES

ALAN   WRIGHT   ET AL.,   FEDERAL PRACTICE   AND   PROCEDURE § 4507, at 124 (2d ed.

1996)     (“[A]     responsible       determination       of    state     law   involves

something more than checking the digests for state court decisions

on point[.]”); 19 WRIGHT           ET AL.,    supra at 126-30 (“[T]he federal

court must determine issues of state law as it believes the highest

court of the state would determine them, not necessarily (although

usually this will be the case) as they have been decided by other

state courts in the past.”); 19 WRIGHT                ET AL.,   supra at 157 (“Thus,

intermediate appellate court decisions may be disregarded if the

federal court is convinced by other persuasive data that the

highest court of the forum state would decide the matter in a

different fashion.” (citing, e.g., Industrial Indem. Co. v. Chapman

and Cutler, 22 F.3d 1346, 1355 n.18 (5th Cir. 1994); Eljer Mfg.,

Inc. v. Liberty Mut. Ins. Co., 972 F.2d 805, 814 (7th Cir. 1992),

cert. denied, 507 U.S. 1005 (1993))).                    See also ERWIN CHEMERINSKY,

FEDERAL JURISDICTION § 5.3, at 325 (3d ed. 1999) (“In other words, a

federal court in a diversity case is to apply the law the state’s


                                              6
highest court         likely    would      apply.     The   federal   court   should

consider lower state court decisions, but is not bound to apply and

follow them if the federal court believes that they would not be

affirmed by that state’s highest court.                     The federal court may

consider all available material in deciding what law would be

followed by a state.”).

              B. Louisiana Judicial Retroactivity Doctrine
           Declared By The State’s Highest Court And Derived
         From Civil, Common, and Constitutional Law Sources

     Louisiana         jurisprudential           principles,     doctrines,        and

traditions      are    derived      from    Anglo-American     constitutional      and

common    law    models,       as   well    as   European    civil    law   sources.

Louisiana courts adhere to and apply the same constitutional

principles      of    separation      of    powers,    justiciability,      case   or

controversy, and equal protection of laws as the federal and other

state courts.         Under Louisiana’s Constitution, the power to make

substantive laws is vested exclusively in the legislature.                     Under

the State’s constitution and Civil Code, Louisiana courts cannot

make law but are bound to decide cases according to their best

understanding of the law established by legislation and custom.

The overwhelmingly prevalent norm in Louisiana, as in the common

law, the federal courts, and civil law jurisdictions, is that

judicial decisions must be applied retroactively.

     In accordance with that authoritative standard, the Supreme

Court of Louisiana has declared that the general rule is that,

unless a judicial decision specifies otherwise, it is to be given

both retrospective and prospective effect.                  Succession of Clivens,


                                             7
426 So. 2d 585, 587, 594 (La. 1983) (on original hearing and

rehearing); Harlaux v. Harlaux, 426 So. 2d 602, 604 (La.), cert.

denied, 464 U.S. 816 (1983).      Fifty years earlier the same court in

Norton v. Crescent City Ice Manufacturing Co., 150 So. 855 (La.

1933), applied substantially the same rule:

           The law as construed in an overruled case is
           considered as though it had never existed, and
           the law as construed in the last case is
           considered as though it has always been the
           law. As a general rule, the law as construed
           in   the    last   decision    operates   both
           prospectively and retrospectively, except that
           it will not be permitted to disturb vested
           rights.


Id. at 858.    See also Construction Materials, Inc. v. American

Fidelity Fire Ins. Co., 388 So. 2d 365, 367 (La. 1980) (“‘[T]he

decisions of a court of last resort are not the law, but only the

evidence of what the court thinks is the law.’” (quoting Norton,

150 So. at 858)); Jackson v. Doe, 296 So. 2d 323, 323 (La. 1974)

(“Prospective [only] application of judicial decisions is the

exception rather than the general rule of law.” (rejecting argument

that Garlington v. Kingsley, 289 So. 2d 88 (La. 1974), overruling

doctrine of   charitable    immunity,    should     operate   prospectively

only.));   Jackson,   296   So.    2d    at   323   (“Prospective    [only]

application of judicial decisions is legislating.”            (Summers, J.,

concurring)); Charles v. United States, 15 F.3d 400, 402 n.4 (5th

Cir. 1994) (“‘Generally, [under Louisiana law] unless a decision

specifies otherwise, it is given both retrospective and prospective

effect.’” (quoting Succession of Clivens, 426 So. 2d at 587));

Hutson v. Madison Parish Police Jury, 496 So. 2d 360, 369 (La. App.

                                     8
2d Cir.), writ denied, 498 So. 2d 758 (La. 1986) (same); McLaughlin

v. Herman & Herman, 729 F.2d 331, 334 (5th Cir. 1984) (a diversity

case finding that the rule of two Louisiana state court decisions

“is within     the    general   rule,    rather      than   the   exception,     and

therefore should be applied prospectively and retroactively”).

      The legislative power of the State of Louisiana is vested in

the Legislature. LA. CONST. art. III, § 1.                  Except as expressly

provided by the constitution, no other branch of government, nor

any   person   holding    office    in    one   of    them,    may    exercise   the

legislative power.       Id. art. II, §§ 1, 2.         See Board of Comm’rs of

the Orleans Levee Dist. v. Department of Natural Resources, 496 So.

2d 281, 286 (La. 1986).

      Under the Louisiana Civil Code, legislation and custom are the

only authoritative sources of law.                  LA. CIV. CODE art. 1; A.N.

YIANNOPOULOS, CIVIL LAW SYSTEM 117 (2d ed. 1999).                    Jurisprudence,

doctrine, conventional usages, and equity are merely persuasive

sources of law.       YIANNOPOULOS, supra at 117.           Hence, the Louisiana

Supreme   Court      consistently   has      held    that     judicial   decisions

interpreting and applying the provisions of the Civil Code operate

both retroactively and prospectively because they “are not the law,

but only the evidence of what the court thinks is the law.”

Norton,   150 So. at 858; Construction Materials, 388 So. 2d at 367

(quoting Norton); see YIANNOPOULOS, supra at 199.

      In Louisiana and other civil law jurisdictions,                  the judicial

method of applying Civil Code principles by analogy to facts

unforeseen by the Code always has been used and considered as


                                         9
judicial interpretation of law and not law making.                              See Ardoin v.

Hartford Accident and Indem. Co., 360 So. 2d 1331, 1334 (La. 1978);

Langlois     v.     Allied     Chem.       Corp.,   249    So.     2d     133        (La.    1971);

Ferdinand Fairfax Stone, Tort Doctrine in Louisiana: The Materials

For the Decision of a Case, 17 TUL. L. REV. 159, 213 (1942); Joe W.

Sanders, The “Civil Law” in the Supreme Court of Louisiana, 15 LA.

B.J. 15 (1967); Clarence J. Morrow, Louisiana Blueprint: Civilian

Codification and Legal Method For State and Nation, 17 TUL. L. REV.

537, 552 (1943).             See also PHILIPP HECK, JURISPRUDENCE               OF   INTERESTS: AN

OUTLINE,   IN THE   JURISPRUDENCE    OF   INTERESTS 41 (M. Magdalena Schoch trans.,

1948); FRANCOIS GÉNY, MÉTHODE D’INTERPRÉTATION            ET   SOURCES   EN   DROIT PRIVÉ POSITIF

§§ 107, 165, 166 (La. State Law Inst. trans., 2d ed. 1954).                                       For

example, the Louisiana Supreme Court in Frazier v. Harper, 600 So.

2d 59, 62-63 (La. 1992), held that its prior decisions in Sims v.

Sims,   358     So.     2d    919    (La.     1978),   and       T.L.     James        &    Co.    v.

