Christian Burset of the University of Pennsylvania joins us for a journey into the strange past of jolly old England when Parliament made law but judges and lawyers weren’t too concerned with what it said. Christian’s article The Origins of Statutory Stare Decisis, forthcoming in the Columbia Law Review, looks at the history of how courts have dealt with precedent about what statutes mean. Today courts largely think of themselves as bound by previous decisions interpreting statutes even when those decisions seem to have wrongly interpreted the statutes. This is true even if the precedent consists of a solitary opinion. Textualists and originalists, at least of some varieties, bristle at this idea, arguing that a statute says what a statute says and courts should feel free to overturn precedent when they’ve previously interpreted the statutes incorrectly. Christian explores how this disagreement is not a new one and how the older debates can give us insight into what courts should do today.

Christian explains that back in the days following the Glorious Revolution of 1688, English courts did not consider themselves bound by one wrong opinion. However, a course of wrong opinions could change the understanding of a statute even when everyone later recognized that the understanding was wrong. This was called communis error facit ius—common error makes law. One reason for this was that Parliament was actually pretty rubbish at writing statutes and another reason was that statutes were literally hard to find. However, in the mid-eighteenth-century Parliament got its act together and started both making its acts more widely accessible and hiring people to help its Members and Peers write laws in more coherent English. This led to a new understanding of statutory precedent, rooted in a statute’s text and akin to what today would be called a more textualist approach. However, the old view did not go away and the two approaches battled in the courtrooms of England and in those of the new United States.

We discuss this history with Christian, what it means for interpreting statutes—and also constitutions—today, and related subjects such as American’s early lukewarm view of the common law and the rise of reported decisions via the West Publishing Company. We also hear how he conducted his research and what it’s like to read Henry Finch’s early seventeenth century blockbuster (and pithily titled) Law. Plus, hear Christian’s insider’s tip about ChatGPT and translating Law French.

The Origins of Statutory Stare Decisis

An Empire of Laws

Law, by Henry Finch