dissenting.
T1 The court vacates today the Court of Civil Appeals' opinion, affirms judgment on jury verdict for the insureds, but snuffs out the life of its common law declared in Bro-shier1 and invalidates the counsel fee awarded in this cause. I dissent from the death warrant for Brashier and from the retrospective effect given its execution. Bra-shier's retrospective demise violates constitutionally anchored restrictions on the exercise of judicial power.2 While there are other points of today's pronouncement to which I do not accede, my message of dissent targets solely Part VL.
THE COURTS CONDEMNATION OF BRASHIER AS DISHARMONIOUS WITH CHRISTIAN RESTS ON A FLAWED ANALYSIS
12 Christian v. American Assur. Co.3 settled but one issue. It adopted the California view that a cause of action in tort will lie against an insurer for its bad-faith refusal to settle an insured's claim.4 The actionable quality of the described inswrer's conduct is the sole Christian's ratio decidendi.5
T3 The insured in Christian pressed for an attorney's fee as a common-law element of recovery.6 There, this court had *184two opportunities to decide whether an attorney's fee is recoverable as an item of damage or as a cost-shifting allowance 7 - first on the appeal's submission and then again on rehearing8 The court instead left the issue unresolved until Brashier. - Christion merely suggested that the trial judge should on remand explore the possibility of counsel-fee allowance as costs.9 Its statement on the subject is enigmatic at best. If does not settle the issue. Brashier initially declares Oklahoma's common law on counsel-fee recovery in a Christian claim.10
A.
Christian's Suggestion For Postremand Exploration of Attorney's Fee Recovery Does Not Make Christian A Precedent Ignored By Brashier
T 4 Christian's invitation that the nisi prius court explore on remand for an applicable exception to the American Rule11 was not necessary to the declared actionability of the insured's claim. Because the court's statement in Christian did not decide the tendered counsel-fee issue, it can neither be deemed a part of the court's ratio decidendi 12 nor carry any precedential force.13 The *185Christian hint about postremand inquiry is at most obiter dictum.14 As one textwriter observes, when a court "wishes to avoid the hard labor of law creation, it may take the easy route of applying a dictum as if it were an authoritative, governing rule.15
B.
Brashier's Teachings
15 Brashier resolved the issue tendered (but left undecided) in Christian by sanctioning counsel-fee recovery as an element of plaintiff's damage in a UM (uninsured motorist) coverage bad-faith dispute. The court observed that "Christian, which shaped our common law of [bad-faith] tort,16 made counsel fees an element of the insured's damage recovery for insurer's bad-faith refusal to pay the claim.17 Brashier's quoted reference was in recognition of Christian's unequivocal reliance on California jurisprudence as a model for the new Oklahoma claim in tort.18 Brashier is entirely consistent with and obediently follows the California cases on the subject. According to California caselaw, when a bad-faith breach occurs, the insurer is "lable for any damages which are the proximate result of that breach.19 California's Brandt v. Superior Court20 clearly teaches that counsel fee is an element of insured's common-law damages in an action for vindication of an insurer's bad-faith refusal to settle. There, the court unequivocally held:
When an insurer's tortious conduct reasonably compels the insured to retain an attorney to obtain the benefits due under a policy, it follows that the insurer should be liable in a tort action for that expense. The attorney's fees are an economic loss - damages - proximately caused by the tort These fees must be distinguished from recovery of attorney's fees qua attorney's fees, such as those attributable to the bringing of the bad faith action itself.21
(emphasis 'added).
16 Brasher has stayed true to the course charted by California jurisprudence and *186hence followed the Christian's ratio deciden-di. That state's teachings, which authorize an attorney's fee in a claim for bad-faith refusal to settle, are based on the notion that an attorney's fee is a common-law element of loss to the plaintiff and should hence be part of the plaintiff's recoverable damages. The Brashier dissent by a justice who authored Christian was no more than that justice's untimely personal disapprobation of the later jurisprudential development.22 Today's opinion, which appears to begin and end its analysis with Christion, utterly ignores Christian's genesis in California's common-law - jurisprudence and the subsequent growth of that state's common law in abso-tute consistency with the teachings of Bra-shier.
