The medieval common law offered few public law remedies, the chief being the negative principle that the king could do no wrong: he could not be sued, but his unlawful actions or commands were void. A new chapter began in the sixteenth century with the development of habeas corpus as a means of challenging imprisonment. Since government rested ultimately on the power to lock people up, here at last was a means of reviewing abuses of authority. Habeas corpus was augmented in the seventeenth century by mandamus and certiorari, to review encroachments on other kinds of liberty. Though the new remedies were used to challenge imprisonment by prerogative courts and other governmental actions, the judges sought to make them palatable to the crown by representing them as the exercise (on the king’s behalf) of a higher prerogative. They were ‘prerogative writs’, capable (in Coke’s words) of correcting ‘any manner of misgovernment’.

Factbound and Splitless: recognizes the US Supreme Court’s preeminent role in announcing federal common law that governs the relationship between tribes, states, and the federal government. However, because the Supreme Court only hears cases that can earn four votes for certiorari, the direction of federal Indian law is controlled as much by the choice to hear a case as by the ultimate decision that is issued. Fletcher examines the Supreme Court’s behavior in Indian law cases at the certiorari stage in order to explain how modern Court behavior is changing the landscape of Indian law without even deciding some of the most important legal issues.