Years ago, I was a member, and later chaired, the amicus committee for the New York State Association of Criminal Defense Lawyers. At the time, it was an active committee, its procedures formed by Malvina Nathanson, who took her work very seriously. The committee not only addressed cases where our involvement was requested, but actively sought out cases involving important issues of law.
We often argued, and disagreed, about which cases to support, and if support was appropriate, what position to take. It’s hardly simple. There were cases where the outcome sought by the defense had the potential to be enormously disruptive to law that was more generally beneficial to defendants. Principle played a huge role in making these decisions, as did concern that a crucial issue of law was in the hands of a defense lawyer who might not be up to the task. A great case in the wrong hands could spell disaster for criminal defendants. We tried not to let that happen.
At Volokh Conspiracy, Orin Kerr and Ilya Somin discuss NYU lawprof Richard Fallon’s article on the ethics of lawprofs signing on to amicus briefs.
For practitioners, having a lawprof amicus brief supporting us can be huge. No matter how critical we can be of lawprof’s practical experience and, ahem, theoretical proclivities, both lawyers and judges recognize that these are guys who get paid to think about law, and their arguments and, dare I say it, approval of the ideas, carries great weight. Likely more than it should, but when they’re on our side, they are suddenly much taller and far more handsome.Fallon argues that lawprofs are far too quick to sign amicus briefs that fit their ideological proclivities even if they aren’t really expert in the underlying legal issues and sometimes even if they don’t agree with the particular legal argument advanced by the brief. He further contends that legal scholars should only agree to sign briefs if they 1) have personal knowledge of the major factual claims and legal authorities the brief relies on, 2) agree with the brief’s reasoning (not just its bottom-line conclusions), and 3) the brief makes at least some reasonable effort to confront key opposing arguments and evidence.
Fallon argues that lawprofs intellectual coin is in the exercise of discretion, the refusal to sign on if they aren’t truly part of the team. Not only should they demur if they aren’t “experts” in a niche, but then they must be as integrally involved as we are. Fallon takes a very principled position, but an extremely harsh one that would knock quite a few supportive names off the brief, for lack of time if not other reasons.
Somin agrees with Fallon that academic integrity is at risk by lawprofs blindly signing on because they support an outcome, but his view is slightly more narrow.
I certainly agree that Fallon has identified a real problem. For what it’s worth, I have long refused to sign amicus briefs except in cases where I am an expert on the relevant subject and I endorse the brief’s reasoning as well as its conclusion. This is less stringent than Fallon’s standard of personal familiarity with all the major authorities relied on by the brief. But it does have real bite.In the last sentence, the problem for practitioners becomes clear. Amongst a gaggle of academics, even assuming they possess what they self-describe as “expertise” in a niche, it’s awfully difficult to reach agreement on nuanced aspects of arguments and theories propounded to reach the agreeable conclusion. So, while they can either fight amongst themselves, or flee the offending argument, the amicus support you thought you had, and needed, is tied up with squabbling over what seems to us to be nonsense.
For example, I have refused to sign several amicus briefs in Second Amendment cases because, despite my sympathy for the individual rights theory of the Amendment, I feel I’m not expert enough on the subject to opine on it to a court. In another major Supreme Court case that did touch on areas where I am an expert, I refused to sign a brief because, even though I agree with its bottom-line conclusion, one of its principal arguments relied on a theory of the Spending Clause that I had criticized in my scholarship.
In stark contrast is Kerr’s position:
If I were a law clerk, I would ignore the names of professors who are signatories but not authors of amicus briefs. In my experience, some of the professors who sign on to amicus briefs don’t even bother to skim the briefs filed in their name. Those who read the briefs sometimes have serious reservations about their content, and others simply don’t know enough about the area of law to determine if the brief is accurate. Caveat scriba, you might say.
While this might be a more practical perspective, it does neither the parties nor the court much good. If there’s any purpose to lawprofs signing on to an amicus brief, and I believe there is purpose and should be purpose, then it’s negated with a wave of the hand. While some lawprofs may sign on without having any more of a clue than approval of the outcome, what’s wrong with that?
Academics may obsess over nuance used to reach outcome, but the rest of us live with outcome. It matters. It matters a lot, and their support of outcome matters too. It seems that Orin would require every academic to write his own brief or be discounted. That’s a bit burdensome.
While I can appreciate Fallon’s desire for strict academic integrity in every aspect of amicus support, it seems that his position is so overly stringent as to reduce an important contribution that lawprofs can make to law in the trenches to another academic exercise. While many lawyers already view the academic contribution to “real law” as nullity, this is a way they can use their clout, whether deserved or not, to bring about meaningful change and provide an affirmative contribution to the law as suffered by real people on the street. They can help people, if only they get down off their academic high horse.
To have the support of lawprofs as amici, or as signatories to an amicus brief, carries weight, and informs a court that people give a damn about what they’re doing in a case. It lets judges know that people are watching, and scrutinizing, what they do. It’s not just one litigant who cares whether he wins, but an issue that matters to all.
Signing on to an amicus brief isn’t an endorsement of every word, every aspect of every argument, every nuanced detail and every case cited. It may be, but isn’t necessarily. What it is, and what is should be, is an affirmative assertion by a lawprof that she feels strongly enough about the issue to put her reputation behind the outcome, even if not every crossed “t” or dotted “i”.
This isn’t to suggest that a brief they are somehow obliged to sign on to a brief they find offensive, or fundamentally wrong, and no doubt that’s not what they’re going to do anyway. But if its important enough, close enough, meaningful enough, that they are willing to throw whatever weight they have behind it, then it satisfies whatever “ethical” questions linger in the details.
And if the issue is ethics, consider the failure to sign on to an amicus brief, to support an outcome that will help people, bring about the right result in the law, to be an abdication of responsibility for improving the law and contributing to the best resolution a very real ethical failing. As much as the path taken to reach an outcome matters, sitting silently while a bad outcome happens is an ethical failure. We, lawyers and lawprofs, have a duty to contribute to a better state of the law, and there’s no comfort to be taken by sitting on the sidelines as bad law develops because we aren’t in absolute agreement about every detail of a brief.
If it matters, sign it. And if there’s a signature, it should mean something. What it means is that a lawprof felt strongly enough about the outcome to put his integrity on the line to support it, even if its not precisely what that lawprof might have written himself. And there’s nothing wrong with that.
Update: At PawfsBlawg, Paul Horwitz asks the question of whether Fallon’s article is a “no-brainer.”
The reason I ask this question is that it seems utterly obvious to me: of course legal scholars (and scholars from other fields who sometimes submit amicus briefs, like historians) cannot just sign briefs willy-nilly, or on the sheer basis that the signer agrees with the desired outcome or the general drift of the argument. As long as a brief is designated a scholars’ brief, each individual who signs it must be convinced of the detailed arguments made in that brief. Period. Fallon argues that many professors who sign amicus briefs don’t live up to that obligation, and I believe he is right. My operating assumption is that when this happens, it’s because the signer has an ideological commitment to some outcome and is willing to accept some arguments he or she may not agree with, or to sign without looking closely and deciding whether he or she agrees on the particulars or not. I consider this an abdication of scholarly responsibility, and although Fallon nicely lays out some of the underlying issues and complexities, ultimately I see this as a no-brainer.
It’s writings like this which make me want to take Horwitz into the men’s room and show him the joys of a decent swirly. Could it get any more pompous and self-absorbed, particularly when the rest of us constantly wonder whether you have any reason to exist at all?
The word is that he’s a fighter, a top trial lawyer. There is nothing to preclude a lawyer with great skill in the courtroom from also having larceny in his heart. The United States Attorney’s