The Volokh Conspiracy
[Orin Kerr, December 9, 2005 at 5:24pm] Trackbacks
DOJ OK With Taking Padilla Decision Off the Books:
Reuters has the scoop.
MikeC&F (mail):
This is as they should have done. They know they can get another favorable ruling from the Fourth Circuit - if and when it's needed. And they know that the Supreme Court line-up they'll face when that ruling is appealed will not be any worse than the one they'd now face. So they're preventing themselves a sure loss now, with knowledge that in the future they will either win (and be better off) or lose (and be no worse off).
12.9.2005 5:41pm
The Original TS (mail):
The government was responding to an order by the appeals court to explain why it used different facts to justify Padilla's military detention from those included in last month's indictment that charged Padilla with conspiracy to murder and aiding terrorists abroad.

I smell trouble here. The Fourth Circuit thinks the DOJ has been playing games with them. There are few things that unite members of the judiciary faster than the spectre of being toyed with be the executive branch.
12.9.2005 6:15pm
washerdreyer (mail) (www):
Two part question which I probably should have learned the answer to already in law school:

1) What's the difference between vacating a decision and setting it aside?

2) What official source contains that answer, since I couldn't find it in my first guess, the Rules of Appellate Procedure?
12.9.2005 8:47pm
washerdreyer (mail) (www):
Nevermind, I forgot about the Restatement of Judgments, which should have the answer.
12.9.2005 8:59pm
Anderson (mail) (www):
AnswerS, I suspect, washerdreyer ...
12.9.2005 10:56pm
xx:
I agree that there seems to be more going on here. The governmnent seems conerned that its allegations are different enough in each case that sanctions, estoppel, latches, or something else serious could end up being a problem. What did they argue in Padilla that they want to contradict now?
12.10.2005 10:48am
Public_Defender:
This does tend to support those who say that the Bush Administration is not alway honest when it comes to terrorism issues.
12.10.2005 12:03pm
Fishbane (mail):
This does tend to support those who say that the Bush Administration is not alway honest when it comes to terrorism issues.

Only if one accepts the existence of objective fact. Those who prefer results find that reality varies over time.
12.10.2005 4:39pm
roy solomon (mail):
Sen. Specter said he intended to have the Judicial comittee review the transparent end-around game the administration is playing here.
12.12.2005 8:50am

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