Cite as: 532 U. S. 451 (2001)
Scalia, J., dissenting
Court believes the fair warning consisted of. Was it the mere fact that "[t]he year and a day rule is widely viewed as an outdated relic of the common law"? Ante, at 462. So are many of the elements of common-law crimes, such as "breaking the close" as an element of burglary, or "asportation" as an element of larceny. See W. LaFave & A. Scott, Criminal Law 631-633, 708-710 (1972). Are all of these "outdated relics" subject to retroactive judicial rescission? Or perhaps the fair warning consisted of the fact that "the year and a day rule has been legislatively or judicially abolished in the vast majority of jurisdictions recently to have addressed the issue." Ante, at 463. But why not count in petitioner's favor (as giving him no reason to expect a change in law) those even more numerous jurisdictions that have chosen not "recently to have addressed the issue"? And why not also count in petitioner's favor (rather than against him) those jurisdictions that have abolished the rule legislatively, and those jurisdictions that have abolished it through prospective rather than retroactive judicial rulings (together, a large majority of the abolitions, see 992 S. W. 2d, at 397, n. 4, 402 (listing statutes and cases))? That is to say, even if it was predictable that the rule would be changed, it was not predictable that it would be changed retroactively, rather than in the prospective manner to which legislatures are restricted by the Ex Post Facto Clause, or in the prospective manner that most other courts have employed.
In any event, as the Court itself acknowledges, "[d]ue process . . . does not require a person to apprise himself of the common law of all 50 States in order to guarantee that his actions will not subject him to punishment in light of a developing trend in the law that has not yet made its way to his State." Ante, at 464. The Court tries to counter this self-evident point with the statement that "[a]t the same time, however, the fact that a vast number of jurisdictions have abolished a rule that has so clearly outlived its purpose is surely relevant to whether the abolition of the rule in a particular case can be said to be unexpected and indefensible
479
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