Showing papers on "Common law published in 2011"

The Right to Privacy

Abstract: hat the individual shall have full protection in person and in property is a principle as old as the common law; but it has been found necessary from time to time to define anew the exact nature and extent of such protection. Political, social, and economic changes entail the recognition of new rights, and the common law, in its eternal youth, grows to meet the new demands of society. Thus, in very early times, the law gave a remedy only for physical interference with life and property, for trespasses vi et armis. Then the "right to life" served only to protect the subject from battery in its various forms; liberty meant freedom from actual restraint; and the right to property secured to the individual his lands and his cattle. Later, there came a recognition of man's spiritual nature, of his feelings and his intellect. Gradually the scope of these legal rights broadened; and now the right to life has come to mean the right to enjoy life, -the right to be let alone; the right to liberty secures the exercise of extensive civil privileges; and the term "property" has grown to comprise every form of possession -intangible, as well as tangible.

The Evolution of EU Law

Abstract: The Nature of the Community: Integration, Democracy and Legitimacy The Institutional Development of the EU: A Constitutional Analysis The EU as a 'Layered' International Organisation: Institutional Unity in Disguise External Relations and External Competence: The Emergence of an Integrated Policy Direct Effect, Supremacy and the Nature of the Legal Order Article 177 in Social and Political Context European Administrative Law and the Global Challenge Remedies for Breaches of EC Law in National Courts: Legal Variation and Selection The European Court of Justice The Constitution of the Common Market Place: The Free Movement of Goods The Free Movement of Persons and Services EMU Revisited: Are We Making a Constitution? What Constitution Are We Making? EC 'Social' Policy The Principle of Equal Treatment: From Market Unifier to Fundamental Right? From the Margins to the Centre: Education and Training Law and Policy Competition Law and Intellectual Property Rights: Evolving Formalism Regional policy: An Evolutionary Perspective Inhabitants in the Field of EC Environmental Law Consumer Policy Community, State and Market Governance and the Single European Market

Evidence in Trials at Common Law

Abstract: In legal academe the nearest analogue to the kamikaze's attempt at simultaneous triumph and suicide in the funnel of an aircraft carrier is an undertaking to revise or even update John Henry Wigmore's monumental ten-volume treatise, Evidence in Trials at Common Law.1 Wigmore is the Master, not merely of the law of evidence, but of treatisewriting in general. The legal forest is full of Wigmore purists, who believe that both the Master's reasoning and his imaginative, not to say occasionally eccentric, prose style should be forever spared the revisionist's pencil. It is hardly surprising that there are so many Wigmore purists. Since the day its first volume was published in 1904, Wigmore's Evidence has been considered the world's preeminent work of legal scholarship. The early reviews read like a theatrical advertisement. Yale Law Journal: "[T]he treatment is masterly." ' "We cannot over-praise the completeness and the system with which Professor Wigmore has treated his subject." 0 Michigan Law Review: "Too much cannot be said in praise of the scholarship and learning exhibited in it .... invaluable contribution to the literature . . .will take its place among the great works of modern times . . . . " Harvard Law Review: "This is unquestionably one of the most important treatises . . . published during the last generation. . . . It is hardly too much to say that this is the most complete and exhaustive treatise on a single branch of our law that has ever been written. . . . wonderful." ' American Law Review: "No legal treatise has ever anywhere been published which approaches this work in fullness and thoroughness of treatment." 6 The

Comparative international law? the role of national courts in creating and enforcing international law

Abstract: Academics, practitioners and international and national courts are increasingly seeking to identify and interpret international law by engaging in comparative analyses of various domestic court decisions. This emerging phenomenon, which I term ‘comparative international law’, loosely fuses international law (as a matter of substance) with comparative law (as a matter of process). However, this comparative process is seriously complicated by the ambiguous role that national court decisions play in the international law doctrine of sources, under which they provide evidence of the practice of the forum State as well as being a subsidiary means for determining international law. This article analyses these dual, and sometimes conflicting, roles of national courts and the impact of this duality on the comparative international law process.

African Customary Law, Customs, and Women's Rights

Abstract: The sources of law in most African countries are customary law, the common law and legislation both colonial and post-independence. In a typical African country, the great majority of the people conduct their personal activities in accordance with and subject to customary law. Customary law has great impact in the area of personal law in regard to matters such as marriage, inheritance and traditional authority, and because it developed in an era dominated by patriarchy some of its norms conflict with human rights norms guaranteeing equality between men and women. While recognizing the role of legislation in reform, it is argued that the courts have an important role to play in ensuring that customary law is reformed and developed to ensure that it conforms to human rights norms and contributes to the promotion of equality between men and women. The guiding principle should be that customary law is living law and cannot therefore be static. It must be interpreted to take account of the lived experiences of the people it serves.

