Law Office History

Institute for Justice

Law Office History digs into the latest in legal history scholarship as it relates to the defense of the classical liberal legal order. Institute for Justice attorneys interview legal history scholars on their latest work exploring the law of the past and how it relates to our future. From the crafting of the Constitution to the mysteries of the common law to the convulsions of the twentieth century, Law Office History brings law and history together. Attempting to bridge divides in the legal history world, we support scholarship that avoids cherry picking sources while also understanding that the past belongs to all of us: lawyers, historians, law professors, judges, and the public.

Episodes

  1. 13h ago

    Can Common Error Make Law? Christian Burset

    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

  2. Oct 6

    Will Baude and the General Law

    For our maiden voyage on “Law Office History” we welcome aboard Will Baude of the University of Chicago. After exploring his heady days as an Institute for Justice summer clerk we venture into the arguments he, Jud Campbell, and Steve Sachs made in the pages of the Stanford Law Review a couple of years ago: that the framers of the Fourteenth Amendment wrote it with the “general law” in mind, especially the rights that “law” was understood to protect. Will sets the stage with the well-understood history of the general law and the world of Swift v. Tyson. But then he explains how that not only included common law rules of things like torts and contracts but rights that Americans possessed against their governments. He and his co-authors’ provocative claim is that these rights could be enforce in federal court before the Fourteenth Amendment but because of the courts’ limited jurisdiction these issues only came up sporadically. Thus, the Fourteenth Amendment did not make those rights constitutional rights per se but rather provided a new venue—federal courts—in which they could be enforced against the states. This makes sense, goes the argument, of some contradictory things said at the time of the Amendment’s adoption. Various other topics arise. Your host challenges Will a bit on the differences between these general law rights and state constitutional rights and whether one might be being mistaken for the other. The also discuss how—if Will, Jud, and Steve are right—we should interpret the Fourteenth Amendment today, now that Erie has consigned the general law to the ash heap of history. (Or has it?) In addition to the article, the conversation also addresses the ongoing rumble between originalist law professors and history-department historians on what questions we should be asking when we engage with legal history. That’s a subject that’s sure to come up on future episodes. Your host then closes with a few words about why IJ is launching yet another podcast. Click here for transcript. General Law and the Fourteenth Amendment Swift v. Tyson Tradition, Originalism, and General Fundamental Law Erie Railroad Co. v. Thompkins

  • 2 Episodes

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About

Law Office History digs into the latest in legal history scholarship as it relates to the defense of the classical liberal legal order. Institute for Justice attorneys interview legal history scholars on their latest work exploring the law of the past and how it relates to our future. From the crafting of the Constitution to the mysteries of the common law to the convulsions of the twentieth century, Law Office History brings law and history together. Attempting to bridge divides in the legal history world, we support scholarship that avoids cherry picking sources while also understanding that the past belongs to all of us: lawyers, historians, law professors, judges, and the public.

Information

  • Creator
    Institute for Justice
  • Years Active
    2026
  • Episodes
    2
  • Rating
    Clean
  • Copyright
    © Institute for Justice
  • Show Website
    Law Office History

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