Posted on November 23, 2011 at 10:45 am by Amanda Frost
In recent months, my posts have highlighted the relationship between legal scholarship and Supreme Court decisions. I have flagged briefs that cite and discuss scholarship, and have noted when the Court itself takes an interest in a particular scholar’s analysis of the questions before it (for example, here). Although conventional wisdom, as well as a few sitting Supreme Court Justices, tells us that legal scholarship is mostly irrelevant, in fact a surprising amount of the stuff is cited by practitioners and by the Court itself (as I wrote about here).
But of course scholarship is not the only way in which academics communicate with courts. Increasingly, academics author amicus briefs—a phenomenon that some find alarming. (The Court received only 3 such scholars’ briefs during the 1985-86 Term, as compared to 56 last Term.) Professor Richard Fallon critiques the practice in a recent article, which in turn was the subject of a New York Times sidebar by Adam Liptak.
So is there something to worry about here?
Professor Fallon raises a number of arguments worth considering, and I urge those interested in the subject to read his article. His primary concern is that academics trade on their scholarly reputation, which gives their briefs more weight than those of other litigants even as those briefs fall woefully short of scholarly standards. The point is a valid one, and I’m glad he raised it. His article has already generated some interesting discussions among legal scholars who regularly write and sign on to such briefs (for example, here). If nothing else, it should make law professors think twice before joining such briefs, which should improve their quality.
If I disagree with Professor Fallon, it is that I think courts know that when anyone signs onto an amicus brief — whether an academic, a member of a Congress, a former government official, or a concerned citizen — that person is an advocate for a particular position, not an impartial third party. Advocacy is not scholarship, and amicus briefs are advocacy. In short, I don’t think judges read scholars’ amicus briefs expecting the purity of argument contained in an academic article. Although that conclusion does not resolve many of Professor Fallon’s other objections to scholars’ briefs, it reassures me that judges do not give such briefs disproportionate weight.
So then what purpose do scholars’ briefs serve? Ideally, such a brief can add value in the same way as an amicus brief from any respected and knowledgeable member of the legal profession would — as a source in which to find thoughtful, reasonable, and well-supported arguments based on accurately described sources. Furthermore, it helps that academics are not being paid by a client, and are taking positions on a subject in which they are experts — both of which should improve their quality and reliability as compared to the average law firm-generated amicus brief. In other words, it is their value as good advocacy — informed by scholarly research and the standards of good scholarship — that makes some of them worth reading. (Or, at the very least, worth assigning law clerks to read.)