COMMENT HAMDAN V. RUMSFELD: THE LEGAL ACADEMY GOES TO PRACTICE Neal Kumar Katyal TABLE OF CONTENTS I. HAMDAN: HOW THEORY INFORMED PRACTICE .............................................................72 A. Framing Effects......................................................................................................................73 B. The Passive Virtues...............................................................................................................84 C. Default Rules and the Veto ..................................................................................................94 II. HAMDAN: HOW PRACTICE REINED IN THEORY..............................................................97 A. Inherent Authority ...............................................................................................................97 B. Deference.............................................................................................................................105 III. FUTURE REFORM..................................................................................................................114 A. In the Government ..............................................................................................................115 B. In Law Schools....................................................................................................................116 1. Oral Advocacy ................................................................................................................117 2. Working in Groups.........................................................................................................118 3. A Moral Compass...........................................................................................................119 IV. CONCLUSION..........................................................................................................................122 65 HAMDAN V. RUMSFELD: THE LEGAL ACADEMY GOES TO PRACTICE Neal Kumar Katyal∗ Hamdan v. Rumsfeld1 is a rare Supreme Court rebuke to the Presi- dent during armed conflict. The time is not yet right to tell all of the backstory of the case, but it is possible to offer some preliminary re- flections on how the case was litigated, the decision, and its implica- tions for the oft-noticed divide between legal theory and practice. In a widely cited article, Judge Harry Edwards lamented “the growing disjunction between legal education and the legal profession,” claiming that “many law schools . have abandoned their proper place, by emphasizing abstract theory at the expense of practical scholarship and pedagogy.”2 This observation is truer today than when Judge Edwards penned those words in 1992. Perhaps fueled by an intense desire to move up in published law school rankings,3 many of the nation’s leading law schools have ramped up course offerings and the number of faculty members devoted to legal theory while dis- paraging practitioners.4 Like any excluded group, practitioners have ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– ∗ Professor of Law, Georgetown University Law Center. For helpful comments, I thank Bruce Ackerman, Alex Aleinikoff, Akhil Amar, Judy Coleman, Jack Goldsmith, Tom Goldstein, Julie Hilden, Vicki Jackson, Christine Jolls, Dan Kahan, Sonia Katyal, Richard Lazarus, David Luban, Liz Magill, Jon Molot, Judith Resnik, Jeff Rosen, Joanna Rosen, Jonathan Siegel, Charles Swift, Carlos Vázquez, Stephen Vladeck, and Kathy Zeiler. Given extremely unusual time pres- sures for publication, the research of many (Laura Alexander, Jillian Ashley, Jennifer Davitt, Josh Friedman, Brian Hart, Martin Kurzweil, Adam Lawton, and Jay Smith) contributed greatly to the final product. I served as Counsel of Record in Hamdan v. Rumsfeld, and this Comment is dedicated to my co-counsel Lieutenant Commander Charles D. Swift (of the United States Navy); Joseph McMillan, Charles Sipos, and Harry Schneider (of the law firm Perkins Coie); Tom Goldstein and Kevin Russell (then of the firm Goldstein & Howe); and dozens of students from Duke College and Georgetown, Harvard, Michigan, and Yale Law Schools. These men and women represent the best of the public and private bar, both its present and its future. 1 126 S. Ct. 2749 (2006). 2 Harry T. Edwards, The Growing Disjunction Between Legal Education and the Legal Pro- fession, 91 MICH. L. REV. 34, 34 (1992). 3 See Paul L. Caron & Rafael Gely, What Law Schools Can Learn from Billy Beane and the Oakland Athletics, 82 TEX. L. REV. 1483, 1509–14, 1525–29 (2004) (book review) (describing how U.S. News and World Report law school rankings have created market pressure leading to, among other things, “increased course offerings in nontraditional areas” and “a desire to measure indi- vidual contributions” of faculty — contributions measured, almost invariably, in terms of schol- arly productivity and reputation alone). 