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January 6, 2009

Will legal academics in top DOJ posts mean innovation in government or law schools?

As everyone probably already know, and as detailed in this official press release, the Obama team has named two prominent academics to fill two important spots in the Justice Department: Harvard Law Dean Elena Kagan was tapped to be Solicitor General and Indiana Law Prof Dawn Johnsen was tapped to head the Office of Legal Counsel.  (This USA Today article, headlined "Key Justice nominees rooted in academia," notes the law school connections.)

The fact that Kagan and Johnsen served in the Justice Department during the Clinton Administration is likely to generate the most inside-the-beltway buzz.  But, I think it is far more significant and interesting that both Kagan and Johnsen have spent most of the last decade inside law schools.  Though both have surely kept followed closely government policy issues and legal practice realities over the last 10 years, both also necessarily had more professional experiences shaped by the scholarly issues and not-so-practical realities that make up the day-to-day workings of law schools. 

These notable professorial selections, together with the fact that President-elect Obama himself was a law professor for a few years and headed the Harvard Law Review, now has me wondering whether we can or should expect (or hope or fear) a new era of innovation in the Justice Department or in law schools.  Here are just a few questions worth pondering (perhaps in the hallways during the AALS Annual Conference, which starts today):

  • Might the Justice Department now become more "academic" in the years ahead (whatever that might mean)? 
  • Might law schools and legal scholarship now become more "practical" in the years ahead (whatever that might mean)?
  • Might there be more regular and repeated movements between the legal academy and government positions in the years ahead?

Posted by DAB

January 6, 2009 in Legal profession realities and developments | Permalink


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Antitrust has been academic for a long time. Every Deputy Assistant Attorney General for Economic Analysis at DOJ and every head of the Bureau of Economics is a senior and well respected econ prof who takes leave for two years of government service. On the law side, academics who put in time in the Bush Administration include: Bill Kovacic (FTC Chairman), Tim Muris (FTC Chairman), Todd Zywicki (Director of Policy Planning), and David Hyman (Health Care Task Force). I may have omitted some people.

The peer reviewed Antitrust Law Journal is the 101st most cited law review and both law professors and economics professors write in it. The government-academic interface has improved the quality of writing but then again antitrust scholarship (even the theoretical variety) still matters at the Supreme Court, unlike most other fields. The Supreme Court and lower courts regularly cite to antitrust law review articles in antitrust decisions.

Posted by: D. Daniel Sokol | Jan 6, 2009 1:41:13 PM

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