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Monday, November 20, 2006

Teaching Hamdan

Hamdan v. Rumsfeld is probably one of the most significant executive powers/con law case in recent history and therefore rightly shows up in new editions of Constitutional Law casebooks, as well as Federal Courts ones.  However, it turns out to be not so easy to teach.

The case runs 106 pages in the Supreme Court Reporter.  Ten pages of that is devoted to the syllabus and head notes, but that still leaves 96 pages of opinions, which is far too long to assign for one night's reading.  The 2006 Supplement for Hart & Wechsler cuts Hamdan down to a svelte 20 pages, but at the cost of details.  The Councilman abstention is boiled down to one editorial paragraph, though that is an edit that seems valid to me.

More difficult is the decision to truncate a good deal of Justice Scalia's argument regarding the Detainee Treatment Act.  In particular, Justice Stevens' majority opinion relied on a number of statutory interpretation cannons, one of which was that the explicit statement in one part of a statute coupled with the omission in another part should be understood as intentionally not applying the explicit statement to the other part.  Thus, the fact that subsections (e)(2) and (e)(3) stated that they applied to "pending claims" meant that the omission of such language with regard to other subsection (e) claims -- including Hamdan's -- was intentional, and pending claims in the latter category were not covered by the DTA.  126 S. Ct. 2749, 2766-67 (2006).

Justice Scalia's response was that subsections (e)(2) and (e)(3) created new jurisdiction exclusive to the D.C. Circuit, and therefore it made sense to specify that they applied to pending claims.  126 S. Ct. at 2813.  Yet, this entire point is omitted from the Hart & Wechsler supplement.  I say this not because I necessarily think that Scalia has the better argument, but because it can confuse the student-reader of the case to wonder why Scalia has no response to the Stevens point.


I don't mean to suggest that I disagree with the editorial decision that Professors Fallon et al. (the current casebook authors) made in cutting Hamdan down to size, just that I bring this up because a student was asking during office hours about the Stevens argument and we got to this part of the opinion.  I found that it was difficult to keep track of what I had read in the full opinion versus the edited one, and then I had to go over the gist of the unedited opinion for the benefit of the student.

Of course, Supreme Court Justices have no obligation to make their opinions accessible to law students, and certainly complex matters deserve how ever much attention it takes to discuss them fully.  But sheesh, 96 pages?

Posted by Tung Yin on November 20, 2006 at 05:52 PM in Constitutional thoughts, Life of Law Schools | Permalink


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» Round-Up from SCOTUSblog
At the Volokh Conspiracy, Orin Kerr highlights a Yale Pocket Part article about Bush v. Gore's precedential value. At PrawfsBlawg, Tung Yin wonders how law profs should teach Hamdan v. Rumsfeld. In an article here at LLRX.com, Michael Ravnitzky discuss... [Read More]

Tracked on Nov 21, 2006 11:58:29 AM


Is this problem unique to Hamdan? There are a lot of complex key cases out there for which casebook excerpts would find hard to condense. Let's not talk about footnotes!

Posted by: Joe | Nov 22, 2006 9:46:49 PM

Well, there is at least an additional opportunity to teach the approach set forth in Jackson's Youngstown concurrence. The President can use commissions, but Congress has spoken with regard to the circumstances under which he may do so. When the President acts contrary to legislative enactments, etc. . . The edited version of Hamdan I have includes discussion of that critical constitutional analysis among majority and especially dissenting justices. There is of course a great deal more to the case, but one can at least use it for this purpose. I also reviewed the MCA in class, which provided an excellent opportunity to watch Congress respond to the Court in "real time."

Posted by: zeek | Nov 22, 2006 9:51:25 AM

well, like most famous war powers cases, there simply isn't much Con Law there, at least not on the face of the opinions.

But that's just the thing. When it comes to wartime cases, the fact that the courts won't touch most issues is a Con Law issue in and of itself, as are the notable exceptions such as Hamdan.

Most of our country's most momentous Supreme Court decisions have been premised upon far more than a dry analysis of textual provisions in the Constitution. It would really suck the life out of Con Law to pretend otherwise.

Posted by: Steve | Nov 21, 2006 3:45:47 PM

I imagine that when it comes to Fed Courts, Hamdan is too much of a good thing -- as you note, it's an embarrassment of riches. But when it comes to ConLaw . . . well, like most famous war powers cases, there simply isn't much Con Law there, at least not on the face of the opinions. There's the cryptic footnote 23 of the majority and the opening paragraphs of the AMK concurrence, both of which suggest that in some unknown set of cases, "proper" statutes can limit the Executive, but other than that, it's all statutory and treaty interpretation.

There are, of course, many important second-order ConLaw questions lurking just beneath the surface, such as how the Court views its role in construing war-powers-related statutes, and its failure to defer to Executive interpretations of Geneva. But I actually think there's very little in the 100+ pages that can be excerpted in a ConLaw casebook. Which is one reason I'm not assigning Hamdan to my ConLaw class.

Posted by: Marty Lederman | Nov 21, 2006 4:24:39 AM

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