Suppose a court holds in the context of a habeas petition that a constitutional right is not yet “clearly established.” Can we conclude from this that the right does not exist? The answer, of course, is “no”—it would be error to treat this case as having held that there is no such right. Yet in case after case, across multiple areas of law, judges (and their clerks) make precisely these types of “deference mistakes”: they rely on precedent without understanding the standard of review or burden of proof that governed that precedent. That includes the particular mistake described here: courts regularly rely on precedents holding that a constitutional right was not “clearly established” to conclude that the right does not exist. Nor is the problem confined to individual cases. Deference mistakes can propagate over time, leading to systematic shifts in legal doctrine.
Jonathan Masur is the John P. Wilson Professor of Law, David and Celia Hilliard Research Scholar, and Director of the Wachtell, Lipton, Rosen & Katz Program in Behavioral Law, Finance and Economics.
Presented on January 12, 2016, as part of the Chicago’s Best Ideas lecture series.