Access to Asylum: International Refugee Law and the Globalisation of Migration Control

Abstract: Is there still a right to seek asylum in a globalised world? Migration control has increasingly moved to the high seas or the territory of transit and origin countries, and is now commonly outsourced to private actors. Under threat of financial penalties airlines today reject any passenger not in possession of a valid visa, and private contractors are used to run detention centres and operate border crossings. In this volume Thomas Gammeltoft-Hansen examines the impact of these new practices on refugees' access to asylum. A systematic analysis is provided of the reach and limits of international refugee law when migration control is carried out extraterritorially or by non-state actors. State practice from around the globe and case law from all the major human rights institutions are discussed. The arguments are further linked to wider debates in the fields of human rights, general international law and political science. (Less)

Environmental Protection and Human Rights

Abstract: With unique scholarly analysis and practical discussion, this book provides a comprehensive introduction to the relationship between environmental protection and human rights being formalized into law in many legal systems. This book instructs on environmental techniques and procedures that assist in the protection of human rights. The text provides cogent guidance on a growing international jurisprudence on the promotion and protection of human rights in relation to the environment that has been developed by international and regional human rights bodies and tribunals. It explores a rich body of case law that continues to develop within states on the environmental dimension of the rights to life, to health, and to public participation and access to information. Five compelling contemporary case studies are included that implicate human rights and the environment, ranging from large dam projects to the creation of a new human right to a clean environment.

The Privatization of Public Legal Rights: How Manufacturers Construct the Meaning of Consumer Law

Abstract: This article demonstrates how the content and meaning of California’s consumer protection laws were shaped by automobile manufacturers, the very group these laws were designed to regulate. My analysis draws on and links two literatures that examine the relationship between law and organizations but often overlook one another: political science studies of how businesses influence public legal institutions, and neo-institutional sociology studies of how organizations shape law within their organizational field. By integrating these literatures, I develop an “institutional-political” theory that demonstrates how organizations’ construction of law and compliance within an organizational field shapes the meaning of law among legislators and judges. This study examines case law and more than 35 years of California legislative history concerning its consumer warranty laws. Using institutional and political analysis, I show how auto manufacturers, who were initially subject to powerful consumer protection laws, weakened the impact of these laws by creating dispute resolution venues. The legislature and courts subsequently incorporated private dispute resolution venues into statutes and court decisions and made consumer rights and remedies largely contingent on consumers first using manufacturer-sponsored venues. Organizational venue creation resulted in public legal rights being redefined and controlled by private organizations.

Derivatives and the Legal Origin of the 2008 Credit Crisis

Abstract: Experts still debate what caused the credit crisis of 2008. This Article argues that dubious honor belongs, first and foremost, to a little-known statute called the Commodities Futures Modernization Act of 2000 (CFMA). Put simply, the credit crisis was not primarily due to changes in the markets; it was due to changes in the law. In particular, the crisis was the direct and foreseeable (and in fact foreseen by the author and others) consequence of the CFMA’s sudden and wholesale removal of centuries-old legal constraints on speculative trading in over-the-counter (OTC) derivatives.Derivative contracts are probabilistic bets on future events. They can be used to hedge, which reduces risk, but they also provide attractive vehicles for disagreement-based speculation that increases risk. Thus, as an empirical matter, the social welfare consequences of derivatives trading depend on whether the market is dominated by hedging or speculative transactions. The common law recognized the differing welfare consequences of hedging and speculation through a doctrine called “the rule against difference contracts” that treated derivative contracts that did not serve a hedging purpose as unenforceable wagers. Speculators responded by shifting their derivatives trading onto organized exchanges that provided private enforcement through clearinghouses in which exchange members guaranteed contract performance. The clearinghouses effectively cabined and limited the social cost of derivatives risk. In the twentieth century, the Commodity Exchange Act (CEA) largely replaced the common law. Like the common law, the CEA confined speculative derivatives trading to the organized (and now-regulated) exchanges. For many decades, this regulatory system also kept derivatives speculation from posing significant problems for the larger economy.These traditional legal restraints on OTC speculation were systematically dismantled during the 1980s and 1990s, culminating in 2000 with the enactment of the CFMA. That legislation set the stage for the 2008 crises by legalizing, for the first time in U.S. history, speculative OTC trading in derivatives. The result was an exponential increase in the size of the OTC market, culminating in 2008 with the spectacular failures of several systemically important financial institutions (and the near-failures of several others) due to bad derivatives bets. In the wake of the crisis, Congress passed the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (Dodd-Frank Act). Title VII of the Act is devoted to turning back the regulatory clock by restoring legal limits on speculative derivatives trading outside of a clearinghouse. However, Title VII is subject to a number of possible exemptions that may limit its effectiveness, leading to continuing concern over whether we will see more derivatives-fueled institutional collapses in the future.

