O C F I T B L O G Legal The Ethics of Law Professor Amicus Briefs Revisited

The Ethics of Law Professor Amicus Briefs Revisited

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The number of amicus briefs submitted by academics has increased dramatically over the past several decades. In principle, such scholars’ briefs should help courts resolve difficult cases by sharing relevant expertise. Judges are necessarily generalists. Scholars in a particular field, on the other hand, may have genuine expertise about the specific issues at hand in a given case that could assist the judges in making a decision.

Whatever the merits of such briefs in theory, some have raised questions about their value in practice. In a 2012 Journal of Legal Analysis article, Professor Richard Fallon suggested that too many  professor “compromise their integrity” by joining amicus briefs “too promiscuously.” In 2001, Professor Ward Farnsworth reached a similar conclusion, and suggested that law professors “should not sign documents unless they would be ready to defend them orally in the tribunals to which the documents are being presented.” (My co-bloggers Orin Kerr and Ilya Somin also weighed in on some of these questions in 2010.)

As the number of amicus briefs has increased, I suspect the influence such briefs have on the courts has declined—and I suspect this is particularly true for those briefs filed by interest groups (which often file briefs for fundraising or promotional purposes) and large groups of academics. While a brief submitted by a few well-known experts in their field of expertise may well matter, I doubt many judges are impressed by relatively generic submissions filed on behalf of dozens of academics–and with good reason.

In some fields, it is rather common for professors to sign on to just about any academic brief that argues for their preferred outcome, without regard for what arguments are actually made or whether those arguments align with the academic signatories’ scholarly views. In some cases professors will sign on even when they know little about the subject matter–such as, say, what a given state’s law has to say about a complex matter–and when they have engaged in no independent study of the issue. In still other cases, academics may solicit signatories for briefs sight unseen–and some apparently sign under such conditions. (Indeed, I saw one such solicitation just within the past month.)

If the value of an academic amicus brief is to provide academic expertise, then it would seem to me to be quite unethical for academics to sign their names to briefs that do not reflect their academic expertise. And insofar as some (many?) academics do not adhere to such a principle, it should not surprise us if this lessens the value of such briefs overall, as judges learn to cast aside what are little more than well-formatted policy statements.

In my own case, I have never been willing to sign on to amicus briefs that did not address matters within my expertise and that would satisfy the Farnsworth standard, but I have become even more reluctant to sign such briefs over time. These days, as a general rule, I will not sign a brief unless I helped to write it or had some role in shaping the arguments, unless by serendipity a brief aligns with my previously well-considered views (which may happen if, say, the brief author drew from my published work). It is not that I do not have opinions about how I would like many cases to be decided. It is rather that there is no reason a court should care what I think about a case unless I can say, without hesitation, that I have studied the matter to a degree the judges have not. Is this approach too stingy? Perhaps, but I am inclined to think it is the right one.

From Professor Fallon’s 2012 article:

With respect to questions of professional identity, many of today’s law professors want to be valued as scholars on a par with professors on faculties of arts and sciences who devote their careers to the sometimes lonely search for truth or honest insight. Yet many also aspire to achieve an immediate influence on public events in ways that few members of faculties of arts and sciences could dream of. In seeking to realize the latter ambition, we law professors may face temptations to tailor our arguments to our audiences, to overstate the strength of the support for our conclusions, and to omit to say what would reduce our impact.

The vocation of a law professor is not exclusively that of a scholar. We can, and should, play multiple roles. In doing so, however, we should remember that when we attempt to influence public matters, we almost inevitably seek to trade on the credibility that we—and our predecessors and colleagues—have earned in the roles of scholar and teacher. Those roles create obligations of responsibility, trustworthiness, and confrontation. If emerging norms in the signing of scholars’ briefs betray expectations of scholarly responsibility, trustworthiness, and confrontation that we have sought to promote, or seek to capitalize upon, then we should hold ourselves to higher standards

 

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