Montgomery, 332 So. 2d 834 (La. 1976), could not be limited to

prospective         application           because   the        court      in     those       cases

interpreted Civil Code Article 2402 (1870), and other community

property principles, to require that an employee’s pension right is

a community asset to the extent that it derives from the employee’s

employment      during       the     marriage.      “Consequently,               the       judicial

decisions . . . did not create law to be applied prospectively but

interpreted         principles       of     legislated     law      that       antedated          and

governed the matrimonial regimes” established prior to the Sims and

T.L. James decisions.               Id. at 63.

     In most cases, however, when the Louisiana Supreme Court


                                               10
interprets and applies Civil Code principles by analogy to cases

unforeseen by the Code, the issue of the temporal effect of the

decision is not raised, because it is so well understood that

whatever the court now holds to be the law of the Civil Code

becomes what has always been the law, even if the new holding

overrules or modifies an earlier decision of the court.1                One

striking example is the Louisiana Supreme Court’s use of the Code

articles relating to servitudes by analogy to develop a complete

body of mineral law to regulate and accommodate property interests

created or affected by the unforeseen phenomenon of oil and gas

production.    See, e.g., Frost-Johnson Lumber Co. v. Salling’s

Heirs, 91 So. 207 (La. 1920); Sanders, supra at 22; La. State Law

Inst., Introduction, LA. MINERAL CODE, LA. REV. STAT. ANN. §§ 31 et seq.

(West 1989); LA. REV. STAT. ANN. § 31:2 cmt. (West 1989).          Other

outstanding instances may be seen in the state supreme court’s

decisions   interpreting   and   applying   Civil   Code   principles   by

analogy to recognize a community property right in pension funds;

Sims v. Sims, 358 So. 2d 919 (La. 1978), and T.L. James & Co. v.

Montgomery, 332 So. 2d 834 (La. 1976); and to afford individuals

access to courts for reparation due to injuries caused by marketing


      1
        Cf. Paul J. Mishkin, Foreword: The High Court, The Great
Writ, And The Due Process of Time and Law, 79 HARV. L. REV. 56, 57
(1965) (“Most likely the [United States Supreme Court’s] failure to
respond in terms, [to pre-Linkletter suggestions that particular
new holdings be given only prospective or limited retroactive
effect], . . . rested on the belief that no answer was really
necessary, that is so ‘obvious’ as to be taken for granted that
whatever the Court now holds to be the law of the Constitution
becomes ‘what has always been the law’ –- even if the new holding
overrules an earlier decision of the Court.”)

                                   11
of unsafe products and by abuses of property rights that expose

society to dangerous things, substances, instrumentalities, or

technology.    See, e.g., Weber v. Fidelity & Casualty Ins. Co., 250

So. 2d 754 (La. 1971); Langlois v. Allied Chem. Corp., 249 So. 2d

133 (La. 1971); Loescher v. Parr, 324 So. 2d 441 (La. 1975);

Holland v. Buckley, 305 So. 2d 113 (La. 1974); Craig v. Montelepre

Realty Co., 211 So. 2d 627 (La. 1968); Butler v. Baber, 529 So. 2d

374 (La. 1988); Kent v. Gulf States Utils. Co., 418 So. 2d 493 (La.

1982).    The Louisiana judiciary and legal profession consistently

have   considered   these   decisions    to   be   fully   retroactive   and

prospective generally because they are judicial decisions, rather

than legislation, and in particular because they are considered to

be judicial interpretations of the Civil Code.

       What Francois Terré has said with respect to jurisprudence in

French civil law is generally true in the Louisiana and other civil

law systems:

            “[A] new jurisprudential rule is always
            applied in all new actions, without any
            consideration of the date on which the facts
            of the action occurred and even when these
            facts occurred prior to the change in the
            jurisprudence.” That is so for a very simple
            reason. When it confers a certain sense on a
            [legislative] rule, the jurisprudence becomes
            part and parcel of [fait corps avec] that
            rule. As a result, this rule is thought to
            have always had this signification. More than
            retroactive the jurisprudence is, in the image
            of interpretative laws, declarative.

FRANCOIS TERRÉ, INTRODUCTION GÉNÉRALE AU DROIT 247 n.228 (4th ed. 1998)

(quoting PAUL ROUBIER, LE DROIT TRANSITOIRE CONFLITS DES LOIS DANS LE TEMPS

24 n.7 (2d ed. 1960)) (Translation by J.R. Trahan, Associate


                                    12
Professor of Law, L.S.U. Paul M. Hebert Law Center).

      The technique of applying judicial decisions prospectively but

not retroactively is inconsonant with the basic civil law tenet

that courts interpret but do not make law.                “It would certainly be

in violation of Article 5 of the French Civil Code . . . and

incompatible with the ideas of the redactors of the Louisiana Civil

Code.”   YIANNOPOULOS, supra at 151.             “No attempt has been made in

France   or   Germany    to    develop      a    technique      permitting    such   a

disposition of a case.         In view of the position taken by accepted

French and German theory that a decision does nothing more than

dispose of the case before the court, its development would be very

difficult.”    ARTHUR TAYLOR   VON   MEHREN & JAMES RUSSELL GORDLEY, THE CIVIL LAW

SYSTEM 1160 (2d ed. 1977) (footnotes omitted).

      In the relatively small number of cases in which the Louisiana

Supreme Court      has   limited      the   retroactive         effect   of   its   own

decisions, it has expressly done so in the same opinion that

announced the decision.         See, e.g., In re Adoption of B.G.S., 556

So. 2d 545, 558 (La. 1990) (limiting retroactive effect of its

decision declaring unconstitutional an adoption statute purporting

to   give mother    of   illegitimate           child   power    to   terminate     the

father’s parental rights without notice or opportunity to be

heard); Bergeron v. Bergeron, 492 So. 2d 1193, 1200 (La. 1986)

(applying restatement of jurisprudential burden-of-proof rule to

child custody modification cases tried after finality of this

judgment); Lovell v. Lovell, 378 So. 2d 418, 421-22 (La. 1979)

(final alimony judgments would remain intact although they were


                                         13
rendered under a law declared unconstitutional because it provided

alimony for women only); Barnett v. Develle, 289 So. 2d 129, 147-49

(La.     1974)        (limited      retroactivity               of        declaration      of

unconstitutionality of firemen’s minimum wage statutes); Sumrall v.

J.C.    Penny    Co.,     120     So.    2d        67,   70     (La.      1960)    (limiting

retroactivity of interpretation of statute imposing penalties for

non-payment of workers’ compensation).                    See also Cole v. Celotex

Corp., 599 So. 2d 1058, 1072 (La. 1992) (dictum to the effect that

when retroactive effect of a decision is to be declined the court

clearly has articulated that the principle being announced was one

overturning a firmly entrenched rule).

       In Succession of Clivens, 426 So. 2d 585 (La. 1982), some

members of the Louisiana Supreme Court may have entertained the

idea of making the court’s prior decision in Succession of Brown,

388 So. 2d 1151 (La. 1980), apply prospectively only under the

Chevron Oil test, but a majority of the court rejected that notion.

Succession of Clivens, 426 So. 2d at 594 (on rehearing).                              Instead,

a   majority     agreed    upon    the    result,         but    not      upon    a    unified

rationale,       in    deciding     that           Succession        of    Brown       applies

retroactively to January 1, 1975, the effective date of the 1974

Louisiana Constitution.            The Succession of Brown decision, which

was silent as to its temporal effect, declared Civil Code Article

919, which discriminated against illegitimate children in intestate

successions, unconstitutional as conflicting with Article 1, § 3 of

the 1974 Louisiana Constitution.                    Because there was no majority

opinion in Succession of Clivens, it is impossible to divine a


                                              14
clearly preponderate rationale for the result of that decision.

The Succession of Clivens result, however, is consistent with an

application of the general rule that, unless the court rendering

the decision states otherwise, its decision applies retroactively.