Law and Finance in Africa

Abstract: This paper assesses how legal origin influences financial development through regulation quality and the rule of law. It employs all the dimensions identified by the Financial Development and Structure Database of the World Bank. The law channels are instrumented with legal origins to account for financial intermediary dynamics of depth, efficiency, activity and size. The results broadly support the benefits of law mechanisms in financial development. The findings only show partial support for the consensus that English common law countries provide better conditions for financial development. While they dominate in dynamics of depth, activity and size, French civil law countries have an edge in financial allocation efficiency. Portuguese civil law countries broadly fall in-between. With the exception of financial efficiency, French civil law sub-Saharan African (SSA) countries are least while North African countries dominate even English common law countries in financial intermediary aspects of depth and activity. French SSA countries dominate overall in allocation efficiency.

The Use of Precedent by International Judges and Arbitrators

Abstract: In national legal systems, precedent constitutes the starting-point of judges' reasoning. Most of the time, judges hew closely to precedent for purposes of legal certainty and for fear that their decisions might be challenged before higher instances. This practice translates into the stare decisis rule in Common Law, and into the concept of jurisprudence constante in Roman-German Law. In international law, the stare decisis rule has been excluded since 1922, but permanent jurisdictions constantly refer to their previous decisions. Nonetheless, the former are still led to reassess their jurisprudence by various methods in order to take into consideration the evolutions of the law and of international society. Regional jurisdictions are more inclined to do so than global ones. As for arbitral tribunals, they have recourse to legal precedents in a very variable manner according to the area: interstate relationships, international trade, investment or sport. Furthermore, the increase in the number of courts and arbitral institutions introduces the question whether precedents from one dispute settlement institution are relevant to others. The question arises when two courts or tribunals apply the same national law or treaty and when they apply general international law. The challenge is to navigate between two risks: that of jurisprudential incoherence and that of government by judges. Legal precedent in international dispute settlement is neither to be worshipped nor ignored.

The Inflation of the Margin of Appreciation by the European Court of Human Rights

Abstract: The doctrine of the margin of appreciation, despite being repeatedly used by the European Court of Human Rights, is still to some extent mysterious. Given the doctrine's ambiguity, this article fir...

Constitutional property law

Abstract: In constitutional property law, questions about the validity of regulatory control over the use and exploitation of property are decided with reference to the deprivation provision in section 25(1) of the Constitution of the Republic of South Africa, 1996, as interpreted in FNB (First National Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue Service; First National Bank of SA Ltd t/a Wesbank v Minister of Finance 2002 (4) SA 768 (CC)). The general policing power or regulatory principle adopted in this decision means that state regulation of the use and exploitation of property (such as land use planning, regulatory control over the development of or building on land, and conservation of the environment) is regarded as a legitimate exercise of state regulatory power that does not require compensation. Accordingly, regulatory deprivation of property is constitutionally unassailable, without compensation, even when it causes loss of value for the property holder, provided the regulatory action was properly authorized, administrative justice principles were adhered to and the effects of the regulatory action are not arbitrary, excessive or disproportionately unfair (see the cases discussed in AJ van der Walt Constitutional Property Law 3 ed (2011) 213-18; more recent case law is discussed below).

The Limits of Legislative Harmonization Ten Years after Tobacco Advertising: How the Court's Case Law has become a "Drafting Guide"

