Academic round-up
on Jan 3, 2012 at 4:18 pm
A few weeks ago I blogged about Professor Dick Fallon’s essay criticizing law professors for too lightly agreeing to join in so-called “scholars’ briefs” — that is, amicus briefs submitted on behalf of a group of law professors who claim expertise in the relevant field. Fallon is concerned that such briefs seek to leverage the signatories’ scholarly reputation while at the same time frequently falling short of scholarly standards, and he hopes that law professors will “say no” to joining such briefs “much more frequently than many of us now do.” As I wrote previously, I am glad he raised these questions, which should inspire law professors to give more thought to their participation in such briefs and their goals in doing so. That said, I take issue with some aspects of his essay, which inspired me to author a short response, available here.
As I wrote in my response, I think scholars’ briefs serve an important purpose. Not only can such briefs occasionally benefit judges faced with hard legal questions, they also serve the interests of the academy itself. Law professors are frequently criticized for being out of touch with the actual practice of law (such as by the Chief Justice, here), and thus I value any activity that keeps legal academics engaged with real-world legal issues.
Furthermore, although I agree with Fallon that authors and signatories of scholars’ briefs must satisfy different standards than those that apply to practicing lawyers writing amicus briefs — such as being experts in the subject area and sincerely believing in the result the brief advocates — I do not believe that such briefs must adhere to the norms that apply to the production of legal scholarship. In my view, the realities of litigation, in which a judge’s decision is inevitably influenced by both precedent and politics, coupled with the adversarial context in which such briefs are filed, justifies a departure from the pure standards of scholarship.
I welcome readers’ comments on, or critiques of, my response, which at least has the benefit of being very short (12 pages). In his essay, Fallon wrote that he hoped to spur an overdue discussion on this topic, and that is my goal as well.