Because the court in Succession of Brown did not provide otherwise,

its decision should apply retroactively, but its retroactivity must

be limited by an independent overriding rule contained in the 1974

Louisiana Constitution.

      It is well established that the effect of even a fully

retroactive      jurisprudential        decision            is   limited     by     certain

independent overriding legal principles.                    In both civil and common

law   systems,    the   fully      retroactive        effect      of     every    judicial

decision is barred by independent legal principles of law designed

to place limits on litigation in the interest of legal stability.

In the continental civil law systems, jurists recognize that the

principle of causae finitae –- extinguished actions -– prevents

retroactive      legislation      or   judicial        decisions         from     affecting

litigation that has been terminated by a final judgment, closed by

compromise, or extinguished by prescription.                     See ROUBIER, supra at

32; PATRICE LEVEL, ESSAI   SUR   LES CONFLITS   DE   LOIS   DANS LE   TEMPS 33 n.19, 161-

62 n.90 (1959) (Translation by Prof. J.R. Trahan); JACQUES GHESTIN &

GILLES GOUBEAUX, TRAITÉ   DE   DROIT CIVIL: INTRODUCTION GÉNÉRALE 415 n.462 (3d

ed. 1990) (Translation by Prof. J.R. Trahan).                         That res judicata,

statutes of limitation, and other independent legal principles have

this effect in federal and common law is illustrated by the Supreme

Court’s decisions in James B. Beam Distilling Co. v. Georgia, 501


                                         15
U.S. 529 (1991), and Reynoldsville Casket Co. v. Hyde, 514 U.S. 749

(1995), discussed in some detail later in this opinion.                       In

Louisiana, the principles of res judicata and extinguishment of

rights or obligations by prescription limit the retrospective

effect of retroactive legislation.           See Chance v. American Honda

Motor Co. Inc., 635 So. 2d 177 (La. 1994) (prescription); Hall v.

Hall, 516 So. 2d 119 (La. 1987) (same); Belanger v. Great Am.

Indem. Co., 188 F.2d 196, 198 (5th Cir. 1951) (Louisiana diversity

case -– res judicata); Petroleum Helicopters, Inc. v. Avco Corp.,

834 F.2d 510, 511 (5th Cir. 1987) (same); Harris v. Jackson, 439

So. 2d 1120, 1121 n.4 (La. App. 1st Cir. 1983), writ denied, 444

So. 2d 1240 (La. 1984) (same).           By analogy, although there is a

dearth of jurisprudential discussion on the subject, there would

appear to be a similar bar to the retroactive application of a new

jurisprudential interpretation to actions that have been finally

terminated     by   judgments    or    compromises,      or   extinguished    by

prescription.       Cf. Succession of Lambert, 28 So. 2d 1, 9 (La.

1946).

     An   overriding     independent     legal    principle    established    by

Article 14, § 26 of the 1974 Louisiana Constitution provides that,

subject to exceptions not here pertinent, the constitution is not

retroactive and does not create any right which did not exist under

the previous constitution based upon actions or matters occurring

prior    to   the   effective   date   of   the   1974   constitution.       The

acknowledged illegitimate child’s cause of action in Succession of

Brown arose before the 1974 constitution upon the death of her


                                       16
father in 1971.             When the 1974 Louisiana Constitution became

effective on January 1, 1975, its new guarantee of equality for

illegitimate children contained in Article 1, § 3 repealed or

rendered unconstitutional Civil Code Article 919, which had denied

such equality, prospectively from that effective date. Because, as

provided by Article 14, § 26, the 1974 Louisiana Constitution

generally did not create new rights retroactively, the court’s

decision in Succession of Brown, recognizing new rights granted

illegitimate children by Article 1, § 3, necessarily was limited in

its retroactive effect to intestate successions opened after the

effective date of the constitution on January 1, 1975.

       In    the    present    case,          of    course,    we   are    not    seeking   to

determine the “true” reason for the court’s decision in Succession

of Clivens or even to prove that it reached the correct result.

See Katherine Shaw Spaht, Developments in the Law (Successions), 47

LA. L. REV. 471, 471-79 (1986) (suggesting that Succession of Clivens

cannot be reconciled with Trimble v. Gordon, 430 U.S. 762 (1977)).

The discussion is intended merely to demonstrate that it cannot be

said    that       Succession       of    Clivens        was    a   departure       from    or

inconsistent         with     the        Louisiana        doctrine        of     adjudicative

retroactivity.

       Additionally, it should be noted that the Louisiana Supreme

Court       has    established           by        jurisprudence     constante       another

independent legal principle in its consistent holdings that, where

an injury has occurred for which the injured party has a cause of

action, that cause of action is a right which is protected by the


                                                   17
guarantee of due process.         See Soloco, Inc. v. Dupree, 707 So. 2d

12, 16 (La. 1998);       Faucheaux v. Alton Ochsner Med. Found. Hosp. &

Clinic, 470 So. 2d 878, 878-79 (La. 1985); Lott v. Haley, 370 So.

2d 521, 524 (La. 1979); Burmaster v. Gravity Drainage Dist. No. 2,

366 So. 2d 1381, 1387 (La. 1978).              The court has concluded that

statutes enacted after the acquisition of such a cause of action,

therefore, cannot be retroactively applied so as to divest the

plaintiff   of   his     cause   of   action    because    such   a   retroactive

application      would     contravene     the     due     process     guarantees.

Faucheaux, 470 So. 2d at 878; Lott, 370 So. 2d at 524; Terrebonne

v. South Lafourche Tidal Control Levee Dist., 445 So. 2d 1221,

1224-25 (La. 1984).       The same principle, by analogy, appears also

to be applicable to changes to jurisprudential interpretations

brought about through subsequent judicial decrees.                  Succession of

Lambert, 28 So. 2d at 9.

     The Louisiana Supreme Court first recognized a strict products

delictual liability theory of recovery under Louisiana civil law in

Weber v. Fidelity & Casualty Insurance Co., 250 So. 2d 754 (La.

1971).   At that time, the Louisiana delictual articles, Civil Code

articles 2315-2322, were virtually identical to those of the French

Civil Code, and contained no literal basis for strict liability

based on defective products.            The principal provision, Article

2315, however, stated that, “Every act whatever of man, that causes

damage to another, obliges him by whose fault it happened, to

repair it.”      Thus, the principle of fault under the Code is a

dynamic one, the meaning of which the legislature has left to the


                                        18
interpretation of the jurists.     See Ardoin v. Hartford Accident &

Indem. Co., 360 So. 2d 1331 (La. 1978); Entrevia v. Hood, 427 So.

2d 1146 (La. 1983); Langlois v. Allied Chemical Corp., 249 So. 2d

133 (1971); GÉNY, supra § 99; MARCEL PLANIOL, 1 TRAITÉ   ÉLÉMENTAIRE DE   DROIT

CIVIL § 5 (Quasi-Offenses), at 441-47 (La. State Law Inst., trans.,

12th ed. 1939); STONE, LOUISIANA CIVIL LAW TREATISE: TORT DOCTRINE §§ 59,

60 (1977). Negligence and imprudence are not the only constituents

of fault, for the courts, in order to obtain standards of fault,

may advert to other articles of the Code, statutes, regulations,

constitutional provisions, and even to the jurisprudence.                  See

Ardoin, 360 So. 2d at 1334; Stone, Tort Doctrine in Louisiana,

supra at 213. Accordingly, the Louisiana courts were authorized to

recognize and interpret the strict tort products liability doctrine

by analogy as a kind of fault under Civil Code articles 2315–2322.

See, e.g., DeBattista v. Argonaut-Southwest Ins. Co., 403 So. 2d

26, 30-31 (La. 1981); Bell v. Jet Wheel Blast, 462 So. 2d 166 (La.

1985); Entrevia v. Hood, 427 So. 2d 1146 (La. 1983); Langlois v.