Abstract: Ten years have elapsed since the first Tobacco Advertising judgment, in which the Court for the first time concluded that the EU legislature had stepped beyond the limits of its competence to harmonize national laws which is granted by the Treaty. However, those subsequently seeking annulment of measures of harmonization have almost all been disappointed. This paper surveys the accumulated case law and finds that the “limits” of EU legislative competence, though of the highest constitutional significance in principle, are in practice imprecisely defined by the Treaty itself with the consequence that the legislative institutions enjoy wide discretion. The pattern has become circular: the Court presents a formula which defines the proper scope of harmonization and which sets out the control exercised by the principles of proportionality and subsidiarity, the EU legislature duly adopts the approved but reliably vague vocabulary and, provided the drafting is well-chosen, the Court has no plausible basis on which to set aside the legislative act. Case law dealing with the limits of EU competence has been converted into no more than a “drafting guide.” The paper shows how many of these deficiencies have been maintained uncritically after the reforms made by the Lisbon Treaty, even though a major part of the reform agenda initiated by the Laeken Declaration was inspired by “competence sensitivity.” Lisbon has instead put most of its reforming faith in a new recruit to competence monitoring - the national parliaments of the Member States. These new arrangements are poorly shaped at the level of detail, but the paper concludes with a largely positive assessment of the intention behind them. In particular they reveal a proper insistence on the need to supplement judicial control, which has become largely ineffective, with fresher political sensitivity to the perils of over-hasty centralization.

Rules and reasons in the theory of precedent

Abstract: The doctrine of precedent, as it has evolved within the common law, has at its heart a form of reasoning—broadly speaking, a logic—according to which the decisions of earlier courts in particular cases somehow generalize to constrain the decisions of later courts facing different cases, while still allowing these later courts a degree of freedom in responding to fresh circumstances. Although the techniques for arguing on the basis of precedent are taught early on in law schools, mastered with relative ease, and applied on a daily basis by legal practitioners, it has proved to be considerably more difficult to arrive at a theoretical understanding of the doctrine itself—a clear articulation of the underlying logic. My purpose in this paper is to describe a new framework within which we can begin to address this problem. I concentrate on two of the most fundamental questions in the theory of precedent. First, how is it, exactly, that precedent cases constrain future decisions—what is the mechanism of constraint? And second, how is a balance then achieved between the constraints of precedent and the freedoms allowed to later courts for developing the law? The view I present will be contrasted with three other views, or models, of precedential constraint appearing in the literature. The first is the rule model. A precedent case normally contains, not only a description of the facts of the case along with a decision on the basis of those facts, but also some particular rule through which that decision was reached. According to the rule model, it is this rule that carries the precedential constraint. Constraint by precedent just is constraint by rules; a precedent case constrains the decision of a later court when the rule contained in that precedent applies to the fact situation confronting the later court.

A Real European Citizenship; A New Jurisdiction Test; A Novel Chapter in the Development of the Union in Europe

Abstract: The reach of the law of the European Union (EU) is strictly limited. It only applies to the situations falling within its scope. Until very recently, in the case of EU citizens, in order to fall within this scope, a so-called “cross-border situation” was required – a demonstration that their situation had a Union dimension and was not confined to one of the Member States. This is no longer always the case. Under the new approach, it is the intensity of the Member States’ interference with the rights of EU citizens, and not the borders, which trigger the application of EU law. The consequences of the recent case law of the Court of Justice of the EU, including the Rottmann, Ruiz Zambrano, and McCarthy cases, which brought about this change, are truly groundbreaking. The new legal paradigm amounts to a tectonic shift in the border dividing the material scopes of the EU and the Member States’ legal orders, with clear implications for the status of EU citizenship and the sovereignty of the Member States. This article provides a first analysis of this fundamental development, discussing the reasons for, and the limits of the new approach as well as anticipating its consequences for a number of key elements of EU law, including citizenship, territory and the principle of equality. We are witnessing the creation of a real European citizenship by the Court.

Free Press and Fair Trial: The Role of Behavioral Research

Abstract: The growth of mass media has complicated the relatioship between the courts and the media. Free press and fair trial rights are kept in balance by the use of judicial restraints and remedies such asvoir dire, change of venue, and gag orders. This balance has shifted back and forth during the past two decades. Current case law and legal codes are inconsistent and provide insufficient guidance to judges in their use of restraints and remedies. Nor is there a body of empirical research on the impact of news coverage and juror behavior capable of informing the courts at this time. In this paper, we review and critically assess the empirical social science literature as it pertains to the legal issues involving free press and fair trial. We argue that carefully conducted empirical research could provide important information to the courts. We suggest research directions and methodological caveats to increase legal relevance and scientific validity.

International Criminal Procedure: 'Adversarial', 'Inquisitorial' or Mixed?

