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Frank I. Michelman, Expropriation, Eviction, and the Dignity of the Common Law (Harv. Pub. L. Working Paper No. 12-37, 2012).

Abstract: This is the text of a public talk delivered on 18 July 2012 in Johannesburg, South Africa. The talk included discussions of two recent decisions from South Africa’s top courts, considered in relation to the South African legal community’s response to the Constitution’s directions for submission of South Africa’s body of pre-transition common law to judicial inspection in appropriate cases, in order to check whether common-law norms are line (and to bring them into line where they are not) with the “spirit, purport and objects” of the Constitution’s Bill of Rights. Such an on-going, case-based judicial audit of the common law under the gaze of the Bill of Rights would be one way (in cases where all the parties are private) of giving “horizontal effect” to the Bill of Rights.