Allied Chemical Corp., 249 So. 2d 133 (La. 1971).

     By the mid-1980s, the Louisiana Supreme Court had indentified

and applied a body of products liability principles by analogy

within the framework of the Civil Code which included theories of

recovery for manufacturing defects, risk/utility design defects,

and failures to give adequate warnings.       See, e.g., Hunt v. City

Stores, Inc., 387 So. 2d 585 (La. 1980) (applying risk/utility test

for design defect products liability and strict liability under

Civil Code Article 2317); Winterrowd v. Travelers Indem. Co., 462


                                   19
So. 2d 639 (La. 1985) (adequate warning); Hebert v. Brazzel, 403

So. 2d 1242 (La. 1981) (risk/consumer expectation design defect;

adequate warning); DeBattista v. Argonaut-Southwest Ins. Co., 403

So. 2d 26 (La. 1981) (risk/consumer expectation design defect case

comparing strict liability under Civil Code Article 2317); Chappuis

v. Sears, Roebuck & Co., 358 So. 2d 926 (La. 1978) (adequate

warning); Weber v. Fidelity & Casualty Ins. Co., 250 So. 2d 754

(La. 1971) (manufacturing defect case recognizing that a product

may be defective in design, composition, or manufacture).    Along

with the liability theories, the jurisprudence had recognized the

defense of comparative fault.   Jet Wheel Blast, 462 So. 2d at 171.

     In 1985, this federal court of appeals certified to the

Louisiana Supreme Court the question:   May a manufacturer be held

liable for injuries caused by an unreasonably dangerous product if

the manufacturer establishes that it did not know and reasonably

could not have known of the inherent danger posed by its product?

Halphen v. Johns-Manville Sales Corp., 755 F.2d 393, 394 (5th Cir.

1985) (en banc). Because the general nature of the question called

for an answer based upon a comprehensive review of Louisiana law

and jurisprudence related to products liability, the Louisiana

Supreme Court surveyed the delictual provisions of the Civil Code,

the strict products liability jurisprudence cited above, other

related jurisprudence, see, e.g., Turner v. New Orleans Pub. Serv.,

Inc., 476 So. 2d 800, 806 (La. 1985) (majority and concurring

opinions); Entrevia v. Hood, 427 So. 2d 1146 (La. 1983); Kent v.

Gulf States Utils. Co., 418 So. 2d 493 (La. 1982); Olsen v. Shell


                                20
Oil Corp., 365 So. 2d 1285 (La. 1978); Loescher v. Parr, 324 So. 2d

441 (La. 1975); Turner v. Bucher, 308 So. 2d 270 (La. 1975);

Holland v. Buckley, 305 So. 2d 113 (La. 1974); Langlois v. Allied

Chemical Corp., 249 So. 2d 133 (La. 1971); Welch v. Outboard Marine

Corp.,    481   F.2d   252    (5th   Cir.    1973),      as    well    as    comparable

decisions by federal and other state courts, and the writings of

recognized leading commentators on products liability law.                       In an

opinion discussing these authorities, the Halphen court answered

the certified opinion:          In a strict products liability case, a

manufacturer     may   be     held   liable       for    injuries      caused   by   an

unreasonably dangerous product, although the manufacturer did not

know and reasonably could not have known of the danger, if the

plaintiff    proves    that    the   product       was   unreasonably        dangerous

because: (1) the danger-in-fact of the product, whether foreseeable

or not, outweighed the utility of the product due to its design or

due to the nature of the product per se; or (2) the product was

unreasonably dangerous in construction or composition.                        Halphen,

484 So. 2d at 115-16.

     In reaching its conclusions, the state supreme court in

Halphen    applied     its    previously      developed        products      liability

jurisprudence     and,   by    analogy,      as    it    had    done    in    Hunt   and

DeBattista, the principle of legal fault or strict liability under

Civil Code articles 2317-2322.               Id. at 116.          In its landmark

decision in Loescher v. Parr, 324 So. 2d 441 (La. 1975), the court

had marked the contours of this form of fault and liability

essentially as follows:         When harm results from the conduct of a


                                        21
person or defect of a thing which creates an unreasonable risk of

harm to others, a person legally responsible under these Code

articles for the supervision, care, or guardianship of the person

or thing may be held liable for the damage thus caused, despite the

fact that no personal negligent act or inattention on the former’s

part is proved.    The injured person must prove the vice (i.e.,

unreasonable risk of injury to another) in the person or thing

whose act causes the damage, and that the damage resulted from this

vice.   Once this is proved, the owner or guardian responsible for

the person or thing can escape liability only if he shows the harm

was caused by the fault of the victim, by the fault of a third

person, or by an irresistible force.          Halphen, 484 So. 2d at 116

(citing Loescher).     Thus, the strict liability or legal fault

arising from the Code provisions was more than a presumption of

negligence.    The owner or guardian could not be absolved of

liability even if he proved that he did not know and could not have

known of the unreasonable risk of harm to others.            Id. (citing

Loescher (strict liability for damage done by tree with a non-

apparent internal disease under Civil Code Article 2317)); Holland

v. Buckley, 305 So. 2d 113 (La. 1974) (strict liability for pet

dog’s first bite under Civil Code Article 2321); Turner v. Bucher,

308 So. 2d 270 (La. 1975) (strict liability of parent for damage

caused by his child under Civil Code Article 2318); Olsen v. Shell

Oil Corp., 365 So. 2d 1285 (La. 1978) (strict liability of a

building owner for premises defect under Article 2322)).

     The   Louisiana   Supreme   Court   in    Halphen   noted   that   the


                                  22
principle       of    strict   products      liability       is   analogous     to   the

principle underlying Civil Code articles 2317-2322.                      Consequently,

after fully describing the similarities, e.g., the custodian and

the    manufacturer       both    are   in    the     best    position     to   control

unreasonable risk to others by the thing or the product, the court

concluded that when a plaintiff proves that a product is badly

defective because        it is unreasonably dangerous in construction or

composition, or because its utility is outweighed by its danger-in-

fact due to its design or intrinsic nature, the producer should be

held       strictly   liable     to   the    innocent       consumer    regardless   of

scientific inability to know or avoid the danger.                       Otherwise, the

liability of a manufacturer who distributes large numbers of such

unreasonably         dangerous    products        causing    multiple    injuries    and

deaths to innocent consumers would be less strict than that of an

ordinary homeowner for the act or defect of his child, animal, or

tree.2      Halphen, 484 So. 2d at 116-18.

       Subsequently, the Louisiana Supreme Court and the Louisiana

courts of appeal have applied the jurisprudential Civil Code

interpretations expressed in Halphen retroactively to a large




       2
       Subsequent to Halphen, the Louisiana Supreme Court, in Ross
v. La Coste de Monterville, 502 So. 2d 1026 (La. 1987), observed
that, under French law, a manufacturer may be held strictly liable
for the damage done by its defective product, a bottle of lemonade,
after its sale to a consumer, on the theory that the manufacturer
retained the garde of the structure of the product. Id. at 1030
(citing and quoting from Société Commerciale Européenne des
Brasseries “Brasseries de la Meuse” v. Etablissements Boussois-
Souchon-Neuvesel, et al., Cass. 2e civ. ch., June 5, 1971 (quoted
in VON MEHREN ET AL., supra at 676-77)).

