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Monday, July 25, 2011
Amicus Briefs and the Academic-Judge Divide
In discussions about the supposed uselessness of legal scholarship to judges, I often ask: “should law professors file more amicus briefs?” Responses are mixed, but my general impression is that judges see law professor amicus briefs as just about equally, if not more, useless than their articles.
This, to me, is a pretty illuminating attitude. The usual complaints about law review articles—that they are too abstract and don’t grapple with legal materials like case precedent in a serious way—really can’t be said about law professor amicus briefs, which usually do make legal arguments in a lawyerly way. If what judges are really seeking from law professors was help in legal analysis from a group of reasonably intelligent individuals with expertise in an area and time to conduct research, then an amicus brief should answer all of those requirements.
But help in legal analysis and decision-making is not what judges are really looking for. A modern judge has lots of help on legal analysis from numerous sources like law clerks and staff attorneys, in addition to the parties’ attorneys, with Lexis and Westlaw making research ever more easy. The contribution that a law professor can provide on top of this is minimal. What judges really want from law professors are convenient citations to support an outcome the judge already has in mind, but that the judge wants to attribute to an authoritative and “objective” source other than the judge himself. An amicus brief provides less of the appearance of authority and objectivity than a law review article does. Our depriving judges of one traditional source of the sheen of objectivity that is necessary to sustain the formalist myth is what really drives the complaints from those quarters.And if I am wrong, then we have a really simple solution to the Academic-Judge divide.* Instead of calling for more doctrinal law review articles, judges should call for the same doctrinal analysis to be filed as amicus briefs. I'm sure many law professors will be more than happy to comply.
* I should note that my skepticism of the "legal scholarship is useless" argument applies only when judges make this argument. I am rather sympathetic when the complaint comes from practicing lawyers, who don't have the mechanism of amicus briefs, and who often do appreciate the insights that law professors have the ability (but little inclination) to bring to legal practice, as demonstrated by the fact that they will hire professors to be consultants and seek professors as speakers for CLE seminars (and, of course, it would be chutzpah to say that consulting works as a substitute for practical scholarship).
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TJ, would you consider Orin Kerr's scholarship "doctrinal"?
Posted by: not | Jul 28, 2011 1:53:21 PM
Will,
"I do think the form of an articles has value, other than legitimization value, that amicus briefs do not. Articles can be written in advance and sit in a database where they are easy to find and cite. As others have discussed, outside of the Supreme Court, it's hard for non-parties to learn that their assistance in a case would be useful in time to file an amicus brief. So it is probably a better use of their time for academics to write useful articles, rather than useful amicus briefs."
This is a reason why articles may be more cost-effective for lawyers than amicus briefs. But it is also the exact reason why they're less cost-effective for judges: whereas it's difficult for the professor to learn about the case, it's harder for the judge to find the article than if the amicus brief is submitted to them.
Maybe what we need is more submissions of articles to courts in place of amicus briefs. But judges will of course not look kindly on that: too self-aggrandizing, in the mode of, "I have something really important to say, but I won't do the work of specifying it down to the facts of the case. Therefore, read my really long article!"
That's why I suspect that judge's frustration with the academy is more due to (laziness) (time constraints) that mean they don't want to read the long, interesting law review articles in search of new ideas. Because they're approaching it from a utilitarian perspective rather than one of intellectual inquiry, the payoff just isn't great enough.
Posted by: Andrew MacKie-Mason | Jul 27, 2011 9:00:59 PM
Orin, the Court takes far fewer cases on uninteresting (e.g. ERISA and bankruptcy) issues than people think it should. And if it had the "right" balance, then the complaint that law professors are spending too much time focusing on the Supreme Court and neglect discussing issues in lower courts (which I think I can fairly attribute to WPB and Brad, and before this I would have attributed to yourself) wouldn't make sense, since law professors would then be spending their time on the "right" priorities.
Posted by: TJ | Jul 27, 2011 7:03:56 PM
There are only nine US Supreme Court justices. If you include the clerks the whole 'firm' has less than 30 lawyers. Neglect in some areas is an inevitable result of limited capacity. In contrast there are around 5,000 tenured law professors in this country. Neglect is thus much more a matter of choice than necessity.
As for the claim that the entire bar is just as obsessed with the US Supreme Court as the professoriat, I can tell you from experience that is simply not true. Even among litigators the vast majority are far more concerned with state and district court cases, and the occasional on point court of appeals case, in the area they practice than the hot off the presses Supreme Court cases.
In the final analysis Supreme Court Justices and tenured law professors share one very important characteristic - no accountability other than their own consciences. Justices are subject to very harsh abuse in very public forums, I hardly think a tiny bit of turnabout is unfair. It would be really nice if the next time I received a solicitation from dear old alma mater, I was immediately reminded of a terrifically useful article a professor there had written which really helped me strengthen a brief I was writing.
