Monday, April 25, 2016
Should I Join Law Prof Amicus Briefs, Write White Papers, Or Do Other Advocacy Work? (Jr. Law Prawfs FAQ)
My guess is that today's FAQ takes a slightly different form based on one's field of research. For me it first presented itself as a request to join a law professor amicus brief. Since then these requests have included drafting white papers and participating in other advocacy projects.
So the question, framed broadly, is: What is the value to one's scholarly research agenda, especially as a junior scholar, in engaging in legal or policy advocacy within one's field?
In tackling this question, it might be helpful (or not) to put to one side the other benefits of engaging in advocacy work as a law professor, such as service to the broader community (and making a difference in the world!) and instead focus on the impact on one's scholarly profile. Also, as with prior questions, we're assuming the tenure work is getting done and the Ask Your Colleagues cardinal rule has been followed.
Let's start with law professor amicus briefs, as my sense is that there is quite a division of opinion on whether law professors should join them. As a former Kennedy clerk who teaches and writes in administrative law and constitutional litigation, I receive a fair number of requests to join law professor amicus briefs. My general rule is to not join them, unless they are squarely within my area of expertise, I have the time to thoroughly review and comment on the draft, and I agree completely with the final version. I have not joined many amicus briefs; in fact, I think I've only joined one, for a case in the Ohio Supreme Court. Time constraints for review are usually the main barrier, and I hope to join more briefs going forward.
One of the main benefits of working on and joining law professor amicus briefs is that it gives one an opportunity to interact with other scholars in one's field and further strengthen one's networks. Another potential benefit is that it could provide an opportunity to get one's scholarship into the brief before the Court -- bringing more exposure to one's research. The adlaw profs brief in support of the United States in the pending immigration case United States v. Texas is a terrific example of that. Although this may be an obvious point, one should make sure one agrees with everything in the brief. Having drafted a fair number of amicus briefs with my lawyer (not academic) hat on, there is often a lot of room to maneuver in an amicus brief to allow more parties with diverse views to join.
Of course, we're not talking about the somewhat distinct scholarly project of writing one's own amicus brief in a case. The scholarly benefits of that may be different and perhaps can be much greater. Stephen Sachs' amicus brief in Atlantic Marine Construction comes immediately to mind. My coauthor Aaron Nielson and I are just waiting for the right qualified immunity case to file a law professor amicus brief based on our empirical work on qualified immunity to encourage the Supreme Court to, among other things, require lower courts to give reasons for exercising (or not) their Pearson discretion to reach constitutional questions.
As for white papers and reports for organizations, my guess is that the scholarly cost-benefit analysis is going to vary greatly depending on the field, the organization, and the topic. That's been my experience. The first white paper I did was on the importance of cost-benefit analysis in financial regulation. My colleague Paul Rose and I coauthored the report for the U.S. Chamber of Commerce, and we presented the report and our findings at a conference at the Chamber shortly thereafter. At the time (though not now), Paul and I were among the few defenders of cost-benefit analysis in financial regulation, so the report got a lot of buzz and "but see" citations.
The second report was commissioned by the Administrative Conference of the United States (ACUS) to assess the role of federal agencies in the legislative process, with a particular focus on technical drafting assistance. ACUS is a government agency composed of government agency officials at various agencies and public members (including a lot of law professors) that commissions research on the federal regulatory state. This was an amazing opportunity, as ACUS opened many doors at federal agencies for me to conduct interviews and surveys for the project. The feedback from the ACUS members during the drafting and recommendation process was invaluable. I should note, though, that this was a tremendous amount of work. For example, the final product, with agency-specific case studies in the appendices, reached 90 pages, and I spent hundreds of hours on the project.
Both projects built on existing research interests and have led/will lead to more traditional scholarship. Both also included some monetary compensation for the work, despite both reports being independent from the sponsoring organizations (and ultimately departing at least somewhat from the organization's position on the issues). If you decide to do any consulting work for which you receive compensation, I highly recommend that you disclose those outside activities, even if your institution does have a form or policy for that (mine doesn't). For instance, per John Coates' helpful advice, I post a financial disclosure form on my faculty profile. It's also worth flagging specifically any consulting work directly related to a subsequent law review article in the article itself.
So what have been others' experiences regrading the scholarly value of doing advocacy work in their field? I hesitated to do a FAQ on this topic because my hunch is that the answer(s) to this question will depend so much on one's field, in addition to the specific opportunity. But because I think advocacy projects can (and cannot) present incredible opportunities to build one's scholarly profile, especially as a junior scholar, I thought I'd post it and see what others think.
A junior prof here with a question about this -- are Law Prof amicus briefs usually written with pro bono counsel? (The two examples you link to both have fancy supreme court litigators on the briefs.) What is the role of counsel in these situations? I imagine that could significantly impact how much work it is.. thx.
