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LegalityCase:
 
 Rogers v. Tennessee
, 532 U.S. 451 (2001) [p. 155] Summary: Rogers stabbed Bowdery in the chest, who died 15 months later from complications of this injury.Rogers was convicted o1.05(f second degree murder, and appealed, arguing that there was a common law rulewhere the victim would have to die within a year and a day of the incident for Rogers to have been guilty (not inthe statute though, only common law rule). The reason behind the common law rule was no longer applicable because of medical science's ability to tell what caused the death. So the court had abolished this rule. Rogersargued that this violated the
 Ex Post Facto
clause of state & fed constitutions. The court disagreed, saying thatthe rule is outdated, and Rogers was put on reasonable notice that the rule no longer applied, especially since somany jurisdictions had abolished it. Additionally, this was not a legislative change, but a judicial one. Dissent: applying ex post facto law makes the decision invalid. 
Notes:
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Principle of prospectivity:
o
Ensure fair notice to Δs so they can conform their conduct to the law
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Prevent ad hominem or discriminatory criminalization (punishing conduct on basis of whocommitted it, rather than because of its wrongfulness or harmfulness)
Case:
 
 Keeler v. Superior Court 
, 2 Cal. 3d 619 (1970) (p. 160) - man beats up his wife who was 8 mos pregnantwith another's man's baby; he had intended to kill the baby. Question was whether the murder statute applied -was the unborn baby a human life?
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The CL idea was that a human life started at birth. The Court held that it cannot change that to alsoinclude viable fetuses (where they can live on their own if they were to be prematurely born). Courtnoted that fair warning was a very important constitutionally protected right - due process. Δ was notgiven adequate notice in this case, and so couldn’t be held guilty of murder.
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 Keeler 
decided on 2 grounds:
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Legislativity of criminal lawmaking required by statute
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Prospectivity of criminal lawmaking required by the 14th amendment.
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Class Notes
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Δ charged with murder for assaulting his pregnant wife, and unborn, viable fetus dies.
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Murder statute only applies to "human beings" - so what does it mean to be a human being?
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Court holds that they don’t think legislature intended to include unborn fetuses.
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On rule of legality- court says also that we cant hold that legislature did mean that b/c of 2 more problems:
Only legislature can make the law, not the courts (courts only interpret)
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 No common law or judge-made crimes
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Separation of powers - legislature makes laws
Prospectivity - no fair notice
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Statute only said human beings, and it never was considered to include fetuses, sowe cant do it now b/c Keeler did not have notice that it was a crime.
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 No punishment unless there's a statute that defines the crime
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Why? b/c there's no fair warning to people that there's a crime
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We want to give people a chance to conform to the law
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We don’t want arbitrary lawmaking.
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