Jamesian Philosophy Refreshed

Intriguing post on the Legal History Blog argues that serious historians should stop using the phrase "the founders".  This is how one uses the phrase in a sentence: It is not clear whether the founders approved of a broad reader of the commerce clause when they wrote it.    The problem with such a sentence is that it suggests a sort of chicken-entrails reading of the constitution that "the founders" wrote.  What they thought of the commerce clause depends on which one or which cluster you want to discuss. The clusters you might want to understand overlap and/or contrast in confusing ways, and using the phrase "the founders" as if it is itself a coherent cluster of individuals living and working in the US in the late 18th century adds nothing but confusion. In that particular case, we could also have used the phrase "the framers".  But part of the problem is that, complicated as "the framers" itself is as a concept, "the founders...

I'm going to attempt to go up to three posts a week for now.  Elizabeth Chika Tippett, of the University of Oregon School of Law, has written a new article available at SSRN, Enslaved Agents .  The article begins with the fact that between 1798 and 1863, in the slave states of the US (and CS), certain slaves would conduct business negotiations and conclude transactions on behalf of their owners. This, as one might expect, sometimes became fodder for litigation when one party to a deal wanted an escape clause, since they could not reasonably have expected a court to hold them to promises made to a chattel. But that argument doesn't seem to have done them any good.  Some of the specific situations Tippett mentions are fascinating. Consider  the case of "Robert Gordon, an enslaved man who profitably managed a coal yard, and in exchange was allowed to sell the 'slack' coal on his own behalf, through which he purchased his freedom." So he not only managed the coal ...

The Legal History Blog has alerted its readers to the existence of a journal on    Buddhism, Law & Society . In its inaugural issue, a professor at the University of Bern delves into the law in 18th century Mongolia.  Mongolia was part of the vast Qing Empire at this time, the Manchu based empire that would last until the early 20th century and the rise of the Republic of China. But Mongolia was given relative autonomy, so it makes sense to speak and wrote of its legal system as a separate entity.  The abstract of the article in question reads thus:  "For 18th-century Mongols living under Qing rule, the imperial state was not the only source of law. Among the rules acknowledged to have binding character were Buddhist legal traditions, customary legal practices as well as rights and duties emanating from dependencies and prerogatives. Yet, the existence of these different legal practices and codes raises many questions about the specific way these di...

A new book by David Rudenstine, THE AGE OF DEFERENCE, looks at the extent to which judges defer to the President, and to the executive branch more generally, especially since the end of the Second World War. Rudenstine discusses a variety of Supreme Court decisions going back to the Truman era, in which the high court ceded authority. The trauma of 9/11 seems only to have made this habit more settled. Rudenstine thinks this a bad thing, an abdication of the courts' task to protect individual rights on the one hand and to check otherwise uncheckable power on the other. Here's more from the Legal History Blog. http://legalhistoryblog.blogspot.com/2016/09/rudenstine-on-supreme-court-national.html