Foreseeability as a Limitation on the Retroactive Application of Judicial Decisions: Davis v. Nebraska

Abstract

INTRODUCTION|The Due Process Clause of the Fourteenth Amendment of the United States Constitution prohibits a state from depriving any "person of life, liberty, or property without due process of law." The concept of due process has been interpreted to guarantee the right to notice. An essential aspect of the right to notice is providing people with fair warning of what conduct is punishable as a crime. The rule against retroactive legislation helps ensure that people are given fair warning by prohibiting punishment of acts that were not proscribed at the time they were committed.|reach of an existing criminal statute in an unforeseeable way and is applied retroactively to the detriment of a criminal defendant. An unforeseeable statutory interpretation denies potential defendants forewarning that a given act is proscribed by the statute. Therefore, even though state courts have the ultimate authority to interpret their laws, the Due Process Clause prevents them from applying an unexpected or unforeseeable interpretation retroactively...