Judge Kavanaugh on the Relevance of the Legal Academy
Two weeks ago I had the good fortune to moderate a panel at the International Law Weekend that included Judge Brett Kavanaugh of the D.C. Circuit. I thought his comments deserved wider dissemination.
The focus of the panel was a review of the influence and relevance of the legal academy. It included great speakers such as Martin Flaherty of Fordham, Neomi Rao of George Mason, and Brian Hook, counselor to the U.S. Ambassador to the United Nations.
Judge Kavanaugh was quite impressive and engaging and he had some very useful and positive things to say about the legal academy. Here is my brief summary of his comments:
Judges are Generalists. Judges are generalists and therefore they are at an inherent disadvantage vis-à-vis academics on narrow topics of law. Most judges recognize this and profit from scholarly expertise.
Law Review Articles Matter. He said he reads them, benefits from them, and disagrees with other judges who say they are irrelevant.
Law Professor Amici Briefs are Welcome. The new phenomenon of law professor amici briefs was greeted with enthusiasm by Judge Kavanaugh. “The more the merrier.”
Unanswered Questions Abound. There continue to be a surprising number of questions that one would think would be settled law which are not. Law review articles that help clarify the interstices of the law are especially welcome.
Greater Ideological Diversity Is a Plus. Judge Kavanaugh said he reads law review articles that are on point, regardless of whether they are written from the left or right. But diversity of viewpoint sharpens the analysis and contributes more to the end product of good law.
Judges Read Blogs. Whether they admit it or not, judges read blogs. They especially read blogs that focus on developments in the judiciary. As Judge Kavanaugh put it, “Howard Bashman is the Matt Drudge of the legal profession. If Bashman says it, it gets attention from judges.” He added that he regularly reads Opinio Juris and noted our recent criticism of the Second Circuit decision in Khulumani (see here and here).
Judges Care about Scholarly Criticism. Judges know they are fallible and they respect thoughtful scholarly criticism about their opinions. In the past this criticism would be a delayed response, sometimes more than a year. Today the comments and criticisms flow forth within hours. “There is nothing worse than a legal scholar highlighting a major point you missed in real time.”