The Supreme Court has vacated the judgments and remanded Patrick v. Smith, 130 S.Ct.1134 (2010) and McDaniel v. Brown, 130 S.Ct. 665 (2010). In both cases the Ninth Circuit used the wrong legal test. Patrick v. Smith was reviewed in this Blog on March 5, 2008. McDaniel was reviewed on February 3, 2009. The Supreme Court spared no mercy on the Ninth Circuit and severely criticized that court for ignoring the law.