Hamdan V. Rumsfeld: The Legal Academy Goes to Practice
Posted: 2 Nov 2006
This essay, for the annual Supreme Court issue of the Harvard Law Review, uses Hamdan to illustrate why the disparagement of theory in law schools is partially wrong. By examining a few of the litigation choices made in the case, it demonstrates some of the benefits of theory to practice. At least three different theoretical tools were involved in Hamdan: (1) cognitive psychological research on framing effects and bias toward compromise; (2) theoretical inquiry into the timing of Supreme Court litigation and the passive virtues; and (3) economic analysis of penalty default rules and political science research on the veto. The study of such tools in law schools is widely - and incorrectly - believed irrelevant to practice.
At the same time, it is easy to overstate the case for theory, as contemporary legal scholars frequently do. The truth is that very few top law schools today prepare all of their students to be lawyers. Some lessons along this dimension from the Hamdan case are explored as well, including the teaching of lawyering skills.
The essay also analyzes the implications of the Hamdan decision, concentrating on two central holdings: (a) the President cannot set aside or creatively interpret laws of Congress under claims of inherent authority, and (b) treaties ratified by the Senate constrain the exercise of executive power, and the President does not have unfettered ability to interpret such treaties as he chooses.
As to (A), the most important doctrinal lesson of Hamdan is its repudiation of the claim that the President is entitled to act alone. Indeed, Hamdan stands as a defining moment in constitutional law because it integrates the modern communication and transportation revolution into constitutional analysis.
As to (B), the Court's decision might best be explained on the ground that the President lacked support not only from Congress, but also from the executive branch's own experts. Hamdan second-guessed the President's interpretations on this view because those interpretations had not earned the approval of the bureaucracy, including the Judge Advocates General and the State Department. Through bypassing the interagency process, and squelching expertise under the aegis of political accountability, the Administration weakened the rationale for deference all on its own.
Keywords: theory, litigation, pratice
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