@cburset.bsky.social
Law professor and legal historian at Notre Dame. Author, “An Empire of Laws: Legal Pluralism in British Colonial Policy” (Yale University Press 2023). https://law.nd.edu/directory/christian-burset/
Many thanks, @lsolum.bsky.social !
27.01.2026 20:54 — 👍 10 🔁 4 💬 0 📌 0
Federal courts apply stare decisis with extra force to decisions that interpret statutes. Critics contend that this “supercharged” deference to statutory precedents lacks a legitimate pedigree. But that charge rests on conjecture, since scholars have paid little attention to how English courts historically handled such cases. This Article responds with a new history of statutory stare decisis. For much of the seventeenth and eighteenth centuries, it argues, common lawyers endorsed the maxim communis error facit ius—common error makes law. That maxim counseled against overturning a course of decisions merely because they had interpreted a statute erroneously. Indeed, as one leading judge remarked, “A series of precedents against the plain words of an act of Parliament have made a law.” Starting in the 1760s, however, several factors—better legislative drafting, partisan conflict over jurisprudence, and high-profile treason trials—led some lawyers, but not all, to reject communis error when it came to statutes. The result: By the 1790s, English law contained two rival approaches to statutory precedent—a classical paradigm, which effectively allowed a course of precedent to amend a statute; and a revisionist alternative, which held that precedent could clarify but not alter a statute’s meaning. Americans inherited that conflict, which endured well into the nineteenth century. This history offers a new perspective on statutory stare decisis today. It also suggests a further question: If some early Americans thought precedent could reshape legislation, what did that mean for erroneous constitutional precedents?
I've posted a new draft: "The Origins of Statutory Stare Decisis." It offers a new account of how 18th- and 19th-century courts handled erroneous statutory precedents, and how that changed over time. It's still very much a draft--comments welcome! papers.ssrn.com/sol3/papers....
23.01.2026 15:23 — 👍 3 🔁 0 💬 0 📌 1I recently joined JOTWELL as a regular contributor in the legal history section, and my first jot is out. I highly recommend
@loreldridge.bsky.social's Law and the Medieval Village Community, which has a lot to offer to legal scholars, even those who aren’t legal historians!
I’m sorry to hear this. Praying for you and your family.
24.10.2023 01:59 — 👍 0 🔁 0 💬 0 📌 0
