Post-Hamdan Developments in Scholarship and the Courts

    It's been quite a hectic few months since the Hamdan decision, between giving well over 100 talks to law schools, policymakers, think tanks, international bodies, etc., teaching a very fun group of constitutional law students, and trying to write. 

    The editors of the Harvard Law Review recently asked me to do the case comment to their November Supreme Court issue, and it is now out.  You can access the full text  at this link: The Supreme Court, 2005 Term, Comment: Hamdan v. Rumsfeld: The Legal Academy Goes to Practice. The piece is an attempt to think about the case and what it says for the divide between theory and practice, ranging from Amos Tversky-like framing effects to Ian Ayres'-style penalty default rules.  I just presented it to the Harvard community yesterday, and am deeply appreciative for all the support the school's faculty and students have given me over the years.  (One thing I wish the Crimson story wrote about was how much Professor David Shapiro and a group of three Harvard students contributed to the case on the federal jurisdiction issues, but so be it.)

    With Derek Jinks, I've also been writing an article for Yale Law Journal that argues that the President should not receive Chevron-style deference in certain international affairs decisions for structural, doctrinal, and practical reasons.  It is part of a debate we are having with Cass Sunstein and Eric Posner.  We have just posted a draft of our paper, Disregarding Foreign Affairs Law, on SSRN, available here.

    My piece for the Yale Law Journal symposium on executive power is now out as well.  Internal Separation of Powers: Checking Today's Most Dangerous Branch from Within. [A short pocket part version is here].  I argue that we should start developing a model of separation of powers internal to the executive branch, instead of relying on courts and congress.  Part of the task is to begin resuscitating a dirty-word in American politics, bureaucracy, and to think about how to create friction among overlapping agencies and develop a better civil service.

    Finally, developments continue in the Hamdan case itself.  Our remand brief was just filed on Friday, and is available here.

    Happy Thanksgiving to all of you.