When courts admit their mistakes

I’ve been reading and very much enjoying Richard Lazarus’s forthcoming article on the Supreme Court’s practice of quietly making corrections to its opinions. (Here is Jonathan’s earlier post, here is Adam Liptak, and here is Richard Re’s post on the more general phenomenon of Supreme Court fallibility.) It’s fascinating stuff, and of course as a close follower of the Court, I was interested to learn about a lot of the specific errata.

One widespread reaction to the phenomenon has been a call for greater transparency. That is Lazarus’s prescription and I see it on Twitter and various blogs as well. I am a little more skeptical. My fear is that if the Court’s practices required it to be transparent about every minor mistake it corrects in its opinions, it would correct fewer of them.

Obviously some mistakes are either so trivial that nobody will care about them, or so major that there is no way to avoid changing them, but a lot fall in between: a contested factual assertion that is likely, but not definitely, wrong; an unclear referent or overly categorical claim; a missing citation. It seems to me to be a good thing when the Court makes those corrections, but I think there is a serious risk that it would stop if every change become the occasion for a blogospheric circus.

That’s a second-best claim, of course, analogous to my more substantive fears about wrongful convictions. But I do think that we should remember that given our actual institutions, transparency has costs, not just benefits.

Will Baude is an assistant professor at the University of Chicago Law School, where he teaches constitutional law and federal courts. His recent articles include Rethinking the Federal Eminent Domain Power, (Yale Law Journal, 2013), and Beyond DOMA: State Choice of Law in Federal Statutes, (Stanford Law Review, 2012).



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