T7 Brashier should not be condemned for failure to follow Christian. The latter did not resolve the-there tendered issue of whether an attorney's fee is recoverable as damages. Christian's theory, patterned after California's jurisprudence, logically led to Brashier's adoption of the notion that an attorney's fee element of the plaintiffs demand may be submitted to the triers as an issue of damages on the merits of the insured's claim. There is hence absolutely no jurisprudential warrant for condemning today Brashier's "departure" from Christian.
II
THE COURTS CONDEMNATION OF BRASHIER AS VIOLATIVE OF THE AMERICAN RULE RESTS ON ITS DISTORTED VIEW OF THE RULE
{8 The quintessence of the American Rule, expressed in Alyeska Pipeline Service Co. v. Wilderness Society,23 is that, in the absence of contract or statute, the victor cannot recover against the vanquished party a post-judgment allowance of incurred legal fees.24 The American Rule strikes at the English concept of shifting terminated litigation's costs from the victorious party-bearer to that party's vanquished opponent.25 It meither deals with mor affects recovery of counsel fee as an element of damage to the plaintiff - an issue on the merits of the aggrieved party's claim. Rather, the American Rule targets postjudgment issues, not issues on the merits - i.e., those which affect one or more elements of the claim for relief (or of the defense).26
19 Brashier does not authorize post-judgment assessment of costs against the vanquished party. It merely views the expenses of an attorney's fee as a necessary element of damage in the process of vindicating the insurer's breach of an implied-in-law covenant to settle the insured's claim in good *187faith.27 The inclusion of that harm among the damage elements rests on the notion that the tort of bad-faith refusal to settle proximately produces litigation expenses to the insured's detriment. That litigation expense is a legitimate and immediate consequence of the actor's failure to deal fairly. A legitimate tort element of damage is that which is proximately caused by the tortfeasor's act.28 The Brashier-authorized recovery for legal expense in a Christian tort is confined to that which grows out of bad-faith refusal to settle; it is not to be granted for winning the lawsuit.
{ 10 Today's flawed result stems from the court's crude analysis which in turn leads to its conclusion that in no UM/UIM tort litigation a counsel-fee may be recovered without violating the American Rule. In light of Alyeska's teachings, Brashier reaches a result that stays clear of running on a collision course with the American Rule.
Today's Pronouncement Singles Out One Subclass of Tort For Uneven Application of the American Rule
11 The court's approach to its jurisprudential change creates caselaw that is not evenhanded. Its pronouncement violates the law's symmetry because Oklahoma recognizes tort cases - 4.e., malicious prosecution 29 - in which litigation expense constitutes an element of recoverable damage.
III
THE PLAINTIFFS ARE WITHIN THE RANGE OF PROTECTIONS AFFORDED BY ART. 5 §§ 52, 54, OKL.CONST.
A.
The Mandate of Art. 5 §§ 52, 54, Okl.Const.
112 Substantive rights may not be changed for application to a claim or defense in a pending judicial proceeding. Art. 5 § 52, Okl.Const.30 A proceeding begun under applicable norms of substantive statutory law (or common law) then in force remains unaffected by - after-enacted - legislative changes (or those effected through the process of judicature). Art. 5 § 54, Okl.Const.31 The interests protected under these constitutional provisions are deemed "accrued rights." An accrued right within the meaning of § 54 is a "matured cause of action or legal authority to demand redress.32 Once it has been created and has become absolute, *188it is protected from legislative or judicial imvasion by Art. 5, §§ 52 and 54, Okl. Const.33 Although these sections' commands are directed to the legislature, they are no less binding on the courts. Our own jurisprudence, no less than the legislature's enactments, must faithfully conform to the fundamental law's mandate. The judiciary is without a fundamental-law license to destroy accrued rights.34 Like the legislature, the courts must respect the protection that surrounds the interests shielded by the Constitution. No judicially sponsored common-law developments can lay claim to immunity from constitutional restraints on lawmaking activity that destroys accrued rights.
B.
The Teachings of Thomas v. Cumberland Operating Co.35
113 Thomas teaches that a statutory increase in the quantum of damage recoverable in contract fashions "a new element of damages as distinguished from [creating] a new remedy...." Legislative increases (or decreases) in the common-law measure of damage are changes in substantive rights which should be applied prospectively only.36 Claims that have accrued before the law is changed are protected from legislative or judicial invasion.37
C.
