Hamdan v. Rumsfeld is a rare Supreme Court rebuke to the President 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 reflections on how the case was litigated, the decision, and its implications 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.” 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, many of the nation’s leading law schools have ramped up course offerings and the number of faculty members devoted to legal theory while disparaging practitioners. Like any excluded group, practitioners have begun disparaging the theoreticians in return. 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.
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. This Comment oscillates, with any luck instructively, between Hamdan’s implications for legal education and its implications for the law. Part I discusses how broad theoretical research sheds light on the litigants’ strategic moves. Part II explains the implications of the Hamdan decision. Part III looks to the future of both the bar and the academy.