At Divided Argument, Will Baude: A Scholarly Roundtable on History and Practice (with Christian Burset, Jonathan Green and Ryan Snyder). From the introduction:
[Will Baude:] I’ve been very interested in a recent round of scholarship on history and tradition in legal interpretation, and I hosted a written roundtable discussion with the authors of three of the best pieces. Christian Burset is a professor of law at Notre Dame Law School and the author of The Origins of Statutory Stare Decisis; Jonathan Green is an associate professor of law at Sandra Day O’Connor College of Law at Arizona State University and the author of Some Traditional Questions about “History and Tradition”; and Ryan Snyder is an associate professor of law at University of Missouri School of Law and the author of Historical Practice at the Founding. Our conversation ensues below.
Will: Gentlemen, thanks for sitting down with me today to talk about your work! Before we get into points of agreement and disagreement, can I start by asking each of you to summarize the core contribution of your article in a sentence or two?
Jonathan [Green]: Thanks for having us Will, and sure. My paper is about the role that custom played in delimiting the scope of fundamental rights at common law in the eighteenth-century English courts. One of my central claims – perhaps most relevant for our discussion today – is that where a statute codified a fundamental, preexisting right in writing, that statute didn’t change the right’s character, which meant that if the right’s outer limits were defined by some body of custom or practice before the statute’s passage, then they were after too. If that’s right, and if parts of our Constitution were declaratory of preexisting customary rights, then presumably for an originalist post-enactment practice would be relevant for locating the limits of those rights today. At the same time, how interpreters were supposed to read the customary law – what “tradition” was, where it was to be found, and so on – became contested across the late-eighteenth century, and so my piece gets into some of those interpretive and jurisprudential puzzles too.
Christian [Burset]: Thanks to Will for organizing this, and to Ryan and Jonathan for joining. My article asks how common-law courts traditionally handled erroneous statutory precedents. (In other words, when courts or other actors interpreted a statute incorrectly, what should later courts do about that?) I argue that Founding-era courts in England and the United States were sharply divided on that score. Some judges adhered to a maxim, communis error facit ius (“common error makes law”), that effectively allowed a course of precedent to amend a statute. But other courts adopted a more textualist position, insisting that precedents could clarify but never alter a statute’s original meaning. My article is primarily a work of legal history, but it also offers some suggestions for how this history might influence how we think about statutory stare decisis today.
Ryan [Snyder]: Thanks Will, it’s great to be here with Christian, Jonathan, and you. My article examines how Founding-era courts used historical practice—that is, the actions that people take to implement or comply with a law after its adoption. The basic claim is that courts used historical practice as a tool for discovering the law’s original meaning, rather than a tool for updating the law over time.
Will: Thanks! I see a lot of overlap and common ground between these articles – that historical practice and the common law were an important part of legal interpretation at and before the Founding. But I also notice some differences in emphasis and maybe disagreements about exactly what to make of the history. Ryan, broadly speaking I see you as the most skeptical about giving a role to historical practice that might be inconsistent with what we would otherwise read the text to do; and Christian, I see you as perhaps finding the most potential room for practice; Jonathan, I see you as sort of in between. Do I have that right?
…
(Via Legal History Blog.)
Posted at 6:14 AM