Document Type

Article

Publication Date

2006

Abstract

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. At least three different theoretical tools were involved in Hamdan: (1) 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 each in law school is widely - and incorrectly - believed irrelevant to practice.

Publication Citation

120 Harv. L. Rev. 65-123 (2006)