U.S. Supreme Court

Typo in 1928 Supreme Court opinion created 'reign of error,' law prof says

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A tiny typographical error in a 1928 U.S. Supreme Court opinion had a big impact after it was picked up in subsequent opinions and used to bolster arguments for property rights, a law professor has found.

Michael Allan Wolf, a professor at the University of Florida Levin College of Law, called the mistake a “reign of error,” the New York Times reports.

The initial slip opinion mistakenly substituted the word “property” for “properly.” The sentence, as incorrectly published, read, “The right of the trustee to devote its land to any legitimate use is property within the protection of the Constitution.”

The corrected version was published in hard copy in a set of case books called the U.S. Reports, in which the opinions of the Supreme Court are published officially. It read: “The right of the trustee to devote its land to any legitimate use is properly within the protection of the Constitution.”

But the incorrect version lived on. It was repeated in at least 14 court decisions, in at least 11 appeals briefs, in a Supreme Court argument, and in books and articles, according to the New York Times.

Wolf traced the history of the error in an article that will be published in the Washington University Law Review. He told the New York Times that the change affected the meaning.

The wrong version of the sentence “supports the almost commonly held notion that you have a right to do on your property what is reasonable,” he said. But “the government has the right to place reasonable restrictions on your use of property,” he said.

Wolf said it’s impossible to know whether the error had an impact in cases that cited it.

“We’ll never know the answer to that,” he told the New York Times. “Though if we have judges who favor the private property owner at the expense of the government, I think it could be more than just icing on the cake.”

The Supreme Court didn’t note corrections until 2015, when it began revealing them on its website, according to the New York Times.

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