Brashier Had Full Retrospective Sweep
1 14 Brashier, as the court concedes, is the ruling common-law declaration on the issue of attorney's fee as an element of damages in an action to recover upon a Christian tort. It is the governing common law for both parties - the Christian plaintiff in this cause as well as the defending insurer.38 Under the Blackstonian notion of "declaratory theory,39 the common law exists independently *189of judicial decisions and a court's function is to "discover" this absolute law. Once it has been found, the court's pronouncement of the declared common law has a fully retrospective force 40 unless its opinion explicitly states otherwigse.41 - There was no pre-Brashier law (statute or common law) which proscribed a Christian plaintiff from recovering an attorney's fee expense as an element of recovery in a tort for bad-faith refusal to settle. Bra-shier did not change pre-existing common law. Rather, it "discovered" the law ignored by Christian in its decisional and rehearing stages.
{15 Because Brashier applied retrospectively to the date this cause of action arose and was the law that governed tort liability for UM coverage at the time the claim was reached for trial, the insured, under the teachings of Thomas, is clearly entitled to the application of that pre-existing norm of substantive law. Today's retrospective death warrant for Brashier violates the constitutionally anchored restrictions on the exercise of lawmaking activity by both legislative and judicial organs of government.
IV
SUMMARY
116 Brashier is consistent with Christian's ratio decidendi and hence with its precedential force. It is also in harmony with the Christian tort's model in California's common-law jurisprudence. Recovery of attorney's fee as an element of damages is a legitimate consequence of the insurer's harm-dealing process. -It is an economic detriment to the insured proximately occasioned by the insurer's refusal to enter into good-faith settlement.
T17 The court stretches the American Rule far beyond the outer limits of its common-law boundary and, without any warrant, elevates that norm of unwritten law to a constitutional fetish.42 Today's retrospective application of the court's departure from Brashier violates Art. 5, §§ 52 and 54, OK. Const. The common law is not exempt from constitutional testing. Like legislation, it must pass the fundamental law's muster.43 *190Inasmuch as retrospective effect that is given today's pronouncement destroys rights protected by §§ 52 and 54, I would hold that the change in substantive norms of the state's common law cannot be applied to claims "accrued" and "proceedings begun" before the date mandate in this case will have issued.
118 Aside from distorting the American Rule, today's pronouncement magically transmogrifies the lifeless ashes of one justice's post-Christian dissent from his mere afterthought into a viable core ingredient of Christian's ratio decidendi. A remarkable display of judicial prestidigitation!
119 An Ode to the Short Life of Brashier: May it Rest in Peace!
T 20 Changed minds - not flawed jurisprudence - deal Brashier the lethal blow that ends its life today. The rejected authority's doctrinal soundness will not save it from extinction. The core message of Brashier - plainly apparent but conveniently ignored until now - lacks appeal to those legal minds that remain stubbornly averse to letting lay triers set the value of lawyer services. Bro-shier's demise is driven by this passion. Because I do not share it, I would remain faithful to stare decisis and remand this cause for jury assessment of the attorney's fee that one may recover as an element of legal damages in an action for an insurer's Christian tort.44 The solution I propose is vastly superior to that chosen by the court. The latter sends the suit back for an exploration of uncharted seas, filled with waters known to be inhospitable to the court-sponsored fishing expedition. Handed to the vie-tor by today's disposition is a postremand license to search for some statute which would authorize one who prevailed in tort to seek a postjudgment counsel-fee award against the vanquished enemy. Invited to come along for the fantasy ride is the nisi prius judge; but in today's zigzag jurisprudence no roadmap is provided to a safe harbor for either party - the insured or the insurer. Happy hunting, ladies and gentlemen!
. Brashier v. Farmers Ins. Co., Inc., 1996 OK 86, 925 P.2d 20.