                                             23
number of cases.3

     Considering the decisions of the Supreme Court of Louisiana

and all pertinent material available, we conclude that the highest

court of the State of Louisiana would continue to consider that its

decision in Halphen v. Johns-Manville Sales Corp., 484 So. 2d 110

(La. 1986), applies retroactively, consistently with the state law

of res judicata and liberative prescription.   The Supreme Court of

Louisiana consistently has held that, generally, unless a judicial

decision specifies otherwise, it is to be given both retrospective

and prospective effect.   In Halphen, the state supreme court did

     3
        See, e.g., Toups v. Sears, Roebuck & Co., 507 So. 2d 809
(La. 1987); Bloxom v. Bloxom, 512 So. 2d 839 (La. 1987); Brown v.
Sears, Roebuck & Co., 514 So. 2d 439 (La. 1987); Reilly v. Dynamic
Exploration, Inc., 571 So. 2d 140 (La. 1990); Guidry v. Frank
Guidry Oil Co., 579 So. 2d 947 (La. 1991), overruled on other
grounds, Gauthier v. O’Brien, 618 So. 2d 825 (La. 1993); Cosse v.
Allen-Bradley Co., 601 So. 2d 1349 (La. 1992); Hines v. Remington
Arms Co., 648 So. 2d 331 (La. 1994); Longo v. E.I. Dupont de
Nemours & Co., 632 So. 2d 1193 (La. App. 4th Cir.), writ denied,
637 So. 2d 464 (La. 1994); Laing v. American Honda Motor Corp., 628
So. 2d 196 (La. App. 2d Cir. 1993), writ denied, 635 So. 2d 239
(La. 1994); Sharkey v. Sterling Drug, Inc., 600 So. 2d 701 (La.
App. 1st Cir.), writ denied, 605 So. 2d 1099 (La.), writ denied,
605 So. 2d 1100 (La. 1992); Putnam v. Gulf States Utils. Co., 588
So. 2d 1223 (La. App. 1st Cir. 1991); Berry v. Commercial Union
Ins. Co., 565 So. 2d 487 (La. App. 2d Cir.), writ denied, 569 So.
2d 959 (La. 1990); Traut v. Uniroyal, Inc., 555 So. 2d 655 (La.
App. 4th Cir. 1989); Poirrier v. Trailmobile, Inc., 550 So. 2d 1349
(La. App. 4th Cir. 1989), writ denied, 556 So. 2d 58 (La. 1990);
McCoy v. Otis Elevator Co., 546 So. 2d 229 (La. App. 2d Cir.), writ
denied, 551 So. 2d 636 (La. 1989); Addison v. Williams, 546 So. 2d
220 (La. App. 2d Cir.), writ denied, 550 So. 2d 634 (La. 1989);
Antley v. Yamaha Motor Corp., 539 So. 2d 696 (La. App. 3d Cir.
1989); Zumo v. R.T. Vanderbilt Co., 527 So. 2d 1074 (La. App. 1st
Cir. 1988); Prather v. Caterpillar Tractor Co., 526 So. 2d 1325
(La. App. 3d Cir.), writ denied, 531 So. 2d 272 (La. 1988); Price
v. Corpus Eng’g Assocs., 515 So. 2d 589 (La. App. 1st Cir.), writ
denied, 516 So. 2d 133 (La. 1987); LeBleu v. Homelite Div. of
Textron, Inc., 509 So. 2d 563 (La. App. 3d Cir. 1987); Jurovich v.
Catalanotto, 506 So. 2d 662 (La. App. 5th Cir.), writ denied, 508
So. 2d 87 (La. 1987).

                                24
not specify that its decision was to be limited in its temporal

application.     The Louisiana Supreme Court also has held that a

judicial   decision      interpreting         the    Civil    Code      operates   both

retroactively and prospectively, even if it overrules a prior

jurisprudential interpretation, because it is not the law but only

evidence of what the court thinks is the law.                    These holdings are

consistent with the well-established principles of other civil-law

jurisdictions.         Likewise,    in    Louisiana          and   other      civil-law

jurisdictions,     the    judicial       method       of     applying     Civil    Code

principles by analogy to facts not specifically foreseen by the

Code   always    has     been   used     and        considered     to    be   judicial

interpretation of the law and not lawmaking, because the only

authoritative sources of law under the Civil Code are legislation

and custom.     In Halphen, the Louisiana Supreme Court applied Civil

Code principles and prior jurisprudential interpretations of those

principles by analogy to a products liability issue that had not

been foreseen by the Code.         Moreover, the Louisiana Supreme Court

has established a rule of jurisprudence constante, in a series of

uniform and homogenous rulings, that, where an injury has occurred

for which the injured party has a cause of action, legislation or

judicial decisions cannot be applied retroactively to divest the

plaintiff of his cause of action because it is protected by the

guarantee of due process.          Although jurisprudence constante does

not represent legislative force in the proper sense, such as is

attached to legislated law or custom, its long and continuous use

and influence indicate that it is in harmony with the Code and that


                                         25
deviation therefrom would impair the social values protected by the

Code and the precedent series.              Because the state and federal

courts in Louisiana already have applied Halphen retroactively to

a   large   number   of   cases,   a   retrospective   limitation   of   its

jurisprudential interpretations to prospective-only application

would violate the principle that similarly situated litigants

should be treated equally.         Finally, as noted in the next section

of this opinion, the United States Supreme Court evidently has

returned to the rule of adjudicative retroactivity, ending its

thirty-year experiment with making new jurisprudential rules apply

prospectively on a selective basis and, except perhaps for a very

rare and extraordinary case, purely prospectively.           Accordingly,

the persuasive influence that the United States Supreme Court’s

decisions have on state courts with respect to retroactivity

doctrine now will weigh on the side of the rule of adjudicative

retroactivity.

      The principal thrust of the district court’s opinion and the

defendant-appellee’s position on appeal is that the Louisiana

Supreme Court’s decision in Halphen made substantive laws, and

that, therefore, those laws must be applied prospectively only as

if they were legislation enacted by the legislature.         The argument

is in diametric contradiction with the Louisiana Supreme Court

decisions, the Louisiana Constitution, the Louisiana Civil Code,

and civil law adjudicative retroactivity doctrine.

      Under the distribution of powers by the Louisiana Constitution

of 1974, the powers of government of the State are divided into


                                       26
three separate branches.      LA. CONST. art. II, § 1.    Except   for

provisions not applicable in the present case, the constitution

provides that no one of these branches, nor any person holding

office in one of them, shall exercise power belonging to either of

the others.    LA. CONST. art. II, § 2.   The legislative power of the

State is vested in a legislature, consisting of a Senate and a

House of Representatives.     LA. CONST. art. III, § 1.   The judicial

power is vested in a supreme court, courts of appeal, district

courts, and other courts authorized by the constitution.     LA. CONST.

art. V, § 1.      The supreme court may establish procedural and

administrative rules for the judiciary not in conflict with law.

LA. CONST. art. V, § 5(A).      Consequently, the Louisiana Supreme

Court does not have the legislative power to make substantive laws

of general application in the nature of legislation.       See Orleans

Levee Dist., 496 So. 2d at 286; cf. State ex rel. Lisso v. Police

Jury of Red River Parish, 41 So. 85, 86 (La. 1906) (“[I]t is not,

and cannot, reasonably, be asserted, that the judiciary department

is vested with the slightest shadow of authority in the matter of

making laws; its sole function being to interpret the laws, as

made[.]”).

       Consistently with the constitution, and based on its own civil

law tradition, Article 1 of the Louisiana Civil Code provides that

the sources of law are legislation and custom.        In other words,

Louisiana judicial decisions are not sources but interpretations of

law.

