Mistakes matter in law, even the smallest ones. What would happen if a small but substantively meaningful typographical error appeared in the earliest published version of a U.S. Supreme Court opinion and remained uncorrected for several decades in versions of the decision published by the two leading commercial companies and in several online databases? And what would happen if judges, legal commentators, and practitioners wrote opinions, articles, and other legal materials that incorporated and built on that mistake? The phenomenon of reproducing mistakes matters in a legal system whose lifeblood is words and that heavily relies on the principle of stare decisis.
Some will remember when spelling and grammar mattered. That was before spell check and JDI with their frustrating algorithms and punctuation errors were foisted on unsuspecting judges, a justice of the US Supreme Court issued an opinion with one tiny mistake that would have large and lasting consequences. Justice Pierce Butler wrote the word “property” when he meant to say “properly”.
This single-letter mistake, later quietly corrected by the court, has been repeated in text books, in legal databases and in dozens of state and federal cases, according to Michael Wolf, a law professor at the University of Florida, in a paper titled A Reign of Error.
Though most cases were unaffected, “in other instances, courts, relying at least in part on this still uncorrected error, have rendered substantive opinions that expand property rights protection at the expense of sensible land use regulations,” Wolf writes.
Butler made the mistake in a “slip opinion” in 1928, relating to a dispute on building regulations. “The right of the trustee to devote its land to any legitimate use is property within the protection of the Constitution,” he wrote. “Slip” opinions are akin to drafts that set out the court’s consensus on a matter but are subject to further editing. Until six years ago, when the court began listing its revisions, the changes were not announced.
Using property for properly “gave an additional argument to the property rights movement,” Wolf told The New York Times. “It supports the almost commonly held notion that you have a right to do on your property what is reasonable. That’s not the way it works. The government has the right to place reasonable restrictions on your use of property. I know it’s subtle, but that’s a big difference.”
Sew, pleas, chuck, yearn, judge mental car filly!!
References:
(Wolf, Michael Allan, A Reign of Error: Property Rights and Stare Decisis (2021). 99 Wash. U. L. Rev. 449 (2021), University of Florida Levin College of Law Research Paper Forthcoming, Available at SSRN: https://ssrn.com/abstract=3942821)