. Aside from the constitutional infirmity in the court's retrospective abandonment of Brashier, supra note 1, today's overruling of that pronouncement is both unforeshadowed and sua sponte. Unforeshadowed, because the court had given no earlier indication of its disenchantment; sua sponte, because the insurer-appellant neither argued for Brashier's decapitation nor even pressed that its authority be revisited. Unfore-shadowed changes in jurisprudence have met with the U.S. Supreme Court's disapprobation. See Chevron Oil Co. v. Huson, 404 U.S. 97, 106, 92 S.Ct. 349, 355, 30 L.Ed.2d 296 (1971). There, the Court isolated three factors for ascertaining when retroactivity of a new pronouncement could be restricted. The threshold factor is that the decision must establish a new principle of law, whether by overruling clear past precedent on which litigants may have relied, or on an issue of first impression whose decision is not clearly foreshadowed. Sua sponte changes in de-cisional law, when effected without giving the parties an opportunity to submit advocacy instruments, have met with widespread condemnation in academic literature. Martin H. Redish, Carter G. Phillips, Erie and the Rules of Decision Act: In Search of the Appropriate Dilemma, 91 Harv.L.Rev. 356, 357 (1977). See in this connection the dissenting view of a state appellate court judge in State v. Worrall, 293 Mont. 439, 976 P.2d 968, 979-84 (1999)(Gray, J., concurring in part and dissenting in part). In the current U.S. Supreme Court practice, issues not urged in the petition for certiorari will not be considered even if they were later briefed and argued. South Central Bell Tele. Co. v. Alabama, 526 U.S. 160, 169-71, 119 S.Ct 1180, 1186, 143 L.Ed.2d 258 (1999); Roberts v. Galen of Virginia, Inc., 525 U.S. 249, 251-54, 119 S.Ct. 685, 686-87, 142 L.Ed.2d 648 (1999). The litigants in this cause had not been afforded the opportunity to brief Brashier's continued vitality.
. 1977 OK 141, 577 P.2d 899, 901.
. For the conceptual underpinnings of the insurer's bad-faith liability, Christian drew heavily, if not exclusively, from California jurisprudence. See Gruenberg v. Aetna Insurance Co., 9 Cal.3d 566, 510 P.2d 1032, 1036 (1973), cited as the anchor of the Christian pronouncement. Chris tian, supra note 3 at 904.
. For the definition of ratio decidendi, see infra note 12. The new tort's elements of recovery were neither discussed nor settled in Christian. They were saved for explication by later-developed jurisprudence.
. The appellate briefs in Christian reveal that the insured sought recovery of attorney's fee as an element of damages. The insured/plaintiff states in his (21 December 1977) brief in chief (at page 3) that the insurer's refusal to pay the benefits "was a violation of [its] duty to deal fairly and in good faith" thereby causing him "great expense for additional medical expense, court costs, and attorney's fees." The insurer's (9 January 1976) answer and (25 August 1977) rehearing briefs state that plaintiff claims as an item of damage ... the attorney fee expended in [the] Garvin County case." (emphasis added).
. The court in Christian could have either rejfect-ed or adopted the sought counsel-fee recovery by distinguishing the allowance of an attorney's fee as an element of damages from its award as costs. This distinction has been known to Oklahoma jurisprudence since at least 1917. In United States Supply Co. v. Gillespie, 1917 OK 249, 166 P. 139, 140, the court notes that because a counsel fee was awarded for the "prosecution of the present action" (for unlawful conversion of property), it was not additionally recoverable as "compensation for money properly expended in pursuit of the property." The court observes that the statute in contest there did not "contemplate recovery of attorney's fees as compensatory damages, or as costs." (emphasis supplied). See also Oliver's Sports Center, Inc. v. Nat'l Standard Ins. Co., 1980 OK 120, 615 P.2d 291, 296( Opala, J. concurring)(whenever in a common-law action triable to a jury counsel fee is sought as damages, the quantum to be allowed is a question of fact for the trier) (citing Kansas jurisprudence, Missouri Pac. Ry. Co. v. Merrill, 40 Kan. 404, 19 P. 793 (1888)).
. The insurer's (27 August 1977) rehearing brief argues at page 28 that the court has "erroneously held that plaintiff's attorney fee expended in Gar-vin County ... may be recovered in the instant case." - Another rehearing brief - that of an ami-cus curiae - successfully pressed for clarification of some other aspects of the opinion.
