Friday, March 06, 2009

Sue Yoo

There is an interesting article about a lawsuit against John Yoo, and how Obama might respond, over at Politico.



Anonymous Anonymous said...

Agreed, the article is interesting. You have to give us some analysis, however. That is what people come here for and that is the difference between the great blog nuts and boalts has always been, and the lame blog it is becoming (Patrick's post on Prop 8 being an exception to the recent trend).

I don't intend that in a mean way, by the way. It is constructive criticism from a loyal and longtime reader.

3/06/2009 10:59 AM  
Blogger Dan said...

Fair enough. I was in a bit of a hurry this morning, and didn't want to get into the weeds with the Yoo stuff. Just thought it was worth sharing. I think you'll find analysis in most of my posts.

3/06/2009 12:26 PM  
Blogger Matt said...

Went and saw oral arguments this morning. My sense is that Padilla has enough to survive at the 12(b)(6) stage (since the court assumes that all his allegations are true). Summary judgment seems like it may be a different story, however.

3/06/2009 12:28 PM  
Blogger Mike said...


Can you explain more? What are the outstanding factual issues? Weren't the memos attached to the complaint? What allegations is he Padilla relying on that he will have difficulty proving?

3/06/2009 1:03 PM  
Anonymous Anonymous said...

I don't understand the last paragraph of the article. Why is Yoo suing other government officials? Background please.

3/06/2009 2:33 PM  
Blogger Matt said...

I have a very limited knowledge of the case, because I haven't read any of the papers (nor the bench memo that the judge is going off of). That said, I gather that Padilla's complaint alleges that Prof. Yoo intentionally misrepresented the law (when he knew the representations he was making were inaccurate statements) and that those misrepresentations directly resulted in Constitutional harms to Padilla.

The government's legal argument seems to be something to the effect of: "the law was unsettled in this area prior to Hamdi, and therefore whatever representations Yoo made cannot be categorized as 'misrepresentations.'" Padilla's counter is something along the lines of: those rights existed prior to Hamdi, and the government cannot just make up new legal designations - i.e., "enemy combatant" - to temporarily take away the rights of U.S. Citizens until there is a SCOTUS ruling that the rights apply to those individuals, too. The rights, according to Padilla, exist for all U.S. Citizens both before and after any SCOTUS rulings.

Everything else appeared to be arguments regarding factual allegations that Padilla makes with respect to various unreleased memos - allegations that the court must take as true at this stage.

That's a rather scant and simplified summary of what I got out of it.

3/06/2009 5:38 PM  
Blogger caley said...

2:33, I think that was a typo. I think it should have been "Padilla also filed a similar suit in South Carolina . . . ." Which is where he was detained.

3/06/2009 6:06 PM  
Blogger Patrick said...

That would make sense. Padilla lost his first go-around with the Supreme Court, on jurisdictional grounds. They said he should have filed in South Carolina. If that happened to me I'd file there, too.

3/06/2009 6:08 PM  
Blogger Dan said...


3/07/2009 11:49 AM  
Anonymous Anonymous said...

MPRE thoughts post?

3/07/2009 4:47 PM  
Anonymous Anonymous said...

My sense is that Padilla has enough to survive at the 12(b)(6) stage (since the court assumes that all his allegations are true). Summary judgment seems like it may be a different story, however.

I'm not sure how you can assess Padilla's chances of getting past SJ until/unless he gets discovery.

3/07/2009 8:37 PM  
Anonymous Anonymous said...

8:37--I think Matt's point is that there is unlikely to be a "smoking gun" which shows that Yoo deliberately crafted erroneous memos. Yoo's been pretty consistent in defending his work since then; it seems like his legal theories are sincere (even if incorrect).

3/08/2009 4:00 PM  
Blogger Matt said...

That is correct. There probably isn't a smoking gun. I'm also guessing that there probably isn't much material to be discovered that isn't already known or that isn't protected by various state secrets privileges.

3/08/2009 4:03 PM  
Anonymous Anonymous said...

We discussed the MPRE earlier in the year and discussed how many questions one would need to get correct to pass, etc. Just in case you're nervous, you could search for that. It will probably calm your fears.

3/08/2009 5:33 PM  
Anonymous Anonymous said...

I too heard the oral argument and I was surprised to hear Padilla claim that he failed the MPRE last fall because prof. steele never mentioned "partisan arbitrators."

3/08/2009 11:48 PM  
Blogger John said...

Partisan arbitrators are going into the next version of the outline. Along with distinction between law reform boards and legal services boards. And, oh yeah, lots more judges stuff. And criminal liability too. Plus some more malpractice and discovery sanctions.

John Steele

3/09/2009 8:44 AM  

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