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Wednesday, April 11, 2018

Sole authors of casebooks and amicus briefs

One common comment about the legal academy is how odd the scholarly enterprise looks. To offer nothing particularly new... the journals usually aren't subject to blind peer review. Simultaneous submissions to multiple journals with expedite decisions is wholly foreign to most other academics. And, of course, most lengthy articles are drafted by a sole author. I think it's fair to say that there's been an uptick in co-authored pieces, whether because of an increase in interdisciplinary scholarship or the need for additional contributors in empirical work. But sole authors remain the norm.

The same cannot be said for much of the other work that legal academics do. Casebooks often have a few co-authors. Perhaps that's because the casebook is a large enterprise, or because it may include a variety of sub-topics that call for different expertise, or because one academic is on the way out and invites another academic on the way in to help transition.

And amicus briefs are sometimes signed by dozens, if not hundreds, of academics. Sometimes this might be a larger collaborative affair in short-fuse litigation, or sometimes it may (ed.: don't say it!) serve as virtue signalling to fellow academics who signed the brief (even if one believes everything within the brief!). (Let's face it: we've all been on listservs with a plea for signatures on an already-completed brief.)

While there is increased recognition of the value of co-authored law review articles, I'm not sure enough recognition has been given to the opposite in casebooks or amicus briefs--specifically, those with a sole author.

Two casebooks I regularly use are Professor George Fisher's Evidence and Professor Gary Lawson's Federal Administrative Law. The students, I think, can sense that there is an authentic personality in the text, because, perhaps, the author is able to speak with a single narrative voice, without piecemeal chapters or compromises among co-authors in communicating a point. Of course, I often use co-authored casebooks in other courses, but these two strike me as particularly rich. (A third I'd include in this category is the late Professor Richard Nagareda's first edition of The Law of Class Actions and Other Aggregate Litigation.) And, of course, I can only speak of the fields where I've spent time perusing casebooks.

I've also noticed a few recent sole author amicus briefs in the United States Supreme Court from law professors, which have struck me as unusually thoughtful (sometimes even persuasive!).

Professor Steve Sachs in Atlantic Marine Construction (in support of neither party, and earning discussion in Part II-C of the Court's opinion);

Professor Orin Kerr in Carpenter v. United States;

Professor Aditya Bamzai in Ortiz v. United States (in support of neither party, and yielding an opportunity to participate in oral argument);

Professor Richard Re in Hughes v. United States (in support of neither party, and earning significant discussion at oral argument); and

Professor Jenn Mascott in Lucia v. SEC.

(To name only a few!) This is not to say that only these amici have influenced the Court, of course (and on such matters I would heartily defer to sound analysis from the outstanding work of Adam Feldman!), but it is to say that sole authors have received some (and perhaps disproportionate) favorable attention lately. I wonder if we might not only underappreciate their contributions, but also see an increase in such work in the future. (It's also not to minimize the dual-authored amicus briefs, sometimes a pair of authors who've written on the subject before and file as amici--but I'll let someone else chronicle those efforts....)

Perhaps I have an overly romanticized notion of the sole-authored casebook and amicus brief. (Indeed, I imagine some of the named individuals might have much more reality-oriented views on the costs of such activities!) But, they strike me as interesting opportunities worth serious consideration.

So... any favorite sole-authored casebooks or amicus briefs? Or better explanations for these phenomena?

Posted by Derek Muller on April 11, 2018 at 09:11 AM in Article Spotlight, Books | Permalink

Comments

I don't know that anyone views signing onto a brief as the sort of scholarly effort that might be equated with drafting such a brief. Sure, I've commented sometimes, but I'm doing so as the client, not the author. I've signed on to plenty of amicus briefs solely drafted by an individual, and I've never thought of it as anything other than either virtue signaling or some other form of way to forward my interest (which is surely true of those briefs I've signed where I did NOT agree with everything in them). Indeed, that's the whole point - I'm an interested (third) party.

Thus, I wonder whether there is some difference between the solo drafted amicus brief that seeks no signatories and the solo drafted amicus brief that represents a group of clients. Neither is co-authored in my view, though.

Posted by: Michael Risch | Apr 11, 2018 9:49:03 AM

In my field, I'm partial to Orin Kerr's Computer Crime Law casebook and William McGeveran's Privacy and Data Protection Law casebook.

Posted by: Alan Rozenshtein | Apr 11, 2018 9:50:06 AM

I expect to teach trademark the year after next & I am planning on using Barton Beebe's free casebook. I am also working on revising my own free, open-source copyright casebook. No guarantee of quality, but the price will be right.

Posted by: Brian L. Frye | Apr 11, 2018 6:25:26 PM

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