. The sole text in Christian, supra note 3 at 906, that addresses itself directly to the insured's attorney's fee quest, is:
Appellant seeks recovery of the attorney fees he was forced to expend in the prosecution of his Garvin County action. Ordinarily, attorney fees may not be recovered in the absence of an agreement or statutory authority. Globe & Republic Ins. Co. v. Independent Trucking Co., Okl., 387 P.2d 644 (1963). One exception to this rule is that where a litigant has acted in bad faith, wantonly or for an oppressive reason, the trial court, in exercise of its equitable power, may award attorney fees. City National Bank & Trust Co. v. Owens, Okl., 565 P.2d 4 (1977). Whether appellant comes within the exception of City National Bank, supra, will be a question for the trial court upon proper presentation of pleadings and proof.
. For a discussion of the "declaratory theory" of common-law jurisprudence, see infra note 39 and the accompanying text.
. The Court's opinion in Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 247, 95 S.Ct. 1612, 1616, 44 LEd.2d 141, 153-159 (1975), describes the American Rule in these words:
In the United States, the prevailing litigant is ordinarily not entitled to collect a reasonable attorneys' fee from the loser. We are asked to fashion a far-reaching exception to this 'American Rule'; but having considered its origin and development, we are convinced that it would be inappropriate for the Judiciary, without legislative guidance, to reallocate the burdens of litigation....
In contrast to the American Rule, the English Rule calls for an across-the-board postdecisional cost- and counsel-fee shifting in favor of the victorious party. Alyeska, supra, 421 U.S. at 247, 95 S.Ct. at 1616.
. A decision on an issue that is not before the court, much like arcane judicial observations on an issue twice-pressed but left unsettled by the court's opinion, cannot be paraded under the banner of ratio decidendi. See Burch v. Allstate Insurance Co., 1998 OK 129, ¶ 12, 977 P.2d 1057, 1062-63 (where the court refused to recognize as ratio decidendi a gratuitous comment in an earlier opinion on an issue that was not before the deciding court). In both of the described instances missing is the critical component of a binding pronouncement. That sine qua non component is supplied in the common-law tradition by a judicially settled issue of law that the case at bar presented for required resolution. "[The only part of a previous case which is binding is the ratio decidendi (reason for deciding)." Rupert Cross, Precepent In EncuisH Law 33, 34, 35, 37-38, 61-62,77 (1961).
. See Cohens v. Virginia, 19 U.S. (6 Wheat) 264, 399, 5 L.Ed. 257 (1821), for Chief Justice Marshall's admonition about the weakness of dicta produced by inadequate efforts in its formulation:
*185"It is a maxim not to be disregarded that general expression, in every opinion, are to be taken in connection with the case in which those expressions are used.... The reason of this maxim is obvious. The question actually before the court is investigated with care, and considered in its full extent. Other principles which may serve to illustrate it ... [are] seldom completely investigated."
. In THs American Common Law Meraop [1997] § 2.18 at page 19, Professor Richard B. Cappalli, describes the nonbinding nature of dicta:
First year texts describe dicta as comprising a legal proposition stated in an opinion but involving facts not before the court; such pronouncements have only "persuasive force according to an imprecise scale of weightiness. Because the precedent-issuing court has stepped beyond the bounds of its authority when it speaks law not essential to resolving the parties' dispute, its successor courts are free to dismiss such talk as nonbinding. This implies that some other talk within the opinion is binding, but we already know that all verbiage in the precedent can be freely ignored by the precedent's users." (emphasis in text; citations omitted).
. Cappalli, supra note 14, § 3.05(g) at 26.
. By statutory mandate this court is authorized to craft the norms of common law. 12 0.$.1991 § 2.
. Brashier, supra note 1 at 24.
. See supra note 4.
. Neal v. Farmers Ins. Exchange, 21 Cal.3d 910, 148 Cal.Rptr. 389, 582 P.2d 980, 988 (1978).
