
doi: 10.2139/ssrn.6109606
<p>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 <i>communis error facit ius</i>—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 <i>communis error</i> 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?</p>
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