Posted by: Brad | Jul 27, 2011 7:01:58 PM
TJ:
*****
If law professors started writing doctrinal scholarship, they would still write doctrinal scholarship on the topics that they file amicus briefs on now: i.e. the ones that reach the Supreme Court and the D.C. Circuit.
*****
I don't understand this. For the most part, cases only reach the Supreme Court after being debated extensively in the lower courts and producing sharp disagreement there. As a result, only a very small subset of the interesting issues in a field ever reach the Supreme Court, and those that do almost always started in the lower courts and state courts.
*****
The Supreme Court neglects some issues for a reason: because they have a choice and they choose topics that are "interesting."
*****
That must be why the Court takes so many ERISA and bankruptcy cases.
Posted by: Orin Kerr | Jul 27, 2011 6:52:49 PM
A Clerk,
Can you give me a hint about what the issue is? Ok, ok, just joking.
Seriously, I think your point about terrible briefing in the court of appeals is exactly right. It's incredible how bad the briefing is in the circuit courts. When I read a really terrible opinion from a court of appeals, I'll sometimes take a look at the briefs just to see what guidance they gave: More often than not, the briefs were totally useless. A lot of areas of law are tremendously technical, and take a lot of time for someone to get up to speed: The reality of poor briefing, busy dockets, and limited time per case inevitably generates some major errors. I think those are the cases in which an amicus brief is most helpful: Not in getting the judges to a particular result, but in making sure the judges (and their clerks) understand the doctrinal context and know the major cases.
Posted by: Orin Kerr | Jul 27, 2011 6:08:38 PM
Clerk: read the whole exchange. The commentators and I have debated your point. The short version is that you are quite right that many lower courts face terrible briefs. But the call for more doctrinal scholarship is not address to that problem. If law professors started writing doctrinal scholarship, they would still write doctrinal scholarship on the topics that they file amicus briefs on now: i.e. the ones that reach the Supreme Court and the D.C. Circuit. The Supreme Court neglects some issues for a reason: because they have a choice and they choose topics that are "interesting." Law professors like writing about the same topics for the same reasons.
Posted by: TJ | Jul 27, 2011 5:21:16 PM
"We are talking about a subset of cases where (1) legal arguments not already made by the lawyers, the law clerks, and the judges themselves might influence the court if it were made, and (2) are of the type that legal academics can be expected to address (i.e. not whether Prisoner X should get habeas). I think those are rare, though not non-existent."
I don't buy this at all. This might be true in the Supreme Court; it might be true in the D.C. Circuit. But in non-D.C. Circuits, where the bulk of caseloads is criminal law and criminal procedure, you generally see two kinds of briefs: (a) terrible ones written by flagrantly incompetent criminal defense lawyers, and (b) somewhat more competent but not terribly thoughtful briefs written by U.S. Attorneys from weak offices. I would say it's more often the case than not that the parties don't even cite many or most of the cases most relevant to our disposition. Most of these cases, of course, don't raise very hard issues, but some do, and in those cases a clerk, or a judge, is put in the position of deciding the case from scratch, with no help from the parties. Now, clerks are pretty bright, as are most appellate judges, but it's not at all the case that every good argument will occur to the clerk handling the case. After all, how could it be? I have a pretty tough Fourth Amendment issue on my plate; what's the chance that every good argument that could be made about that issue will dawn on me? Even a Fourth Amendment expert can't think of every good argument a case like that might prompt; law reviews are filled with novel arguments about the Fourth Amendment that no one ever entertained before. What's more likely to happen is that I'll spend my time developing arguments for what my gut tells me the outcome should be, and dismissing the most obvious arguments for what my gut tells me the outcome shouldn't be. But if Professor Kerr, for example, only knew of this case and had written an amicus brief, his thoughts, at the very least, would be vastly more insightful than anything the parties say, possibly would change my mind, or, possibly help me develop a better rationale for the outcome I want to reach than the rationale I'd develop on my own. Unfortunately, no professor has heard of or cares about this case, and new Fourth Amendment law is going to be made by a kid fresh out of law school sitting in front of a computer reading Westlaw, with no real help from the parties or anyone else. It isn't an ideal state of affairs.
Posted by: A Clerk | Jul 27, 2011 5:08:03 PM
TJ,
I do think our arguments have started to proceed in circles, and it's probably not beneficial for any of this thread's few remaining readers for us to continue to chase them round and round. I think we actually agree on plenty, though, and that much of what we disagree on is a product of differing empirical generalizations and specification of terms.
