Christian Burset retweeted
A new episode of Law Office History! We speak with @cburset about his piece "The Origins of Statutory Stare Decisis." Learn how "common error makes law" (or does it?) & how Parliament made badly written laws that hardly anyone could read anyway. Plus Law French translation tips.
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Christian Burset retweeted
In 2009, we published “Original Methods Originalism: A New Theory of Interpretation and the Case Against Construction.” Our new paper, “The Constitution’s Own Interpretive Method: Advancing the Original Methods Approach,” develops and improves the theory. Link below.
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Very much worth reading. The interaction of procedure and stare decisis is understudied but quite important. pennlawreview.com/2026/10/24/pre…
The Supreme Court's new Term is in full swing, raising the familiar problem of precedent: When and why should today's Supreme Court overrule decisions of yesterday's Supreme Court?
My latest article, just published in the @PennLRev, examines this problem from a new lens. It shift a century ago from mandatory to discretionary jurisdiction destabilized several procedural protections that existed against the abuse of precedent. With those procedural protections gone, the Justices have been forced to rely instead on the unsatisfying balancing test they use today.
While returning to full mandatory jurisdiction is not practical, I offer targeted reforms that can restore some of the procedural protections that used to guide courts’ treatment of precedent.
Link in the comments.
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E.g., Judge Oldham has argued for precedent as a "scatterplot"—each decision is a data point, and judges draw the trend line. How well that metaphor works depends on the number of cases. (Many more data points at the courts of appeals than at SCOTUS.) youtube.com/watch?v=NL2r97…
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Christian Burset retweeted
New @IJ podcast! “Law Office History.” We talk to legal history scholars about their recent work & how it relates to the law today. First up, our old friend @WilliamBaude! We discuss “General Law & the 14th Amendment,” which he coauthored with @StephenESachs & Jud Campbell. 1/
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Christian Burset retweeted
This paper explores why general law repeatedly emerges across #legalsystems. The authors argue that it often appears as a solution to gaps in existing law, serving as temporary legal scaffolding until more specific regimes develop. spkl.io/60107OT62
#LegalTheory
#LegalTheory
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New draft paper with Sam Bray (@UChicagoLaw): "Why General Law?" Abstract here; link below.
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FW Maitland wrote that “training in modern law is almost indispensable for any one who wishes to do good work on legal history.” That’s plainly wrong— even Maitland said “almost”—but it captures the longstanding reality (1/7)...
Interesting question, but not obvious to me what the answer is. I've often looked to 18th century law in my work, and wondered about what formal academic training in history might help me. But my tentative answer is that a lot of the kind of legal history that U.S. legal academics are interested in (in my case, at least, it's often about the legal world, assumptions, and doctrines of the 18th century) is a sort of overlooked intersection between law and history for which it's difficult to get formal academic training.
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Since the 1970s, the field of legal history has exploded in US law schools. But the growth has largely been in US and (to a lesser extent) global legal history, rather than in areas like the ones Orin mentions in his post. 6/7
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Query whether that's sustainable as SCOTUS and other courts increasingly demand Maitland-style legal history, in addition to the "ordinary" legal history that people trained in US history departments tend to produce. (7/7)
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Interesting perspective on written vs. unwritten law in 18th-century England, in the context of local government and election disputes
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Source: K. Costello, Quo Warranto and the Borough Office Holder, 1700–1792, in Law and Constitutional Change 122 (McCormick, Capper & Dawson eds., 2025), cambridge.org/core/books/law…
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Prof. John V. Fleming died last week, age 90. Requiescat in pace. As he once told our class, he approached academia almost like a religious vocation, and it showed. (He was married to an Episcopal priest, so he didn't make the comparison lightly.) A short thread in his honor:
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19 years ago today, he gave a memorably excellent baccalaureate address to my graduating class. It's still worth reading, and not only because it gives a good sense of his unique combination of levity and gravity: princeton.edu/news/2007/06/0…
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He was a columnist for the student newspaper. After retiring, he kept it up at this delightful blog: gladlylernegladlyteche.blogspot.com. I'm sorry there won't be any more posts. But I hope he will now enjoy the company of the "hooly blisful martir" to whom he introduced so many students.
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