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Tuesday, January 31, 2006
The Intellectual Value of Amicus Briefs
This term,* the Supreme Court will decide one of the most important cases involving the interpretation of treaties as part of U.S. domestic laws that it has ever faced. In Sanchez-Llamas v. Oregon, the Court will consider whether the Vienna Convention on Consular Relations creates a private right of actions for aliens in U.S. courts. It will also decide whether the treaty requires the suppression of any evidence seized in violation of the treaty. Finally, it will decide what level of deference or comity U.S. courts owe to the International Court of Justice.
Paul Stephan, a law prof at UVA, has filed a terrific amicus brief in support of the respondent states Oregon and Virginia arguing that the Vienna Convention does not create such private rights of enforcement. A number of law professors have signed the brief (including me). A more detailed summary of our arguments can be found at my regular blog Opinio Juris.
I know there is lots of skepticism on this blog about the usefulness of such amicus briefs, especially ones purporting to represent the views of law professors. And some of the same objections that I raised about blogging here would apply equally to amicus briefs because they do force scholars to take stands on issues about which they are writing and researching.
But just like blogging can be a useful way to develop one's thinking about legal questions, brief writing sometimes sharpens the way I think about an issue. So it's a trade off.
I do object to briefs that rely too heavily on the credentials of their signers. I deeply respect all of my co-signers and I enjoy basking in their reflected glory, but even their rather impressive scholarly reputations are unlikely to make a big dent in the Court's thinking.
I also don't have any illusions that this brief will dramatically change the outcome (although it deserves to given how well it is reasoned and thought out). But even if it is never read by the Court, I think it has been a worthwhile intellectual experience.
*apologies. I accidentally posted an unfinished version of this post under a different title.
Posted by JulianKu on January 31, 2006 at 12:01 AM | Permalink
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Comments
Julian writes: "I do object to briefs that rely too heavily on the credentials of their signers. I deeply respect all of my co-signers and I enjoy basking in their reflected glory, but even their rather impressive scholarly reputations are unlikely to make a big dent in the Court's thinking."
I disagree. In my experience, serious credential-based heft is nearly a necessary, though certainly not a sufficient, condition for getting a professors' brief like this to be taken seriously. (I don't say this with reference to anything particular about the signatories or content of the brief Julian has signed, which I look forward to reading but haven't yet read.) Whether or not this *should* be the case is fair question, but I think it clearly *is* the case.
I'm not saying a brief needs dozens and dozens of names. In terms of influencing the Court, that sort of thing doesn't help much. The key is to feature prominently a couple or few academics known to, and trusted by, key members of the Court. Although practices vary across chambers, I think those briefs get a close look pretty much everywhere. From there, it's a matter of how good the argument is and how well it fits into any particular Justice's developing sense of the case.
Posted by: Trevor Morrison | Jan 30, 2006 10:45:02 PM
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