The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


Always remember: Supreme Court's denials of certiorari do not make the decision below 'the law of the land'


Statements such as,

More specifically, The United States Supreme Court denied certiorari when the State of Illinois appealed the 7th Circuit's decision [Alvarez] declaring Illinois' wiretapping law unconstitutional as applied to video-recording police officers in public; therefore, Alvarez, not Migut, is the law of the land.

draw responses from judges such as,

I remind Plaintiff that Alvarez is not the law of the land, as he asserts. Students of first-year civil procedure should know that "denial of certiorari does not indicate any view on the merits."

Bacon v. McKeithen (N.D. Fla. Aug. 28, 2014). When the judge feels annoyed enough to drop a footnote like that, it means you've lost a good deal of credibility.

Note, though, that in my experience the effect of denials of certiorari isn't taught in first-year civil procedure, since it isn't a matter of civil procedure as such. Lawyer and law student readers: When did you first learn about it?