Christian Burset

Professor @NDLaw. Author of An Empire of Laws: Legal Pluralism in British Colonial Policy (Yale University Press, September 2023).

[Christian Burset @cburset]

@PJSobkowski One of the greatest, to be sure! (Though I hesitate to call anyone the greatest historian of anything—by what criteria could we reasonably rank him vs. Bailyn, for instance? Both were enormously important!)

[Christian Burset @cburset]

He was a columnist for the student newspaper. After retiring, he kept it up at this delightful blog: https://t.co/qp7VJmN9SQ. 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.

[Christian Burset @cburset]

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:

[Christian Burset @cburset]

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: https://t.co/gxX6R8ASZK

[Christian Burset @cburset]

@RickPildes A friend also flagged this book, which I haven't read, but which seems to tell a different story https://t.co/1mbH0cQm0O

[Christian Burset @cburset]

What's the best recent account of why (or in what sense) the Framers failed to anticipate parties? 18th-century Britain and its colonies had intense partisan conflict. Hume saw party as a central problem of political theory; Burke affirmatively defended the goodness of party.

[Rick Pildes @RickPildes]

Appreciate this recognition in @adamliptak's NYT deep dive into how the presidency came to be such a different institution than the Framers envisioned:

"But [the Framers] failed to anticipate a development that would make impeachment improbable: the rise of political parties.

The classic account of this constitutional blind spot is “Separation of Parties, Not Powers,” a 2006 article in The Harvard Law Review by Daryl J. Levinson and Richard H. Pildes.

“To this day, the idea of self-sustaining political competition built into the structure of government is frequently portrayed as the unique genius of the U.S. Constitution, the very basis for the success of American democracy,” they wrote. “Yet the truth is closer to the opposite.”

“As competition between the legislative and executive branches was displaced by competition between two major parties,” they added, “the machine that was supposed to go of itself stopped running.”

Links in reply

[Christian Burset @cburset]

@RickPildes Thanks! My inquiry was prompted, in part, by interest in whether those canonical accounts (from 1960 and 2002, respectively) hold up in light of more recent work on the history of partisanship. (Maybe they do!) https://t.co/lK4hpmx1Mc

[Christian Burset @cburset]

This isn't a critique of Levinson & Pildes, whose 2006 article was consistent with standard account of early U.S. history. But I wonder whether that story needs updating in light of recent work on the history of party by @MaxSkjonsberg , @PincusSteven , Amy Watson and others.

[Christian Burset @cburset]

This isn't a critique of Levinson & Pildes, whose 2006 article was consistent with standard account of early U.S. history. But I wonder whether that story needs updating in light of recent work on the history of party by @MaxSkjonsberg , @PincusSteven , Amy Watson and others.

[Christian Burset @cburset]

See, e.g., this remembrance by his former clerk @RickGarnett: "We had cheeseburgers and beer ('Miller’s Lite,' he called it) together regularly, and he allowed himself one cigarette with lunch." https://t.co/HwMje8hdEi

[Christian Burset @cburset]

This message brought to you by Chief Justice Rehnquist.

[Tyler Austin Harper @Tyler_A_Harper]

Miller Lite is the thinking man’s beverage of choice

[Christian Burset @cburset]

@Unlearned_Hand Also, in the vast majority of cases that went to trial, the dispute was only about the facts, not the law. Cf. Blackstone: "experience will abundantly show, that above a hundred of our lawsuits arise from disputed facts, for one where the law is doubted of."

[Christian Burset @cburset]

Also a striking stat re juror nullification: according to a poll cited in the article, 65% of juror-eligible adults "w]ould follow conscience or personal beliefs over the law." The framing is interesting, at least to a historian: (1/2)

[Christian Burset @cburset]

"a postpandemic erosion of trust in the justice system, more rigid viewpoints and starker political divides ... have made it harder for 12 strangers to even get along, much less agree". I'd be interested to see scholarship that considers that claim. https://t.co/VLzF2A6vMY

[Christian Burset @cburset]

@Unlearned_Hand If that regime had persisted, then a court could have challenged a jury’s evidentiary finding, even when the jury had (officially, at least) made no legal determination).

[Christian Burset @cburset]

@Unlearned_Hand The court and the jury might agree on the law but take divergent views of the weight of the evidence.

[Christian Burset @cburset]

@Unlearned_Hand One reason is that, as a matter of black-letter law, jurors today have no right to determine the law's content for themselves. See, e.g., U.S. v. Thomas, 116 F.3d 606 (2d Cir. 1997) (Cabranes, J.). Another is that sufficiency of evidence is distinct from deciding the law:

[Christian Burset @cburset]

@RichardLJolly (You cover some of this in the article, of course. Making a note to discuss it in my legal history lectures!)

[Christian Burset @cburset]

"a postpandemic erosion of trust in the justice system, more rigid viewpoints and starker political divides ... have made it harder for 12 strangers to even get along, much less agree". I'd be interested to see scholarship that considers that claim. https://t.co/VLzF2A6vMY

[Christian Burset @cburset]

@RichardLJolly Fascinating--thanks for flagging it! I suppose juries have often been partisan (see, e.g., the verdict leading to Bushel's Case; colonial juries refusing to enforce customs laws). Perhaps this is an unfortunate reversion to the mean?