Final Comments on the Controversial Reply of Amici

So, in my last post, I linked to a wild brief I filed. Amici and I knew not everyone would like it, but we do like it. Before moving on to my next topic, I’ll try one last post on this topic to explain why we filed it.

First, let me start by saying a few things about our objectives as amici. Our overall objective is to encourage judges to apply the law in light if true historical events, not based on broad assumptions about history, which often are inaccurate. If we don't use some colorful rhetoric, it is quite easy for our briefs to be forgotten at the bottom of the big pile of MSJ paperwork. The judges, but probably not most clerks, can be receptive to the observation that applying legal concepts mechanically to historical claims results in formalistic, unfair opinions. Judges also are able to reflect upon what to do about it. A three-judge Second Circuit panel recently vacated the judgment in the first Holocaust-era art trial in forty years, in which some of the same amici filed a brief. We properly represent a different interest than the partisans with claims and defenses on the line. We properly seek to inject some humanity into the legal process. 

Second, I’ll talk about our reply brief specifically. We think the reply has a shot of actually making it past the clerk to the judge and calling attention to what we have to say overall.  People have commented that what we did is risky.  What do we as amici have to lose? We are not a party in an ongoing relationship with Yale's counsel or the court.  On the other hand, we probably are not done filing briefs in restitution cases. The repeat players are paying attention to what we are saying and doing and would notice whether we fought back or not. In the end, the judge in the particular case will allow the brief into the record or he won't; I really don’t believe that anything in the silly opposition or our reply is likely to affect that.  I realize some seem to disagree, but I’ll leave it at that.

So, next I’ll move on to the specifics of the opposition and our reply. We wanted to call attention in a blatantly obvious way to the unfounded biases Yale's counsel attempted to inject in a subtle way, which in my opinion were about as subtle as a fart in a car. Hopefully what I say below demonstrates why, but if it doesn’t, then I guess we can just agree to disagree on this. In my opinion, Yale's counsel arrogantly filed a public document treating amici (and me) like incompetent hacks, which we absolutely are not.  Here are notes of my critical reading of the opposition [with some correlating notes about the reply]:

1. Page 1 leads off with a clearly minority case that has been called into question by another case without any disclosure of that status.  Was it assumed we wouldn’t even bother to Shepardize it? 

2. Page 1 says, despite the description of amici's deep expertise in App. A to the Motion, that they have no unique level of expertise. [The expertise we claimed concerned application of legal doctrines to historical claims in light of true historical context. I won’t rehash that experience here.]

3. Page 2 continues using minority view cases without disclosure.

4. Page 3 says amici have "no special interest" because amici didn't publish on the Act of State doctrine or the laches doctrine.  Since when did publication on the subject of an amicus brief ever become a requirement in the slightest to be an interested amicus?  Counsel is the legal advisor to amici, and even counsel doesn't have to publish.  [The reply summarizes amici’s expertise, but as counsel I did not disclose my expertise. We figured if Yale's counsel, who likely knows about my expertise, was demanding that we hold ourselves to the expert standard, instead of the amici standard, then we may as well let the judge see my credentials and on-point publications. FYI: There is an unresolved choice of law issue; N.Y. is one option.]

5. Page 3 identified the institutional affiliation of only one amici at UND and me at NKU (and didn't even bother to spell out the name of my law school), despite the fact that amici are from all across the country. If there is no negative connotation being urged, then why single us out?

6. Page 3 specifically calls out the "Jewish Studies" professor; Professor Berenbaum is one of the world's foremost Holocaust historians. Can't a Jewish Studies scholar be concerned about the development of the historical record in cases not relating to Jewish causes?  [By the way, it was this reference that triggered the New Testament reference, not amici's desire to be "Christlike" as someone suggested in the comments to the last post.]

7. Page 4 accuses Professor Paust of signing on just because one of two co-editors of one of his books happens to be co-counsel for the party we think has the Act of State arguments largely right.  [Yale's counsel's prior briefs on the doctrine are simplistic and wrong.  They are what triggered me to reach out to other potential amici, including Professor Paust who has written directly on the Act of State doctrine. A formalistic Act of State precedent established could be problematic for other human rights cases.]

So, in sum, we concluded there was no need to address the weak, biased, "substantive" arguments made in the opposition brief. I’ve never written anything like it before, although I do enjoy writing with some fire. Not everything though. For instance, I don't think I ever drafted a securities class action defense brief with any passion at all.  I think my keyboard at Milbank was wired to shock me if I even tried to muster any passion while drafting one of those.  I do not believe that sterility is not a virtue when it comes to legal writing, however. In fact, most cases in which amicus briefs are filed probably triggered some sort of passion in the filer (barring perhaps, tax cases?). Finally, I'll pose this question in a final attempt to make my point: If amici and I had been Harvard professors, even with all of our other credentials being equal, would the opposition ever have been filed? 

OK, that’s all on that topic for me. Perhaps you still wouldn’t have fired off a brief like that. I can understand not everyone would. We debated it, but came out where we did. After a catnap, I’m catching a plane out to the West Coast for quite a long trip, so I won’t be able to comment on this further. Nonetheless, I should say, that the comments I received behind-the-scenes on this topic were worth their weight in gold and I appreciated the perspectives provided in all of the comments – public or private.