. 210 Cal.Rptr. 211, 37 Cal.3d 813, 693 P.2d 796, 798 (Cal.1985). See also Helfand v. National Union Fire Ins. Co. of Pittsburgh, Pa., 10 Cal.App.4th 869, 907, 13 Cal.Rptr.2d 295, 317 (1992); White v. Western Title Ins. Co., 221 Cal.Rptr. 509, 520, 40 Cal.3d 870, 890, 710 P.2d 309, 320 (1986); Filasky v. Preferred Risk Mut. Ins. Co., 152 Ariz. 591, 734 P.2d 76, 82-83 (1987) (the court affirmed a jury award of compensatory damages for emotional distress and attorney's fee caused by insurer's bad faith, holding that "Idlamages for pain, humiliation, or inconvenience, as well as pecuniary losses for expenses such as attorney's fees, trigger an invasion of protected property rights" (emphasis supplied)); Motorists Mut. Ins. Co. v. Brandenburg, 72 Ohio St.3d 157, 648 NE2d 488, 489 (1995) ("an insured may be entitled to attorney fees when an insurer wrongfully refuses to defend an insured in a negligence action"); DeChant v. Monarch Life Ins. Co., 200.Wis.2d 559, 547 N.W.2d 592, 599 (1996) ("attorney's fees ... are recoverable by a prevailing party in a first-party bad faith action as ... compensatory damages resulting from the insurer's bad faith").
. Brandt, supra note 20 at 798 (citations omitted).
. See Brashier, supra note 1 at 27-28 (Simms, J., concurring in part, dissenting in part).
. Alyeska, supra note 11, 421 U.S. at 247, 95 S.Ct. at 1621-1622, 1627 (the Court explains the historical antecedents of the American Rule). Since Arcambel v. Wiseman, 3 U.S. 306, 3 Dall. 306, 1 L.Ed. 613 (1796) the Court has recognized that, unless authorized by statute or contract, "'the prevailing litigant is ordinarily not entitled to collect a reasonable attorneys' fee from the loser." Alyeska, 421 U.S. at 247, 95 S.Ct. at 1616. See Nussbaum, Attorney's Fees in Public Interest Litigation, 48 N.Y.U.L.Rev. 301, 312-13 (1973).
. Alyeska, supra note 11, 421 U.S. at 257, 95 S.Ct. 1612. There, the Court reaffirmed its commitment to certain narrowly-defined common-law exceptions to the rule. Those recognized exceptions are: (1) when the litigant preserves or recovers a fund for the benefit of others; (2) when a losing party acts in bad faith, vexatiously, wantonly, or for oppressive reasons ; or (3) when a defendant wilfully disobeys a court order. Alyeska supra note 11, 421 U.S. at 247-54, 95 S.Ct. at 1616-20. See also Moses v. Hoebel, 1982 OK 26, 646 P.2d 601, 603.
. Alyeska, supra note 11, 421 U.S. at 247-54, 95 S.Ct. at 1616-20. The English practice of awarding fees dates for some actions to the time anterior to the Statute of Gloucester in 1275. Charles T. McCormick, Counsel Fees and Other Expenses of Litigation as an Element of Damages, 15 Minn. L.Rev. 619, 619 (1931).
. What is on or dehors the merits depends on whether the issue at hand affects one or more elements of the claim for relief or any elements of the defense that stand interposed against the claim. Hadnot v. Shaw, 1992 OK 21, 826 P.2d 978, 985 n. 25. The word "merits" has a well-defined meaning in law. See, eg., Shamblin v. Beasley, 1998 OK. 88, 967 P.2d 1200, 1206; Ellison v. Ellison, 1996 OK 64, ¶ 5, 919 P.2d 1, 2; Pierson v. Canupp, 1988 OK 47, 754 P.2d 548, 552 n. 8; Pryse Monument Company v. District Court of Kay County, 1979 OK 71, 595 P.2d 435, 437-38.
. Brashier, supra note 1 at 24.
. See in this connection the court's rationale in Security State Bank of Comanche v. W.R. Johnston & Co., 1951 OK 40, 228 P.2d 169, 173, for making an attorney's fee expense an element of damages in a malicious prosecution case. Quoting with approval from (McGaw v. Acker, etc., Co., 111 Md. 153, 73 A. 731, 734), the court stated:
[WJhere the wrongful acts of the defendant have involved the plaintiff in litigation with others, or placed him in such relations with others as make it necessary to incur expense to protect his interest, such costs and expense should be treated as legal consequences of the original wrongful act.
(emphasis added).
