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Monday, June 13, 2011

Other Things to Consider Before Doing Amicus Work

Do you feel passionate about the issues? Is there repeat litigation? If so, your phone will ring. How far are you willing to go? Are you prepared to say “Yes” to the first case and “No” to all others? Where are you prepared to draw the line? By court (federal versus state, district versus court of appeals versus Supreme Court, particular jurisdictions where you are admitted)? By stage of the case (trial, appeal, cert petition, only after cert is granted)? By the particular facts? If based on the facts, are you willing to spend the time to understand each case’s facts? My advice is to know the cases in your field as they are filed so that you can know when to simply tell someone “No” up front instead of giving him or her false hopes.

Also, in terms of self-interest, do you have tenure? First see the posts above to get a sense for how much time filing amicus briefs demands. Second, will you be somehow retaliated against for saying something unpopular about someone popular? My faculty and Dean have been completely supportive. I don’t know whether all would be. I’ve filed briefs against these powerful and beloved museums: Museum of Modern Art, the Guggenheim and the Metropolitan Museum of Art (and I’ve written about others’ acquisition practices). I filed one brief against Yale University, where it seems almost 100% of legal academics have studied, taught or esteemed to publish at one time or another. The Yale brief speaks objectively about the application of the Act of State doctrine and the laches doctrine to historical claims. It takes no position as to whether Van Gogh’s The Night Café, taken during the Russian Revolution, should be restituted to the claimant, Mr. Konowaloff, but it clearly states that Yale did not meet its burden of demonstrating that the Act of State doctrine barred the claim. Will I ever get another speaking invitation during my next 30 years in the academy? Can I kiss that dream of publishing in the Yale Law Journal “goodbye.” (I’m sure the next article wasn’t going to be “the One!")

So, in the end, I’ve been content with my choice. I have strong views on a few more cases, but have made tactical decisions about the cases in which I’ll appear on behalf of amici. Perhaps with enough planning, I could structure a seminar around a particular brief or two? If not, I probably can’t keep up my current pace of amicus work on top of a (self-imposed) heavy teaching load while fulfilling my personal scholarship agenda. Nonetheless, I intend to continue getting involved in the practice-side of my field and reform efforts. This practice is understandably not viable or desirable for everyone in every field, but I think it has made me a better scholar, teacher and public citizen than I otherwise would have been.

Now, I’m going to shift gears for the rest of my posts.

Posted by Jen Kreder on June 13, 2011 at 09:51 AM | Permalink


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I hope profs are reading what they sign! The reason why I think some judges might take offense if a bunch of law professors are the only ones on the brief is two-fold. First, if you look at cases where parties try to use law profs as experts, there is a tone in some of the cases that it's the judges, not the profs, who are the experts here. Second, if it's a bunch of law profs saying something, then that almost counsels that the brief's legal points are obvious and the judge shouldn't need law profs' help to reach those points.

Orin, if your work is the type that you are the only real expert or your view is unique but valuable, then I'd say go ahead and file on your own. I remember a post recently (I believe on Volokh) indicating that others do the same. In my line of work, I try to find a broader principle at stake in the case and build a coaltion. Good luck!

Posted by: Jen | Jun 13, 2011 7:40:36 PM

Thanks, Jen.

The problem I've had with my amicus briefs is that they tend not to have an obvious constituency: The briefs I have filed or wanted to file usually propose some sort of middle ground or make a procedural point, and that doesn't have an obvious base of support in groups or movements. It's much easier if you happen to have a position that matches that of an organization; I agree that makes for an easy connection. The harder question is what to do if you don't know of anyone else who has the same view as you do.

I don't know if judges take offense from briefs signed only by lots of law professors, but the more savvy ones are less likely to pay attention to the brief: I think they know that most of the big name professors who tend to sign those sorts of things generally don't read what they have signed. It might work with the clerks, though, who probably are less savvy about these things.

Posted by: Orin Kerr | Jun 13, 2011 4:20:01 PM

Hi, Orin. As for whom to represent, I think it is perfectly appropriate to file on your own although I have not done that. Particular organizations are well known and courts are more likely to pay attention to briefs filed on their behalf. The opposition may try to make some hay if part of an organization's mission is advocacy. Thus far, I have tried to put together a coalition of historians, law professors, lawyers and organizations for each brief (filed in historical restitution cases). I think some judges may take offense if the brief is filed just by law professors.

As for who pays, I will accept donations from amici for costs, but my home school, co-counsel and I have picked up costs.

As for retaliation, I was being facetious about YLJ, but I do think people, particularly those without tenure, should carefully evaluate the facts and parties involved. For example, some of my work reflecting on historical research says that some people in museums and some who donated to museums most likely knowingly trafficked in Nazi-looted art. I have referred to some as Pillars of Society. I think it's important that it be said, but I could see someone at a New York law school running into political problems if he or she said the same things.

I hope I answered your questions. I'm happy to answer more. I think we as professors have some value to add by doing quality amicus work.

Posted by: Jen | Jun 13, 2011 2:23:15 PM


There are two things that have puzzled me about writing amicus briefs. I was wondering if you could comment.

The first puzzling thing is whether the client is just the Professor who is the author of the brief, or whether it is better to find some sort of group to be the client. It seems to me that if I'm writing a brief in my area and it represents my views, I'm really the friend of the court. I'm really the "client," and I have submitted briefs like that in cases before. At the same time, some have suggested that this is inappropriate, as it looks unseemly for a professor in his/her individual capacity to be the client. Instead, they say, you should find some group, "the Institute for Good Law," or the "Center for America," or some-such group, and that they should be the client so the author isn't. Any thoughts on this?

Second, who pays? In the lower courts, costs are modest, and presumably your home school can pay for the copies. But I'm curious what you do at the Supreme Court level, where the norm is formal printing and costs can be around $1,000 for printing up an amicus. Do you just pay out of pocket? If not, who does?

Also, in response to your concerns about retaliation, I can't imagine anyone caring about your amicus briefs unless you express an unpopular political view. To go to your example, I think it's safe to say that no one the Yale Law Journal cares that you filed a brief in an art case that was adverse to the interests of the university.

Posted by: Orin Kerr | Jun 13, 2011 1:26:50 PM

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