4 For example, Professor Lawrence Solum has collected data noting “a marked decline of the ‘Trade School’ model,” with more than one-third of new hires possessing advanced doctoral de- grees in a discipline other than law. See Legal Theory Blog, http://lsolum.typepad.com/ legaltheory/2004/07/hiring_trends_a.html (July 19, 2004, 13:24 EST). 66 2006] THE SUPREME COURT — COMMENT 67 begun disparaging the theoreticians in return.5 We are witnessing one of the most significant developments in the history of American law: the majority of professors on many law faculties are now specializing in areas that are of no obvious relevance to their students’ activities upon graduation.6 This Comment uses Hamdan to illustrate why the disparagement of theory is partially wrong. By examining the litigation of the case, it demonstrates some of the benefits of theory to practice. At least three different theoretical tools were involved in Hamdan: (1) psychological research on framing effects and bias toward compromise; (2) theoreti- cal inquiry into the timing of Supreme Court litigation and the “pas- sive virtues”; and (3) economic analysis of penalty default rules and po- litical science research on the veto. The study of each in law school is widely — and incorrectly — believed irrelevant to practice. To take one example, sophisticated Supreme Court practitioners sometimes employ a strategy that turns out to harness what cognitive psychologists call “extremeness aversion.”7 An advocate files a certio- rari petition based on arguments that push the lower court’s logic to the maximum, and then argues that if the opinion becomes the law, a parade of horribles will inevitably follow. The petition then advocates a strong, but seemingly more reasonable, position completely opposite to that lower court opinion, thereby casting the dispute as a fairly ex- treme one. The sharply opposed positions might persuade the Court to hear the case. At that moment, the advocate changes her goal — from getting the case selected to winning it. Winning often requires the definition of a narrower rationale. The extreme position announced in the petition becomes not a liability, but rather a useful anchor for the discussion by presenting the advocate as a reasonable friend of the Court who would be content with more lim- ited relief. The advocate comes across not as reversing course, but merely as courting the Court by acceding to the inevitable compro- mises the Justices will seek. In taking this turn, the lawyer cannot give up on the broader position; instead, she explains that the broad- yet-defensible position is not necessary to reach because of an avail- able, and more limited, rationale in her client’s favor. Oral argument both continues this strategy and furthers a second objective. The ad- ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 5 See Rena I. Steinzor & Alan D. Hornstein, The Unplanned Obsolescence of American Legal Education, 75 TEMP. L. REV. 447, 457–64 (2002) (describing “tensions” between the bar and the academy and stating that “many practicing lawyers feel varying degrees of impatience with the academy’s esoteric pursuits”); see also AM. BAR ASS’N, LEGAL EDUCATION AND PROFES- SIONAL DEVELOPMENT — AN EDUCATIONAL CONTINUUM 3–8 (1992) (similar). 6 See Kara Abramson, “Art for a Better Life”: A New Image of American Legal Education, 2006 BYU EDUC. & L.J. 227, 283–84 (describing this disjunction). 7 See infra pp. 76–83. 68 HARVARD LAW REVIEW [Vol. 120:65 vocate must now explain why the other side’s position is extreme, and how its purported compromises (if any) remain extreme (unlike her own, which are of course entirely reasonable). This pattern, from petition to oral argument, repeats itself all the time. Take the Pentagon Papers case, the last strong Supreme Court rebuke of the President during armed conflict.8 Alexander Bickel, the lawyer for the New York Times, opened his brief with the broad claim that virtually all prior restraints on publication were impermissible.9 He then took a more modest position: “[S]uch narrow exceptions to the rule against prior restraints, if any, . arise . in connection with the redress of individual or private wrongs.”10 His brief concluded more narrowly still, claiming that the government needed a statutory basis for its prior restraint, one not present in the case.11 Yet Bickel’s oral argument focused on this narrowest position — so much that, with just a few moments remaining after the great professor had con- demned the government’s “inherent authority” argument in a dozen different ways, one Justice interrupted to ask whether the First Amendment