Michelman on The Baseline Dignity of the Common Law

Frank Michelman (Harvard) has posted Comment: The Common Law as Baseline? (A Reading of the Judgments of the Supreme Court of Appeal of South Africa in the Case of Minister of Minerals and Energy v. Agri South Africa) on SSRN.  Here's the abstract:

This Comment presents a reading of the judgments of the Supreme Court of Appeal of South Africa in the recent case of Minister of Minerals and Energy v. Agri South Africa. The judgments reject a claim of unconstitutional expropriation of property by force of a recent, major statutory revision of laws governing acquisition, retention, exercise, duration, and transfer of mining rights in South Africa.

The Comment makes no attempt to provide a complete account of these judgments (which will undergo review by South Africa’s Constitutional Court) or all of their reasoning. Its scope is restricted to questions regarding the appearance in the judgments, and certain arguments to which the judgments respond, of what I have called “the baseline dignity of the common law,” which comes to the fore when the rule or model of the common law is taken to provide a baseline of justified expectation, by reference to which to measure claims of excessive or otherwise impermissible deprivations or expropriations by the state.

Steve Clowney