Posted by: anon | Apr 25, 2016 9:20:17 AM
Especially at the Supreme Court level, pro bono counsel is often involved in the process, and my guess is it's a double-edged sword. No doubt the lawyers reduce some of the time (and expense) of the process, but they may also control the pen, at least on the first draft, which may make it harder to join/agree with everything said. I think the latter is part of why some scholars seem to be strongly against law prof amicus briefs.
Posted by: Chris Walker | Apr 25, 2016 9:29:18 AM
Actually, let me add a little more context to the conventional process of law professor amicus briefs: In my experience, most of the time the lawyers for one of the parties decide that it would be helpful to have a law professor amicus brief submitted -- either at the cert stage to raise the profile of the case in the eyes of the clerks/Justices or at the merits stage to raise an issue or lend more credibility to an issue already briefed. They then reach out to professors who may be interested, and somehow the professors also secure pro bono counsel to help with the briefs (I'm not quite sure how that happens).
The named parties cannot fund the amicus brief, as that would require a disclosure of such funding, which is highly disfavored by the Court. So there is a bit of dance here. In other words, unlike the Stephen Sachs brief that I'm guessing he just decided to do on his own, most law professor briefs are initiated by the party seeking support for a position.
Now, if you wanted to write a brief that supported one side in a case, I'd suggest reaching out to the party you want to support and expressing interest, explaining your take, etc. (Eventually you will have to reach out to all of the parties anyway, to see consent to file the brief.) My guess is that they will then help walk you through the process, including perhaps helping you to secure pro bono counsel.
Posted by: Chris Walker | Apr 25, 2016 9:36:09 AM
Advocacy in your field can be a fun and interesting way to further your ideas, but I' don't think joining a law professor amicus brief really counts. Joining a law professor amicus brief is the academic equivalent of using a Twitter hashtag. It takes ten seconds and shows support for a cause, but that's about it.
Posted by: Orin Kerr | Apr 25, 2016 11:20:15 AM
Contrary to what Orin Kerr suggests, I would strongly urge junior faculty not to sign onto a brief they have not read, and reading the brief can take some time. Obviously, no one should sign a brief that they have not read but it seems to happen all the time even though it can come back to haunt folks in depositions etc. I recently read a Professor brief in the Apple iPhone dispute with the government that really was not well done and I suspect some of the faculty who blindly signed on could come to regret that at some point, though I think the general assumption is that the briefs are harmless. In any event, I think there is likely more at risk for junior faculty on these things so some caution is in order.
Posted by: MLS | Apr 25, 2016 1:56:08 PM
MLS, to be clear, I am not suggesting that law professors should sign on to amicus briefs that they haven't read. To the contrary, I think it is a terrible practice, and I have written and spoken against it. I am just pointing out that this is indeed what usually happens, which means that no one should think that the act of signing on to a brief is some kind of major accomplishment.
Posted by: Orin Kerr | Apr 25, 2016 3:11:54 PM
I agree with Chris that writing amicus briefs, white papers and government studies provide a nice way to connect your scholarship with others in the legal community and to develop new ideas. Sometimes those projects also build off each other--illustrating how amicus briefs, blogging, white papers and scholarship can be part of a seamless research agenda.
We wrote two amicus briefs and conducted our own ACUS study this past fall. In our study, we examined the ways that agencies and other non-Article III tribunals use class actions and other complex litigation techniques to resolve large groups of similar cases. Like Chris, ACUS provided us invaluable access to agency adjudicators, staff and policymakers to explore innovations on the ground that we think will have important implications for administrative law and class actions in federal court. While blogging about those ideas here, some reached out to us to consider writing amicus briefs in cases raising related issues. Sergio Campos and I wrote an amicus brief in Tyson Foods (http://ssrn.com/abstract=2669672), which was cited by the Supreme Court and seemed to have some impact. But more important, it provided us with an opportunity to connect with other law professors and lawyers, write another amicus brief with some of the same friends, and inspired us to write another article following up on Tyson. (Our connections forged with pro bono counsel in Tyson also helped us when we needed to file another amicus brief in the Federal Circuit.)
An interesting side-question is thinking about where the dividing line is between "traditional" scholarship and these kinds of studies and amicus briefs. I've spent a lot of time lately thinking about how to convert our ACUS study into a more theoretical, "law-review type" project. And we're currently doing the same thing with our amicus brief in Tyson. On the one hand, I think we've been more successful when we've crafted our briefs and studies in a more scholarly manner--taking a more detached approach and focusing on the ramifications of a particular decision or issue to other areas of law. And yet, we still feel the need to convert these papers into something that feels more article-like, for better or worse. As we do so, I'm not sure how big too go, or alternatively, what to leave on the cutting room floor. I'd be curious to hear how others have made the transition from amicus briefs/studies to articles (or visa versa).
Posted by: Adam Zimmerman | Apr 25, 2016 3:24:25 PM