Norton v. Shelby County
Is it still good law? What later courts have actually done to this case.
Status
More on how this was screened
The Supreme Court abandoned Norton's categorical statement that an unconstitutional statute has no legal effect: courts may account for actions taken in reliance on the statute. That treatment and two narrower federal treatments are listed below. Later opinions still cite Norton's separate rule concerning the need for a lawful office before there can be a de facto officer. Several state courts chose different rules for their own law, as noted separately.
41 later cases cite Norton v. Shelby County; 41 of those citations sat close to treatment language and were flagged for reading, and all of them have been read. Citations that did not sit near treatment language were not flagged and were not read one by one, so a court that weakened this case without using any of that language would not appear here.
Relying on Norton v. Shelby County?
This page shows what later courts did to it. Ask about your specific facts and see whether it still carries your argument, with citations you can check.
Treatments
Abrogated
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The Supreme Court abandoned Norton's absolute rule that an unconstitutional statute is legally nonexistent and considered reliance on a state aid statute when deciding whether to order repayment.
Lemon v. Kurtzman · Supreme Court of the United States · filed
However appealing the logic of Norton may have been in the abstract, its abandonment reflected our recognition that statutory or even judge-made rules of law are hard facts on which people must rely in making decisions and in shaping their conduct.
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Limited
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The district court applied its ruling invalidating a New Jersey statute prospectively, declining to treat the statute as though it had never existed.
Robinson v. Visual Packaging, Inc. · United States District Court for the District of New Jersey · filed
At common law, a finding that a statute was unconstitutional was applied retroactively under the reasoning that the statute “was inoperative as though it had never passed.” Norton v. Shelby County, 118 U.S. 425, 442, 6 S.Ct. 1121, 1125, 30 L.Ed. 178 (1886). ... For these reasons, today’s decision will not be applied retroactively, and summary judgment is denied as to defendants Hub Plastics and Polytop.
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Criticized
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The Fifth Circuit called the view of law's retroactive nonexistence illustrated by Norton a dialectical fiction, while leaving the particular retroactivity question undecided.
Miller v. Amusement Enterprises, Inc. · Fifth Circuit · filed
Under the Blackstonian view “the law” (in issue) has existed almost from the time of the great void. Judges do not determine now what the law is. They merely discover the law as it has always been, and upon its discovery the old “law” is extinguished and never existed. See, e. g., Norton v. Shelby County, 1886, 118 U.S. 425, 6 S.Ct. 1121, 30 L.Ed. 178. With all their limitations courts today are hardly beguiled by these intriguing dialectical fictions.
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