Anyone requiring proof that Judge Bybee was a former law professor need not resort to Wikipedia. They can simply read his concurrence in this case.
I've read tens of thousands of cases in my time. I have never -- never -- read something that reads so much like a law review article. Ever. I could cut-and-paste Judge Bybee's opinion, remove the caption, and send it in to law reviews and it'd be accepted within a week. Beyond a shadow of a doubt.
Normally, comparing an opinion to a law review article might be seen as a bad thing. But I don't mean it that way at all. Judge Bybee's approach is informed, scholarly, and creative. He recognizes that he's bound by Supreme Court precedent, but that doesn't stop him from critiquing it and proposing an alternative. He's got a wonderful way of writing and does an outstanding job on the historical side. I can say with certainty that the majority of law review articles aren't nearly as good as Judge Bybee's concurrence.
Which does not necessarily mean that I'm persuaded by Judge Bybee's approach. It's got a lot going for it, but it also suffers from some flaws. But that one law professor might be able to critique another professor's work doesn't mean that it's not still really, really good.
Here's another example of the many benefits one can obtain when one adds diversity, broadly defined, to the bench. There's a place for academic discourse even within the confines of adjudicating particular Article III disputes. It can inform the law. It can potentially shape it.
Few judges on the Ninth Circuit could have written anything like Judge Bybee's concurrence.
Well done.