       The district court and the defendant-appellee disregarded the


                                  27
substantial body of Louisiana Supreme Court decisions expressly

holding that under the state constitution and Civil Code, judicial

decisions are not law but the judges’ interpretations of the law,

and that a judicial decision is to be applied retroactively unless

the court rendering it specifies otherwise.        They pay no heed to

any of the other authorities contrary to their position, such as

the decisions of the United States Supreme Court and the learned

works of civil- and common-law scholars.         Instead, the district

court and the defendant-appellee rely exclusively on a state court

of   appeal   opinion   that   uncritically   accepts   a   manufacturer-

defendant’s argument which is based on nothing more than a flawed

syllogism of word-logic.4       The statement in the court of appeal

      4
       In Young v. Logue, 660 So. 2d 32 (La. App. 4th Cir.), writ
denied, 664 So. 2d 443 (La.), writ denied, 664 So. 2d 444 (La.
1995), the court, without adverting to any of the Louisiana Supreme
Court decisions and other authorities discussing adjudicative
retroactivity, stated:
          Clemco correctly points out that in Gilboy v.
          American Tobacco Co., 582 So. 2d 1263 (La.
          1991), the supreme court opined that Halphen’s
          theories of recovery are substantive rights
          that cannot be retroactively revoked by the
          Act.    Thus, according to Clemco, just as
          Halphen’s theories of recovery cannot be
          denied to a plaintiff whose cause of action
          arose prior to the Act, neither can those
          theories be applied to cases where the cause
          of action arose prior to Halphen in 1986.
               We conclude that this is correct.
Id. at 53. The reasoning in Young is faulty at several points.
The Louisiana Supreme Court in Gilboy could not, and, correctly
read, did not purport to transform its prior decision in Halphen
into substantive law.    Gilboy merely held that the LPLA was a
substantive law enacted by the legislature that, under Civil Code
Article 6, applied prospectively only because it contained no
contrary legislative expression.        Halphen was a judicial
interpretation of the Civil Code, a substantive law enacted by the
legislature, and Halphen applies retroactively because the court in
Halphen did not say otherwise. Thus, it simply does not follow

                                    28
opinion, which was not determinative of the outcome in that case,

should be disregarded because of the other persuasive data that the

Louisiana Supreme Court would decide the matter in a different

fashion.    A federal court has a duty to determine state law as it

believes the State’s highest court would.                The decision of an

intermediate appellate court may guide, but it is not necessarily

controlling    upon,    a   federal   court    when    determining   what   the

applicable state law is.       FDIC v. Abraham, 137 F.3d 264, 268 (5th

Cir. 1998); Industrial Indem., 22 F.3d at 1355 n.18.                 Moreover,

“When a federal court of appeals is of the opinion, as we are in

this case, that the district court’s view of the applicable state

law is against the more cogent reasoning of the best and most

widespread authority, it must reverse the judgment of the lower

court.”     Stool v. J.C. Penney Co., 404 F.2d 562, 563 (5th Cir.

1968).

                   C. Background and Recent Developments
                    Of the United States Supreme Court’s
                           Retroactivity Doctrine

     Although Louisiana judges are called upon to think and act as

civil-law jurists when deciding cases under the Louisiana Civil

Code, at the same time they are judges in the Anglo-American

tradition who are more often engaged in the interpretation and

application of law derived from American state, federal, and other

Louisiana    law    sources   outside    the   ambit    of   the   Civil   Code.


that, because the LPLA is substantive legislation applying
prospectively only, Halphen cannot be a retroactively applicable
judicial   interpretation  of  previously   enacted   substantive
legislation. Louisiana law and jurisprudence are to the contrary.


                                        29
Consequently, the nature of the entire Louisiana judicial process

is also heavily influenced by common-law traditions, United States

Supreme Court decisions, and the laws and jurisprudence of other

states.    The Supreme Court of Louisiana, like courts of other

states, gives careful attention to the United States Supreme

Court’s    opinions       explaining      common-law     traditions       and

constitutional principles that influence the role of the judiciary

and the temporal effects of judicial decisions.              Accordingly, we

must take those opinions into account in our effort to ascertain

the   probable   course   of   future    developments   in    the   Louisiana

doctrine of retroactivity.

      The general principle that statutes operate prospectively and

judicial decisions apply retroactively had been followed by the

common law and the Supreme Court’s decisions “for near a thousand

years.”    Kuhn v. Fairmont Coal Co., 215 U.S. 349, 372 (1910)

(Holmes, J., dissenting); see Robinson v. Neil, 409 U.S. 505, 507

(1973); Rivers v. Roadway Express, Inc., 511 U.S. 298, 311-12

(1944).5   The Supreme Court, in Linkletter v. Walker, 381 U.S. 618

      5
      Justice Scalia, concurring in Harper v. Virginia Department
of Taxation, 509 U.S. 86, 107 (1993) (Scalia, J., concurring),
explained the traditional judicial role as follows:
          The conception of the judicial role that
          [Chief Justice John Marshall] possessed, and
          that was shared by succeeding generations of
          American judges until very recent times, took
          it to be “the province and duty of the
          judicial department to say what the law is,”
          Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177
          (1803) (emphasis added) -- not what the law
          shall be. That original and enduring American
          perception of the judicial role sprang not
          from the philosophy of Nietzsche but from the
          jurisprudence of Blackstone, which viewed

                                    30
(1965), however, developed a doctrine under which it could deny

retroactive   effect   to   a   newly   announced     rule   of   criminal

constitutional law.    According to Linkletter, a decision to limit

the new rule to prospective application could be based upon a

balancing of the purpose of the new rule, the reliance placed upon

the previous view of the law, and the effect on the administration

of justice of a retrospective application.          Id. at 636 (limiting

Mapp v. Ohio, 367 U.S. 643 (1961)).

     In the federal noncriminal law context, the Supreme Court


          retroactivity as an inherent characteristic of
          the judicial power, a power “not delegated to
          pronounce a new law, but to maintain and
          expound the old one.”              1 W. BLACKSTONE,
          COMMENTARIES 69 (1765).       Even when a “former
          determination is most evidently contrary to
          reason . . . [or] contrary to the divine law,”
          a judge overruling that decision would “not
          pretend to make a new law, but to vindicate
          the old one from misrepresentation.” Id. at
          69-70. “For if it be found that the former
          decision is manifestly absurd or unjust, it is
          declared, not that such a sentence was bad
          law, but that it was not law.”            Id. at 70
          (emphasis in original).           Fully retroactive
          decisionmaking was considered a principal
          distinction between the judicial and the
          legislative power: “[I]t is said that that
          which    distinguishes      a    judicial   from  a
          legislative act is, that the one is a
          determination of what the existing law is in
          relation to some existing thing already done
          or    happened,      while    the     other   is  a
          predetermination of what the law shall be for
          the regulation of all future cases.”             T.
          COOLEY, CONSTITUTIONAL LIMITATIONS 91. The critics
          of the traditional rule of full retroactivity
          were well aware that it was grounded in what
          one of them contemptuously called “another
          fiction known as the Separation of powers.”
          Kocourek, Retrospective Decisions and Stare
          Decisis and a Proposal, 17 A.B.A.J. 180, 181
          (1931).

                                   31
similarly recognized that a judicial decision could be applied

nonretroactively if it established a new principle of law, if such

a limitation would avoid substantial inequitable results, and if

retrospective application would not retard the purpose and effect

of the new rule.     Chevron Oil Co. v. Huson, 404 U.S. 97, 106-07

(1971).

     In Griffith v. Kentucky, 479 U.S. 314 (1987), the Supreme

Court overruled Linkletter and held that all newly declared rules

of law must be applied retroactively to all criminal cases pending

on direct review.   Id. at 322.    The Court based its decision on two

basic norms of constitutional adjudication, viz., first, that the

nature of judicial review strips a court of the quintessentially

legislative    prerogative   to   make   rules    of   law   retroactive   or

prospective within its discretion; and, second, that selective

application of new rules of law violates the principle of treating

similarly situated parties the same.             Id. at 323.6     Dictum in

Griffith, stating that “civil retroactivity . . . continue[d] to be

governed by the standard announced in Chevron Oil[,]” id. at 322

n.8, caused the Court to divide over its meaning in subsequent

cases.    In American Trucking Associations, Inc. v. Smith, 496 U.S.