Abstract: The article analyses whether international criminal procedure is “adversarial”, “inquisitorial” or mixed. It examines the law of the ICTY and the ICC, including the relevant case law. This law has developed from an adversarial to a truly mixed procedure by way of various amendments of the ICTY’s Rules of Procedure and Evidence (RPE) and the drafting of the Rome Statute merging civil and common law elements in one international procedure. It is no longer important whether a rule is either “adversarial” or “inquisitorial” but whether it assists the Tribunals in accomplishing their tasks and whether it complies with fundamental fair trial standards. As to an efficient trial management an UN Expert Group called for a more active role of the judges, in particular with regard to the direction of the trial and the collection of evidence. In this context, it is submitted that a civil law like judge-led procedure may better avoid delays produced by the free interplay of the parties. Ultimately, however, the smooth functioning of a judicial system depends on its actors, procedural rules provide only a general framework in this regard. A truly mixed procedure requires Prosecutors, Defense Counsel and Judges who have knowledge of both common and civil law and are able to look beyond their own legal systems.

Forum Shopping for Human Rights

Abstract: The article analyzes a growing trend in international human rights law: the submission of petitions by aggrieved individuals to multiple human rights courts, tribunals, or treaty bodies, each of which is authorized to review the petition and to determine whether the individuals? rights have been violated. Most commentators have viewed this practice of "forum shopping for human rights" as a danger to be avoided. This article questions that conventional wisdom and offers in its place a re-envisioning of the human rights petition system. Although efficiency, finality and other concerns weigh against some varieties of duplicative review, this article argues that forum shopping, if properly regulated, will enhance the development of international human rights law. Forum shopping is the only way that many aggrieved individuals can receive a complete review of the rights violations allegations in their petitions, and it serves the further salutary function of encouraging jurists on human rights tribunals to engage in a dialogue to harmonize the content of legal rules shared by more than one treaty. The article first examines the haphazard approach to forum shopping that States have adopted in various human rights treaties, and it discusses two different strands of case law that together create incentives for individuals to forum shop for a favorable human rights ruling. The article then critiques the established view that forum shopping is harmful to human rights law, and it identifies in a comprehensive way the theoretical justifications for and against the practice of forum shopping. Building upon this theoretical analysis, the article then develops a comprehensive proposal for reforming the current approach to forum shopping and discusses alternative ways in which the proposal can be implemented into practice.

Equity; a course of lectures

Abstract: As the Downing Professor of the Laws of England, F. W. Maitland lectured on equity at Cambridge for 18 years, ending in 1906. The lectures were first published in 1909 under the editorship of A. H. Chaytor and W. J. Whittaker. They were reprinted seven times before being published in 1936 in a second edition edited by J. Brunyate, who added some notes to Maitland's lectures. This edition is replicated here. Equity is an important aspect of English law. Its rules grew up to supplement Common Law and largely concern such matters as wills and trusts.

The role of law in economic growth: a literature review

Abstract: Compared with other explanatory variables, such as capital accumulation, technological innovations, geographical endowments, economic openness, and cultural factors, institutions, especially legal institutions have been regarded as a crucial condition for economic growth in recent years. The importance of legal rules is systematically revealed by a series of cross-country econometric studies conducted by La Porta et al., who claim that legal origins are central to understanding the divergence in living standards across the regions and countries of the world and, compared with civil law countries, especially those countries with French civil law tradition, common law countries have enjoyed superior economic outcomes. The controversies set off by La Porta et al.'s proposition indicate that there are a number of questions that are difficult to explain by La Porta et al.'s theory, and hence call for more work on comparative analysis of different legal families before a consensus can be reached.

'Here, There and Everywhere': Human Dignity in Contemporary Law and in the Transnational Discourse

Abstract: Over the past several decades, human dignity has become an omnipresent idea in contemporary law. This Article surveys the use of human dignity by domestic and international courts and describes the concept’s growing role in transnational discourse, with special attention paid to the case law of the United States Supreme Court. The Article then examines the legal nature of human dignity, finding it to be a constitutional principle rather than a freestanding fundamental right, and develops a unifying and universal identity for the concept. At its core, human dignity contains three elements - intrinsic value, autonomy and community value - and each element has unique legal implications. The Article then considers how this elemental approach to human dignity analysis can assist in structuring legal reasoning and justifying judicial choices in hard cases, such as abortion, same-sex marriage and assisted suicide.

