Daily Archives: September 29, 2016

“Extremely Complicated”

Or, say, “analytically complex”.  Take your pick.

We are discussing, of course, the upcoming argument in Manuel v. City of Joliet.  And we are quoting from SCOTUS Blog’s write up about the whole thing.

Indeed this is, as the Brits were wont to say, a “sticky wicket”.  You have an area of constitutional law that is very confused, commanding pages and pages of dissertation in a recent 5th circuit case that for some reason none of the parties or amici in Manuel even cite.  Then you have statute of limitations problems, because Wallace v. Kato, one of the late Justice Scalia’s more unfortunate contributions.  Then you have state-federal court “tensions” and the Parratt doctrine.

Why, oh why, did the SCOTUS ever take up Manuel, a 1983 case out of the 7th circuit, when the cause of all these problems was another 1983 case out of the 7th circuit, namely Albright v. Oliver?  Maybe this is more of a “vehicle” problem than anything else.


Our offering for this morning is simply this:  we need to return to the basic constitutional issue here, uncluttered by issues of immunity, civil liability, statutes of limitation, accrual of causes of action, arrest v. “detention pursuant to legal process”, Parratt doctrine abstention, Younger abstention, 1983 this, 1983 that, Buckley v. Fitzsimmons (Egad another messed up 7th circuit 1983 case).  We think that when we finally focus on the constitutional issue simpliciter the formerly obvious principle – that “due process” applies to the entire process by which criminal convictions are obtained – will be restored to its rightful place in the firmament of constitutional adjudication, and this ultimately mindless parsing of that process into arbitrarily designated segments so that officials can be held liable for their perfidious and criminal conduct* – or then again not held so liable, which is more often the point – will be cast into the intellectual waste-bin where it belongs.

But obviously, the Manuel case is not going to accomplish any of that, and we’ll be lucky if it doesn’t make matters worse.

Considerably worse.  Ugh.

*Among the fundamentally misguided aspects of Manuel is this:  that they’re all trying to fit truly malevolent and criminal official conduct like suborning perjury and fabricating evidence into the 4th amendment’s proscription of “unreasonable” official conduct.  It’s a category error.  Meh.

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