167 (1990), Justice O’Connor, writing for a plurality of four

justices, explicitly refused to extend Griffith to civil cases, and

used the Chevron Oil test to limit retroactivity of the Court’s


     6
       In Teague v. Lane, 489 U.S. 288      (1989), a plurality of the
Court concluded that new constitutional     rules of criminal procedure
would not be applied retroactively in        habeas corpus proceedings
unless the rule fell within one of two      narrow exceptions.

                                    32
decision in an earlier case invalidating highway use taxes under

the Commerce Clause.    Id. at 179.         Four other justices rejected the

plurality’s approach to retroactivity as “anomalous” and refused to

hold that “the law applicable to a particular case is that law

which the parties believe in good faith to be applicable to the

case.”    Id. at 219 (Stevens, J., joined by Brennan, J., Marshall,

J., and Blackmun, J., dissenting).            Justice Scalia, concurring in

the judgment because he believed that the new rule of law was

incorrect,      explicitly        disagreed     with    Justice      O’Connor’s

retroactivity analysis, stating that “prospective decisionmaking is

incompatible with the judicial role, which is to say what the law

is, not to prescribe what it shall be.”             Id. at 201 (Scalia, J.,

concurring).

     In James B. Beam Distilling Co. v. Georgia, 501 U.S. 529

(1991), the Court failed to produce a unified opinion for the

Court, but a majority agreed that a rule of federal law, once

announced and applied to the parties to the controversy, must be

given full retroactive effect to all others not barred by res

judicata   or   statutes     of    limitation;    and   that   the   theory   of

selective prospectivity must be abandoned in civil cases.7

      7
        Justice Souter explained the methodology of retroactive,
selectively prospective, and purely prospective applications of
judicial decisions as follows:
          As a matter purely of judicial mechanics,
          there   are   three   ways    in   which  the
          choice-of-law problem may be resolved. First,
          a decision may be made fully retroactive,
          applying both to the parties before the court
          and to all others by and against whom claims
          may be pressed, consistent with res judicata
          and procedural barriers such as statutes of

                                       33
limitations. This practice is overwhelmingly
the norm, and is in keeping with the
traditional function of the courts to decide
cases before them based upon their best
current understanding of the law.       It also
reflects the declaratory theory of law,
according to which the courts are understood
only to find the law, not to make it. But in
some circumstances retroactive application may
prompt difficulties of a practical sort.
However much it comports with our received
notions of the judicial role, the practice has
been attacked for its failure to take account
of reliance on cases subsequently abandoned, a
fact   of    life  if  not    always   one   of
jurisprudential recognition.
     Second, there is the purely prospective
method of overruling, under which a new rule
is applied neither to the parties in the
law-making decision nor to those others
against or by whom it might be applied to
conduct or events occurring before that
decision. The case is decided under the old
law but becomes a vehicle for announcing the
new, effective with respect to all conduct
occurring after the date of that decision.
This Court has, albeit infrequently, resorted
to pure prospectivity, although in so doing it
has never been required to distinguish the
remedial from the choice-of-law aspect of its
decision. This approach claims justification
in its appreciation that "[t]he past cannot
always    be   erased  by   a    new   judicial
declaration," and that to apply the new rule
to parties who relied on the old would offend
basic notions of justice and fairness.      But
this equitable method has its own drawback:
it tends to relax the force of precedent, by
minimizing the costs of overruling, and
thereby allows the courts to act with a
freedom comparable to that of legislatures.
     Finally, a court may apply a new rule in
the case in which it is pronounced, then
return to the old one with respect to all
others   arising    on facts    predating   the
pronouncement. This method, which we may call
modified, or selective, prospectivity, enjoyed
its temporary ascendancy in the criminal law
during a period in which the Court formulated
new rules, prophylactic or otherwise, to

                      34
     Justice Souter, whose lead opinion garnered the most support,

reasoned that the equality principle of Griffith (that similarly

situated litigants should be treated the same) carries comparable

or greater strength in the civil context, requiring that: (1) the

possibility of selective prospectivity be rejected in civil cases;



          insure protection of the rights of the
          accused.    On the one hand, full retroactive
          application    of    holdings   such   as   those
          announced in Miranda v. Arizona, Escobedo v.
          Illinois, and Katz v. United States, would
          have "seriously disrupt[ed] the administration
          of our criminal laws[,] . . . requir[ing] the
          retrial or release of numerous prisoners found
          guilty by trustworthy evidence in conformity
          with   previously     announced   constitutional
          standards."     On the other hand, retroactive
          application could hardly have been denied the
          litigant in the law-changing decision itself.
          A criminal defendant usually seeks one thing
          only   on    appeal,    the   reversal   of   his
          conviction; future application would provide
          little in the way of solace. In this context,
          without retroactivity at least to the first
          successful litigant, the incentive to seek
          review    would    be   diluted   if   not   lost
          altogether.
               But selective prospectivity also breaches
          the principle that litigants in similar
          situations should be treated the same, a
          fundamental component of stare decisis and the
          rule of law generally. For this reason, we
          abandoned    the    possibility    of   selective
          prospectivity in the criminal context in
          Griffith v. Kentucky, even where the new rule
          constituted a "clear break" with previous law,
          in favor of completely retroactive application
          of all decisions to cases pending on direct
          review.     Though Griffith was held not to
          dispose of the matter of civil retroactivity,
          selective prospectivity appears never to have
          been endorsed in the civil context. This case
          presents the issue.
Id. at 535-38 (internal citations omitted).

                                 35
and (2) when a court has applied a new rule of law to the litigants

in   the   case     before    it,   that    application   necessarily   is   a

retroactive application of the rule to a cause of action based on

events predating its adjudication, and therefore must be applied

with equality to all similarly situated litigants, except as to

rights acquired by them through the operation of res judicata or

statutes of limitation, due to the need for finality and an end to

litigation.    Three justices dissented, defending the practices of

both pure and selective prospective application of decisions and

the continued viability of the Chevron Oil test.                  Id. at 549

(O’Connor,    J.,    joined    by   Rehnquist,    C.J.,   and   Kennedy,   J.,

dissenting).

      In Harper v. Virginia Department of Taxation, 509 U.S. 86

(1993), Justice Thomas authored a five-member majority opinion

expressly adopting a rule that “fairly reflects the position of a

majority of Justices in Beam”:

            When this Court applies a rule of federal law to
            the parties before it, that rule is the controlling
            interpretation of federal law and must be given
            full retroactive effect in all cases still open on
            direct review and as to all events, regardless of
            whether such events predate or postdate our
            announcement of the rule.       This rule extends
            Griffith’s ban against “selective application of
            new rules.”     Mindful of the “basic norms of
            constitutional adjudication” that animated our view
            of retroactivity in the criminal context, we now
            prohibit the erection of selective temporal
            barriers to the application of federal law in
            noncriminal cases.    In both civil and criminal
            cases, we can scarcely permit “the substantive law
            [to] shift and spring” according to the “particular
            equities of [individual parties’] claims” of actual
            reliance on an old rule and of harm from a
            retroactive application of the new rule.        Our
            approach to retroactivity heeds the admonition that

                                       36
            “[t]he Court has no more constitutional authority
            in civil cases than in criminal cases to disregard
            current law or to treat similarly situated
            litigants differently.”

Id. at 97 (internal citations omitted).

     Justice O’Connor, joined by the Chief Justice, dissented from

the Court’s rejection of the use of prospective retroactivity under

the Chevron Oil test, and expressed concern that the forgoing

language and another statement in Justice Thomas’s majority opinion

“intimates that pure prospectivity may be prohibited as well.” Id.

at 115 (O’Connor, J., joined by Rehnquist, C.J., dissenting).

Justices Kennedy and White, concurred in part, disagreeing with

that aspect of the majority opinion and expressing their continuing

view that pure prospectivity will be appropriate sometimes in the

civil context. Id. at 110 (Kennedy, J., joined by White, J.,

concurring in part and concurring in the judgment).

