My new paper, “Narrowing Precedent in the Supreme Court,” is now posted online. (Thanks to LTB for publicizing it!) The basic idea is that the Supreme Court frequently narrows its precedents, including in “liberal” directions, and that doing so is often both legitimate and desirable. In this post, I’d like to make a prediction: in the near future, we are going to see a lot of narrowing in the area of digital surveillance and the Fourth Amendment.
This week, I’ve been posting on the evolving connection between circuit precedent and “clearly established law” in both qualified-immunity and AEDPA cases. To round out the discussion, this post discusses related issues posed by a third doctrine: the good-faith exception to the exclusionary rule. Appropriately enough, the circuit courts themselves have recently had interesting things to say about circuit precedent in this area. The upshot is a remarkable convergence between qualified immunity and a rapidly growing exception to the exclusionary rule.
Already, “clearly established” law is a clearly established theme of this term’s summary reversals. I’ve been posting on recent qualified immunity cases, including the summary reversal in Carroll v. Carman. Yesterday’s summary reversal, Glebe v. Frost, is an AEDPA case that touches on similar issues–with the significant difference that AEDPA expressly focuses on clearly established Supreme Court precedent. (Many thanks to Ronald Mann for pointing out this aspect of Glebe.)
I recently posted on Carroll v. Carman, which assumed arguendo that circuit precedent could constitute clearly established law. My earlier post discussed some of the case law raising this important and fascinating issue.
In this post, I’ll discuss whether it makes sense for circuit law to deprive officers of qualified immunity.
In Carroll v. Carman, one of this week’s summary reversals, the Supreme Court held that officers violated no clearly established federal law in conducting a “knock and talk” and so were protected by qualified immunity. Almost as an aside, the Court assumed arguendo that circuit law could constitute clearly established law. In other words, the Court reserved the possibility that officers could defy on-point circuit precedent and still retain qualified immunity. This issue is both important and fascinating.
In this post, I’ll assess relevant cases to shed light on how the doctrine reached its current shape and where it might be going. In my next post, I’ll discuss whether the apparent trend in qualified immunity doctrine makes sense.
An interesting theme unites three apparently unrelated cases that I’ve previously blogged about: an obstruction of justice prosecution (Yates), a removal case that poses a riddle of statutory jurisdiction (Dart), and the Sixth Circuit’s recent decision upholding same-sex marriage laws (DeBoer). In short, all three cases implicate the Supreme Court’s ability to send non-precedential signals to lower courts.
Just days after the midterm elections, we have received two politically salient judicial decisions. The first was the Sixth Circuit’s decision upholding same-sex marriage laws. The second was the Supreme Court’s decision granting certiorari in King, a new challenge to implementation of the Affordable Care Act. If these decisions had come out a week earlier, they could well have become part of late-phase campaigning. Maybe the timing here was a coincidence—certainly many more improbable coincidences happen every day—but it still raises an interesting question: should federal courts time their decisions so as to avoid becoming subjects of last-minute electioneering?