Cite as: 522 U. S. 398 (1998)
Stevens, J., dissenting
opinio is of good authoritie in law." 4 1 E. Coke, Institutes 186a (15th ed. 1794).
Accordingly, I respectfully dissent.
421
4 The majority's invocation of the maxim communis error facit jus adds little weight to their argument. As Lord Ellenborough stated in Isher-wood v. Oldknow, 3 Maule & Selwyn 382, 396-397 (K. B. 1815):
"It has been sometimes said, communis error facit jus; but I say communis opinio is evidence of what the law is; not where it is an opinion merely speculative and theoretical floating in the minds of persons, but where it has been made the ground-work and substratum of practice." See also United States v. The Reindeer, 27 F. Cas. 758, 762 (No. 16,145) (CC RI 1848).
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