Making Sense of Fair Use

Abstract: Many criticize fair use doctrine as hopelessly unpredictable and indeterminate. Yet in recent empirical studies, leading scholars have found some order in fair use case law where others have seen only chaos. Building upon these studies and new empirical research, this Article examines fair use case law through the lens of the doctrine’s chronological development and concludes that in fundamental ways fair use is a different doctrine today than it was ten or twenty years ago. Specifically, the Article traces the rise to prominence of the transformative use paradigm, as adopted by the Supreme Court in Campbell v. Acuff-Rose, over the market-centered paradigm of Harper & Row v. The Nation and its progeny. The Article presents data showing that since 2005 the transformative use paradigm has come overwhelmingly to dominate fair use doctrine, bringing to fruition a shift towards the transformative use doctrine that began a decade earlier. The Article also finds a dramatic increase in defendant win rates on fair use that correlates with the courts’ embrace of the transformative use doctrine. In light of these developments, adding an historical dimension to a study of fair use case law helps to make sense of what might otherwise appear to be a disconnected series of ad hoc, case-by-case judgments and explains why current rulings might seem to contradict those regarding like cases issued when the market-centered paradigm still reigned supreme.

Interpretation and Institutional Choice at the WTO

Abstract: This article develops the framework of comparative institutional analysis for assessing the implications of judicial interpretation in the World Trade Organization (WTO). The analytical framework offers an improved means to describe and assess the consequences of choices made in treaty drafting and interpretation in terms of social welfare and participation in social decision-making. The analysis builds on specific examples from WTO case law. Our framework approaches treaty drafting and judicial interpretive choices through a comparative institutional lens - that is, in comparison with the implications of alternative drafting and interpretive choices for social welfare and participation in social decision-making processes. By deciding among alternative interpretations, the judicial bodies of the WTO effectively determine which social decision-making process decides a particular policy issue. That decision, in turn, can have profound domestic and international implications. While this article focuses on the WTO, the framework developed here has general relevance for understanding the interpretation of international and domestic legal texts from “law and economics” and “law and society” perspectives.

School and Law Enforcement Efforts to Combat Cyberbullying

Abstract: Although most youth have positive experiences while using technology, bullying by electronic means, or cyberbullying, is becoming an increasing problem. Not only does it have the potential to significantly disrupt the educational environment, but it also can result in severe psychological and physical consequences for victims. In this article, the authors present an overview of the problem, reviewing the most relevant empirical studies and providing a clearer picture of the characteristics associated with cyberbullying. Moreover, they discuss the extant case law and legislation that allow school administrators and law enforcement to intervene in cyberbullying incidents. Last, they examine the many shortcomings of local law enforcement in their efforts toward fighting cybercrime.

Understanding Discretion in Modern Policing

Abstract: Discretion is a ubiquitous and legitimate aspect of modern policing, though its scope and limits are poorly understood. In this article, the authors seek to refine our understanding of discretion in modern policing by examining the historical evolution of the concept, and the modern challenges facing individual officers and police organisations in reconciling, on the one hand, the duty to enforce the law fairly and impartially, and on the other hand, the need to temper strict law enforcement for sound policy and operational reasons. The article reviews recent case law in Canada exploring these tensions within policing and the proper limits of police discretion.

Transformative Constitutionalism and the Common and Customary Law

Abstract: A basic assumption of the Constitution, which finds expression in its ‘development clauses’ (ss 8(3) & 39(2)), is that South Africa cannot progress toward a society based on human dignity, equality, and freedom with a legal system that rigs a transformative constitutional superstructure onto a common and customary law base inherited from the past and indelibly stained by apartheid. We examine South African judges’ performance in implementing the development clauses through the lens of legal culture. A central concern is the potential of traditional South African legal culture to constrain the transformative project. South Africa has an advanced Constitution informed by the values of social interdependence and ubuntu, but its jurists continue to deploy traditional methods of legal analysis. Ironically, the United States has a classical liberal and individualistic charter, but the Legal Realist tradition bequeathed American lawyers a storehouse of modernist legal methods well suited to South Africa’s transformative project. Surveying the cases over the first 15 years of the new dispensation, we find some leading judgments that demonstrate the capability of the courts to transform the common law and provide glimpses of a more egalitarian, inclusive, and caring legal infrastructure. The chief disappointments are the absence thus far of a coherent exploration of the Constitution’s values or an explicit and sustained effort to develop new legal methodologies appropriate to transformative constitutionalism; the reluctance to interrogate the distributive consequences of private law rules in the routines of economic life; the emergence of a neo-liberal strand in constitutional application; and the lack of critical sharpness with respect to separation-of-powers issues. The inhibiting effect of mainstream legal culture is not entirely responsible for these difficulties, but concerns expressed a decade ago that the courts would be held back by the traditionalism of South African legal culture were well-taken.