Research Matters: Jonathan Masur on "Deference Mistakes"
Research Matters is a regular feature in which a member of the faculty talks about some of his or her latest work and its impact and relevance to law and society.
Professor Jonathan S. Masur wrote “Deference Mistakes” with Lisa Larrimore Ouellette, now an assistant professor at Stanford Law School. The paper reveals and examines errors courts make when they mistakenly rely on precedent without fully accounting for the legal and factual deference regime under which the precedent was decided. The piece grew out of an exchange Masur and Ouelette had when she was an articles editor at the Yale Law Journal and replying to a paper he’d written on patent law. He found her reply impressive, reached out — and saw the potential for collaboration.
Q. Why did you write about deference mistakes?
A. We came to it through patent law. With patent law, courts can be adjudicating the same questions under different legal standards depending how those questions arrive in front of the court. The canonical example from the article is this: If you file for a patent in front of the Patent and Trademark Office, and they reject you, you can appeal that decision to the federal courts, which will consider the question de novo. In that case, it’s a preponderance-of-evidence standard: it’s just “are you entitled to a patent?” There’s no presumption either way. But, on the other hand, let’s say you apply for a patent, and it’s granted, and then you sue somebody for infringing the patent — and that person argues that your patent is invalid, that you were never entitled to it. The courts, when they adjudicate the question under those circumstances, have to presume the patent is valid. They can only hold it invalid if there is clear and convincing evidence, which is a higher standard.
What struck us is that the courts were mixing up these cases left and right. We saw lots of examples in which the court would say, “We have to presume this patent is valid, so we hold that it’s valid” — and then turn around in a case in which they didn’t have to presume it was valid and say, “Well, that patent was valid, so this patent must be valid as well.” That struck us as a significant misuse of precedent. So, we began to wonder whether there were other areas of law where courts end up considering the same question under two different types of legal standards. The answer is: there are lots of them.
Q. Where else does this happen?
A. One of the other areas we looked at was criminal law. A case might involve a constitutional question such as: Did police have probable cause to search your car? In the normal course of a trial there is no presumption either way, but if you’re suing the police for damages or asking for habeas relief there’s a heavy presumption that what the police did was OK. In the context of damages and habeas, you can only win if you show that what the police did was clearly and unequivocally wrong. It’s a problem if the courts say, “If the conduct was allowed in this habeas case, it’s allowable in the course of this normal trial.”
Q. What are the consequences of these errors?
A. If these examples are allowed to propagate, they can lead to real errors in the law over the long term. Once a court has made the mistake, it has created new law, and now that new law is enshrined in precedent. It is going to have influence on future cases.
Q. The paper cites some possible reasons for the errors — including the ease of electronic search, growing reliance on law clerks, larger judicial caseloads, and longer opinions — that suggest this is a newer, or at least growing, problem. Is that the case?
A. We don’t know for certain because we haven’t gone back and counted the number of these mistakes over time, but for all those reasons we think that this a growing problem. I think electronic research is one of the clearest examples. If you were to sit down with a case and read it from start to finish, you would know the context in which the case was arising, and so you would see the applicable legal standard. Whereas if you have an electronic legal document on your computer and you just click a link that takes you to a particular section of it, you miss the context, you miss the legal standard. It becomes that much easier to take a quote out of context. So, yes, we think it is probably a more recent phenomenon, and by recent, we mean the last 15 or 20 years.
Q. Yours is the first paper to explore this issue. Why wasn’t it identified earlier?
A. We only happened on this idea because we were thinking very carefully about patent law, and we were thinking about it from a particular angle that others hadn’t explored. It’s the sort of thing that doesn’t really occur to people in the abstract. Also, we’re talking about courts making mistakes — plain old mistakes. Not, “I disagree with how they read this precedent,” or “I disagree with how they reasoned to that conclusion.” It’s not a small thing to accuse a court of a making that type of mistake, I suppose. It might be that in the past it was crazy to accuse a court of such an error. Now we’re a little more realistic about the fact that courts are made up of human beings, and now it’s more socially acceptable or intellectually feasible to say that courts might be making these types of errors. Also, it might be that this is a more recent phenomenon.
Q. How can these errors be prevented?
A. Some of the solutions we propose are things you might teach in a first-year legal writing and research class. One example: every time you cite a case, you should have to put in parentheses the legal standard that was applied in that case. Creating that kind of legal norm would go a long way because it would make very salient for judges that they, for instance, are deciding a case in which there’s no presumption either way, but citing a case in which there’s a heavy presumption. They can think clearly about that difference before they use that precedent.
Q. What comes next?
A. What this paper shows is there could be a whole family of mistakes related to courts taking legal ideas out of context. We’ve identified one of those types of mistakes, but I think there is a real opening for us, or others, to look into other ways in which courts might intentionally or unintentionally be taking precedents or other ideas out of context and examine the effect that might have on law.