. See Security State Bank, supra note 28 at 173; (First Nat. Bank of Taloga v. Salisbury, 1930 OK 10, 292 P. 1113); Hertzel v. Weber, 1926 OK 318, 246 P. 839, 841.
. - The terms of Art. 5, § 52, Okl.Const. are:
The Legislature shall have no power to revive any right or remedy which may have become barred by lapse of time, or by any statute of this State. After suit has been commenced on any cause of action, the Legislature shall have no power to take away such cause of action, or destroy any existing defense to such suit.
{emphasis added).
. The terms of Art. 5 § 54, OkL Const., are:
The repeal of a statute shall not revive a statute previously repealed by such statute, nor shall such repeal affect any accrued right, or penalty incurred, or proceedings begun by virtue of such repealed statute.
{emphasis added).
See First Nat. Bank of Pauls Valley v. Crudup, 1982 OK 132, 656 P.2d 914, 916-917. There, the court dealt with an enactment that operated to abridge a limitation period governing foreclosure of certain mechanic's or materialmen's liens. A lien statement timely filed pursuant to a then-existing statute was held to constitute a "proceeding begun" whose limitation could not be shortened by an after-enacted statute without offending Art. 5 § 54, Okl.Const.
. In re Ross, 1949 OK 132 ¶ 8, 207 P.2d 254, 256; Barry v. Board of County Com'rs of Tulsa County, 1935 OK 701, 49 P.2d 548, 550; Morley v. Hurst, 1935 OK 712, 49 P.2d 546, 546.
. Smith v. Smith, 1982 OK 115, ¶ 1, 652 P.2d 297, 299 n. 1 (Opala, J., concurring); Oklahoma Water Resources Bd. v. Central Okl. M.C. Dist., 1968 OK 73, ¶ 23, 464 P.2d 748, 755. The repeal of a statute shall not affect any right accrued by virtue of the repealed statute. Baker v. Tulsa Building & Loan Ass'n, 1936 OK 568, 66 P.2d 45, 49.
. The protection of Art. 5, §§ 52 and 54, OKL Const., supra notes 30 and 31, must extend with equal vigor to accrued rights derived from the common law. Common-law rights cannot be singled out under Art. 5, § 46, Okl.Const., for a treatment different from that which is accorded other rights. The Constitution provides no authority for distinguishing one accrued right from another by the source of law from which it is derived. -
. 1977 OK 164, 569 P.2d 974. For Thomas' progeny see Roach v. Jimmy D. Enterprises, Ltd., 1996 OK 26, 912 P.2d 852; Majors v. Good, 1992 OK 76, 832 P.2d 420 (statutory increases or restrictions on recoverable damages are changes in substantive rights that must be applied prospectively only).
. The issue in Thomas was whether the statutory increase in wrongful death benefits should be applied retroactively. This court held that "[sltatutory increases in damage limitations are changes in substantive rights and not mere remedial changes." Thomas, supra note 35 at 976.
. Art. 5, § 54, Okl.Const, supra note 31. Rights are established in the states by their constitution, statutes or the common law. Oklahoma Water Res. Bd., supra note 33 at 755; Smith, supra note 33 at 299 n.1 (Opala, J., concurring). "[A] vested cause of action, whether emanating from contract or common-law principles, may constitute property beyond the power of the legislature to take away ...." de Rodulfa v. United States, 461 F.2d 1240, 1257 n. 96 (D.C.Cir.1972), cert. denied, 409 U.S. 949, 93 S.Ct. 270, 34 L.Ed.2d 220 (1972).
. Brashier has fully retrospective force. That impact is ascribed to every common-law decision unless a different effect is explicitly stated in its text.
