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The Origins of Statutory Stare Decisis

Authors: Christian Burset;

The Origins of Statutory Stare Decisis

Abstract

<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&nbsp;<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&nbsp;<i>communis error</i>&nbsp;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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selected citations
These citations are derived from selected sources.
This is an alternative to the "Influence" indicator, which also reflects the overall/total impact of an article in the research community at large, based on the underlying citation network (diachronically).
BIP!Citations provided by BIP!
popularity
This indicator reflects the "current" impact/attention (the "hype") of an article in the research community at large, based on the underlying citation network.
BIP!Popularity provided by BIP!
influence
This indicator reflects the overall/total impact of an article in the research community at large, based on the underlying citation network (diachronically).
BIP!Influence provided by BIP!
impulse
This indicator reflects the initial momentum of an article directly after its publication, based on the underlying citation network.
BIP!Impulse provided by BIP!
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Average
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