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Thursday, October 27, 2011

Scholars and the Briefs They Sign (qua Scholars)

I'm back in the 'Hassee after a quick trip to NYU earlier this week. Unfortunately, I'm missing the colloquium today for Dick Fallon's paper on scholars and the amicus briefs they sign. Somewhat oddly, the paper is part of the festival of ideas hosted weekly by Dworkin/Nagel. I say oddly because the colloquium is ostensibly about social, legal, and political philosophy, and the paper doesn't really have much to do with any of those topics. That's not a mark against the paper. Like all of Fallon's work that I've read, it's careful and thoughtful, and indeed philosophically informed. It's just a mite odd given the venue. That said, because the venue frequently attracts leading con law scholars who sign amicus briefs of the sort that worries Fallon, maybe it makes good sense for Fallon to go into the proverbial lions' den. 

In any event, I had a chance to peruse the paper earlier this week and I think Fallon's right to push legal academics to be more circumspect about the amicus briefs they sign. Fallon cites Ward Farnsworth as having raised some of these issues a decade ago. Here's Farnsworth's basic point: "when academics offer opinions in their professional capacities, they should use the same care and have the same expertise called for in their published professional work, or should disclose that they are adhering to a lesser standard. Equivalently, they should not sign documents unless they would be ready to defend them orally in the tribunals to which the documents are being presented." It seems that Fallon largely agrees with this. Count me in too. But Fallon proposes a few other norms to guide the development of scholars' briefs. 

FWIW, I think I've only signed fewer than a handful of amicus briefs, but it's true that I haven't always been as familiar with the sources cited in them as would be appropriate under Farnsworth and Fallon's prescriptions. Since I have a non-trivial interest in the ethical standards of legal scholarship, I find myself feeling a bit shame-faced. I'm glad Fallon's new paper provoked this greater mindfulness on my part, and I hope his essay and the norms it seeks to promote will find a warm and welcome embrace by other prawfs as they contemplate their participation in the seemingly growing practice of filing scholarly amicus briefs with the courts.

 

Posted by Dan Markel on October 27, 2011 at 04:10 PM in Article Spotlight, Dan Markel, Legal Theory, Life of Law Schools | Permalink

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