. See Linkletter v. Walker, 381 U.S. 618, 623, 85 S.Ct. 1731, 1733-34, 14 L.Ed.2d 601 (1965) (under the declaratory theory, "rather than being the creator of the law [the judge] was but its discoverer"); James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 549, 111 S.Ct. 2439, 2451, 115 LEd.2d 481 (1991) (Scalia, J., concurring) (judges make law "as though they were 'finding' it- discerning what the law is, rather than decreeing what it is today changed to, or what it will tomorrow be"). The declaratory theory is described in Blackstone's maxim to mean that the duty of the court is not to "pronounce a new law, but to maintain and expound the old one." 1 Blackstone, Commentaries 69 (15th ed. 1809). Linkletter, supra, 381 U.S. at 622-23, 85 S.Ct. at 1734. "Although the view that judges discover rather than create the law is generally attributed to Blackstone, a similar view was expressed by Sir Matthew Hale 13 years before Blackstone was born." Jill E. Fisch, The Vanishing Prece*189dent: Eduardo Meets Vacatur, 70 Notre Dame L.Rev. 325, 367 n. 44 (1994). See Matthew Hale, THE History or tus Common Law or Enoranp 45 (The University of Chicago Press 1971) (1713); Harold J. Berman, Charles J. Reid, Jr., The Transformation of English Legal Science: From Hale to Blackstone," 45 Emory Law Journal 437, 448 (1996); Cross, supra note 12 at 21-30 (Ch. 1, sub. div. 7, The declaratory theory of precedent).
. "... [When there is a precedent, orthodox theory has ceased to maintain that the precedent is no more than evidence of the moral fitness, public convenience, or conformity to usage of a rule derived from a previous decision or series of decisions. Such a rule is law 'properly so called" and law because it was made by the judges, not because it originated in common usage, or the judges' idea of justice and public convenience. Holdsworth once wrote in a manner suggesting that the views of Hale and Blackstone [on the retrospective effect of common-law jurisprudence] represent twentieth-century judicial doctrine. ..." Cross, supra note 12 at 22 (emphasis supplied).
. The retrospective application of decisions is grounded on the view that "the function of the courts [is] to decide cases before them based upon their best current understanding of the law", a view that in turn reflects the declaratory theory of the law, according to which the courts are understood only to find the law, not to make it. Beam, supra note 39, 501 U.S. at 535-36, 111 S.Ct. at 2443.
. The "American Rule" does not have a constitutional dimension in the state-court systems. It is but a self-imposed restraint on the exercise of judicial power in shifting litigation costs. See Reynolds v. First Alabama Bank of Montgomery, 471 So.2d 1238, 1241 (Ala.1985); Fleming v. Garnett, 231 Conn. 77, 646 A.2d 1308, 1317 (1994); Goodrich v. E.F. Hutton Group, Inc., Del.Supr., 681 A.2d 1039, 1043-44 (1996); Dalo v. Kivitz, 596 A.2d 35, 37, 39 (D.C.1991); Oliver T. Carr Co. v. United Techs. Communications Co., 604 A.2d 881, 883 (D.C.1992); Sheridan v. Greenberg, 391 So.2d 234, 236 (Fla.App.1980) ("The fundamental rule in Florida is that attorneys' fees are in derogation of the common law and will only be granted pursuant to a contractual agreement or statutory authority"); State Farm Fire & Casualty Co. v. Miller Electric Co., 231 Ill.App.3d 355, 359, 172 Ill.Dec. 890, 596 N.E.2d 169 (1992); Board of Comm'rs v. Wyant, 672 N.E.2d 77, 79 (Ind.Ct.App.1996); Dodge v. United Services Auto. Ass'n, 417 A.2d 969, 975 (Me.1980); Waldman v. American Honda Motor Co., 413 Mass. 320, 322, 597 N.E.2d 404, 406 (1992); Popma v. Auto Club Ins. Ass'n, 446 Mich. 460, 474, 521 N.W.2d 831, 837 (1994).
. See Sniadach v. Family Finance Corp., 395 U.S. 337, 340, 89 S.Ct. 1820, 1822, 23 L.Ed.2d 349 (1969) (where the Court says, "The fact that a procedure would pass muster under a feudal *190regime does not mean it gives necessary protection to all property in its modern forms"); Shaffer v. Heitner, 433 U.S. 186, 212, 97 S.Ct. 2569, 2584, 53 L.Ed.2d 683 (1977) (where it is said, " '[TJraditional notions of fair play and substantial justice' can be as readily offended by the perpetuation of ancient forms that are no longer justified as by the adoption of new procedures that are inconsistent with the basic values of our constitutional heritage" (emphasis mine)).
. A reviewing court may direct that on remand the nisi prius court conduct a jury trial of less than all the issues on the merits of the claim. Hallford v. Schumacher, 1958 OK 53, 323 P.2d 989, 993.