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Percival on Padilla v. Yoo

By Lawrence Solum

Lynn C. Percival IV (Campbell University School of Law) has posted Bivens Gone Wild: A Critique of the Recent Recognition of a Novel Bivens Remedy in Padilla v. Yoo on SSRN. Here is the abstract:

This short paper considers the recent district court decision in Padilla v. Yoo. While Yoo may ultimately prevail, the order has significant implications, as it is novel in several respects. The court concluded that national security concerns and other factors are insufficient to discourage courts from allowing a Bivens claim against executive officials rendering legal opinions in advisory or policy-making roles. The court also held that Padilla?s complaint alleges conduct that violated clearly established law, meaning Yoo was not entitled to qualified immunity. Part I. of this paper will explain the applicable Bivens and qualified immunity framework, while Part II. will distill the district court?s twenty-seven page opinion. In Part III., I argue the district court?s analysis, which created a novel Bivens claim against Yoo, was flawed because it suggests courts should not hesitate in creating novel Bivens claims.

Full post as published by Legal Theory Blog on January 12, 2010 (boomark / email).