My (temporary) Georgetown colleague Jim Oldham will be speaking next week in Washington, DC on “Judicial Activism in English Common Law at the Time of the Founders.” Details can be found here.
Jim is perhaps the leading living scholar on Lord Mansfield, who is also one of my favorite judges of all time. I discuss him extensively in my recently-published article on “The Rise and Fall of Efficiency in the Common Law” as perhaps the pivotal figure in the development of the modern common law and perhaps more responsible than any other individual for the development of the efficiency-enhancing rules of the common law. The description of the program seems a bit off-key based on what I know of Mansfield–it seems like a long way from the evolving nature of the common law, such as incorporating the law merchant practices into the law of contract and negotiable instruments, to the Warren Court and abortion rights–but the combination of Oldham and Mansfield promises to be a terrific program.
I agree with the more general point about recognizing that the Constitution recognizes the dynamic common law evolutionary process as well as the static conception of the common law. In fact, I argued exactly that point in this article a few years ago. As we note there, however, it is also important to recognize the true nature and institutional structure of the common law, and not leap to the conclusion that just because the Supreme Court says it, it must be common law.
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