     The Supreme Court in Reynoldsville Casket Co. v. Hyde, 514

U.S. 749 (1995), held that under Harper its decision in Bendix

Autolite Corp. v. Midwesco Enterprises, Inc., 486 U.S. 888 (1988),

must be applied retroactively to plaintiff Hyde’s lawsuit filed in

1987 arising out of a 1984 vehicular accident, and that the

Supremacy    Clause   of   the   Federal   Constitution   bars   Ohio   from

applying its tolling statute to pre-Bendix torts and thus requires

reversal of the Ohio Supreme Court’s refusal to apply Bendix

retroactively.    In Bendix, the Court had held unconstitutional (as

impermissibly burdening interstate commerce) an Ohio “tolling”

provision that, in effect, gave Ohio tort plaintiffs unlimited time

to   sue    out-of-state    (but    not    in-state)   defendants.      The

                                     37
Reynoldsville Casket Co. Court accepted Hyde’s acknowledgment that

Harper:

               held that, when (1) the Court decides a case
               and applies the (new) legal rule of that case
               to the parties before it, then (2) it and
               other courts must treat that same (new) legal
               rule as “retroactive,” applying it, for
               example, to all pending cases, whether or not
               those cases involve predecision events.

Hyde, 514 U.S. at 752. Also, the court accepted Hyde’s concessions

that, as “‘a result of Harper, there is no question that Bendix

retroactively invalidated’ the tolling provision that makes her

suit timely[,]” id., and that Harper overruled Chevron Oil insofar

as     the     case    (selectively)       permitted     the     prospective-only

application of a new rule of law.              Id.    Nevertheless, Hyde argued

that    the    Ohio   Supreme    Court   holding      that    Bendix    may   not   be

retroactively applied to bar claims in state courts which had

accrued prior to the Bendix decision should be viewed simply as an

effort to fashion a remedy that takes into consideration her

reliance       on     pre-Bendix    law,      under     the     authority      of    a

recharacterization of Chevron Oil as a case in which the Court

simply       took   reliance    interests     into    account   in     tailoring    an

appropriate remedy for a violation of federal law.                        The Court

rejected Hyde’s argument because she “offers no more than simple

reliance (of the sort at issue in Chevron Oil) as a basis for

creating an exception to Harper’s rule of retroactivity -- in other

words, she claims that, for no special reason, Harper does not

apply.”       Id. at 759.   In so doing, the Court distinguished several

examples upon which Hyde relied, as instances in which courts


                                         38
applying “retroactively” a new rule of law to pending cases, for

well-established reasons, found that the new rule did not determine

the outcome of the case.

           Thus, a court may find (1) an alternative way
           of curing the constitutional violation, or (2)
           a previously existing, independent legal basis
           (having nothing to do with retroactivity) for
           denying relief, or (3) as in the law of
           qualified immunity, a well-established general
           legal rule that trumps the new rule of law,
           which general rule reflects both reliance
           interests   and   other   significant   policy
           justifications, or (4) a principle of law,
           such as that of “finality” present in the
           Teague context, that limits the principle of
           retroactivity itself. But, this case [where a
           concern about reliance alone has led the Ohio
           court to create what amounts to and ad hoc
           exemption from retroactivity [id. at 758]]
           involves no such instance[.]

Id.

      Evidently, the Supreme Court has concluded that the Linkletter

and Chevron Oil departures from traditional retroactivity doctrine

proved   unsatisfactory.       The    Court’s     most    recent   decisions

substantially reject those departures and return to the general

rule of adjudicative retroactivity, leaving only an indistinct

possibility    of   the   application     of   pure   prospectivity   in   an

extremely unusual and unforeseeable case.                See Jill E. Fisch,

Retroactivity and Legal Change: An Equilibrium Approach, 110 HARV.

L. REV. 1056, 1059 (1997).

              D. Halphen Is Circuit Diversity Precedent

      “Ordinarily, a state court’s answer to a certified question is

final and binding upon the parties between whom the issue arose.”

Sifers v. General Marine Catering Co., 892 F.2d 386, 391 & n.22


                                     39
(5th Cir. 1990) (citing Hopkins v. Lockheed Aircraft Corp., 394

F.2d 656, 657 (5th Cir. 1968); National Educ. Ass’n. v. Lee County

Bd. of Pub. Instruction, 467 F.2d 447, 450 n.6 (5th Cir. 1972);

Redgrave v. Boston Symphony Orchestra, 855 F.2d 888, 903 (1st Cir.

1988); 17A CHARLES ALAN WRIGHT   ET AL.,   FEDERAL PRACTICE   AND   PROCEDURE § 4248,

at 179 (2d ed. 1988)).           Such an answer, therefore, generally

becomes “the law of the case,” Sifers, 892 F.2d at 391 & n.23

(citing Boyd v. Bowman, 455 F.2d 927, 928 (5th Cir. 1972) (per

curiam); Tarr v. Manchester Ins. Corp., 544 F.2d 14, 14-15 (1st

Cir. 1976) (per curiam)); and, further, because we consider the

state court’s answer to be binding in the proceedings between the

parties to the certified case, that answer becomes the law of this

circuit and binding upon parties who were not parties to the

certified case.    Sifers, 892 F.2d at 391-92.

     In Halphen v. Johns-Manville Sales Corp., 788 F.2d 274 (5th

Cir. 1986), this court received the Louisiana Supreme Court’s

answer to a certified question with the state court’s opinion,

Halphen v. Johns-Manville Sales Corp., 484 So. 2d 110 (La. 1986),

and applied that interpretation of Louisiana law by the state

supreme court to the parties and the case before this court.

Subsequently, this court has applied Halphen retroactively (and

prospectively) to cases arising both before and after the state

supreme court’s decision.8       Thus, Halphen is the controlling law of

     8
      See e.g., Robertson v. Superior PMI, Inc., 791 F.2d 402 (5th
Cir. 1986); Vickers v. Chiles Drilling Co., 822 F.2d 535 (5th Cir.
1987); Houston Oil & Minerals Corp. v. American Int’l Tool Co., 827
F.2d 1049 (5th Cir. 1987), cert. denied, 484 U.S. 1067 (1988);
Richard v. Firestone Tire & Rubber Co., 853 F.2d 1258 (5th Cir.

                                      40
this circuit in Louisiana diversity cases, and must be applied to

the present case because it arose and was pending when Halphen was

decided.

                              IV. CONCLUSION

      For the reasons assigned, we conclude that the Louisiana

Supreme Court will continue to apply its general rule under which

a judicial decision must be given retroactive effect unless the

rendering court specifies otherwise or such application is barred

by prescription or res judicata.            Under that rule, which is the

generally accepted norm in all common and civil law jurisdictions,

the   Halphen   decision,    which    was    silent   as   to   its   temporal

application,    must   be   applied   retroactively,       consistently   with

prescription and res judicata provisions. Further, because Halphen

was applied to the parties in that and subsequent cases, it is

circuit precedent and must be applied to the present case.

      The judgment and ruling of the district court appealed from by

the plaintiffs-appellants are REVERSED and the case is REMANDED to

the district court for further proceedings consistent with this

opinion.



REVERSED and REMANDED




1988), cert. denied, 488 U.S. 1042 (1989); Valenti v. Surgiteck-
Flash Med. Eng’g Corp., 875 F.2d 466 (5th Cir. 1989); Pennington v.
Vistron Corp., 876 F.2d 414 (5th Cir. 1989); Davis v. Commercial
Union Ins. Co., 892 F.2d 378 (5th Cir. 1990); Klem v. E.I. DuPont
De Nemours & Co., 19 F.3d 997 (5th Cir. 1994); Reeves v. AcroMed
Corp., 44 F.3d 300 (5th Cir.), cert. denied, 515 U.S. 1104 (1995);
Reeves v. AcroMed Corp., 103 F.3d 442 (5th Cir. 1997).

                                      41
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