This Symposium, on the recent Supreme Court Term’s criminal procedure jurisprudence, illustrates these complexities. Of the five “cases” discussed here, three come out in a “liberal” direction and two come out in a “conservative” direction. Nor do the results merely stem from Justice Kennedy’s swing vote (though he was in the majority in all of these cases); one of the “liberal” cases was decided by a majority of seven Justices, and one of the “conservative” ones was decided by a majority of eight. Looking at these cases together is a good way of reminding us to be wary of simplistic generalizations about either the trajectory or the partisanship of the Supreme Court’s thinking on criminal procedure. Minneci is somewhat harmful to federal inmate litigants in that it removes a potentially useful cause of action, and it may have been wrongly decided as a matter of Bivens doctrine. However, I argue here that it’s probably not nearly as harmful as some have charged, once one takes into account how hard it is to sue public prisons and how relatively generous are the tort-law regimes that govern private prisons.
"The Modest Effect of Minneci v. Pollard on Inmate Litigants,"
Akron Law Review: Vol. 46
, Article 1.
Available at: http://ideaexchange.uakron.edu/akronlawreview/vol46/iss2/1