When Inadvertent Errors Change The Law

In a recent post I suggested that the Connecticut Supreme Court had misinterpreted one of its own cases and then incorporated that mistake in a recent decision, thereby perpetuating what I believe was an unintended change in the law concerning judicial deference to an administrative agency’s interpretation of its own regulations.

Rick Hasen, writing over at Election Law Blog, has an interesting post on the more general problem of inadvertent mistakes that change the law.  He writes:

But consider another kind of mistake: where a Court opinion mischaracterizes the law in a way that changes the law in a major way, perhaps through inadvertence. That’s what happened with a case on the standard for permanent injunctions a few years ago, eBay v. MercExchange.  This kind of error is much more serious than the kind of error Justice Scalia made, which changed neither the holding of a case nor the standards lower courts would apply to a legal issue.  The error I described has changed the law in profound ways, and the Court has never acknowledged that it might have resulted from an error.

Hasen goes on to explain how he thinks the Supreme Court made the error at issue in the eBay case (in which the Court erroneously applied a test for preliminary injunctions to permanent ones).  Everyone–from the all-star cast of litigators, to the justices and their law clerks-bore responsibility.  Perhaps more important, however, are the consequences of the mistake:

But Court inadvertence takes on a life of its own. The eBay test has now been cited and applied by numerous lower courts, and the Court recently reaffirmed it as the “traditional four-factor test” last term in Monsanto Co. v. Geertson Seed Farms. “And once again the Court appeared oblivious to any difference between permanent and preliminary injunctions.”

I hate to say this, but I think this problem is more common than judges and lawyers care to admit.  All of us–judges, clerk and lawyers–need to very careful to avoid changing the law through inadvertence.