Posted by: WPB | Jul 27, 2011 4:18:37 PM
Will, I find it hard to argue that an article is easier to find and cite than an amicus brief, given that you need to search for the article but the amicus brief is delivered to your door.
You are right that outside of the Supreme Court, courts have a harder time getting amici attention. But that should at least mean that Chief Justice Roberts has no standing to complain.
And as for your suggestion that critics would shut up if they got more amicus briefs, I once again present to you the fact that CJ Roberts has not "shut up." (You can argue that the amicus briefs he gets flooded with are not "useful", in the sense that they are not brilliant or creative in raising new points, but then that brings back my point that you cannot expect the doctrinal scholarship that he wants to see created to be any more brilliant or creative).
Posted by: TJ | Jul 27, 2011 4:01:01 PM
And then we come back to point 2 in my 10:14:53 AM comment: "The form of an articles has value, other than legitimization value, that amicus briefs do not. Articles can be written in advance and sit in a database where they are easy to find and cite. As others have discussed, outside of the Supreme Court, it's hard for non-parties to learn that their assistance in a case would be useful in time to file an amicus brief. So it is probably a better use of their time for academics to write useful articles, rather than useful amicus briefs." I see no good reason for professors to write amicus briefs instead of scholarship on a given issue, and I see good reasons to write scholarship instead of amicus briefs.
All of that said, if academics DID suddenly start producing more useful, expert, amicus briefs, I bet some of the academy's critics would shut up.
Posted by: WPB | Jul 27, 2011 3:51:45 PM
Will,
So then we come to my final line of defense. So (1) there are overlooked legal arguments, (2) in an area where some academics have expertise, (3) the court is not getting enough amici. Then call for academic amici, either in a particular case or just generally. I would think that lots of professors would be delighted to respond. But judges never do that. They always call for law review articles.
Posted by: TJ | Jul 27, 2011 3:48:56 PM
TJ,
All I am claiming with respect to my second point is that doctrinal issues that interest academics may not be the same as doctrinal issues that interest a lot of non-academic amici, nor that attract quality lawyering. There are a lot of scholars who write about criminal law and procedure, but the Supreme Court's criminal law docket attracts a lot less media attention or amici attention, on average, than its non-criminal law docket.
It may well be true that "low-profile issues are neglected for a reason," but I just don't think it's true that the reason is "academics don't write about this area."
Will
Posted by: WPB | Jul 27, 2011 3:37:30 PM
Brad,
I'm not disagreeing with you that the obsession with the Supreme Court can be unhealthy. But that is not an obsession that is unique to the law professoriat, but is shared by the entire profession and the entire public. And in that sense your point is tangential to mine.
Posted by: TJ | Jul 27, 2011 3:37:29 PM
Bruce,
Fair enough point, in that I was making that implicit suggestion, but the suggestion is not essential to my argument. So there is a universe of amicus briefs that can be helpful. But (1) do judges actually bother sift through all the amicus briefs to find those? Or do they pretty much regard amicus briefs as generally useless and not bother find the needle in the haystack?
And (2) if amicus briefs are good enough, then why not just have law professors write amicus briefs? Why call for the same points to be made specifically in the format of a law review article?
Posted by: TJ | Jul 27, 2011 3:35:28 PM
Why such a narrow focus on the Supreme Court of the United States? They hear less than 200 cases per year. On a myriad of federal issues the Circuit Courts of Appeal decisions are controlling and/or highly persuasive authority. Then there is the entire universe of state law in each of fifty states. Is advancing the development of law in any court other than One First Street beneath the dignity of the professoriat?
Posted by: Brad | Jul 27, 2011 3:33:26 PM
Will,
On your first point, I'll have to think about it a little more, but my initial take is that you might have something with the example of fed courts scholarship, but my general impression (correct me if I am wrong) is that fed courts scholarship is already more doctrinal than most. You might say that we need more fed courts scholars, but I don't think the usual objection that law review articles are too theoretical and abstract really applies with nearly as much force to the existing corpus of fed courts scholars and their work. And the parties-agree problem is by definition the exception in our adversarial system.
On your second point, in one sense it is true that law professors should address low-profile issues that are nonetheless "important" in some broader sense. But low-profile issues are neglected for a reason, and judges themselves bear more culpability for their disinterest in technical procedural issues. A call for more scholarship on mundane and uninteresting issues is a very different call than a call for more scholarship on doctrinal issues (unless you are asserting that doctrine=uninteresting). And judges almost always frame the call in the latter sense.
Posted by: TJ | Jul 27, 2011 3:23:11 PM
I also disagree with TJ's implicit supposition that his (1) nearly covers the universe of amicus brief-able arguments. Lawyers are page-limited and time-limited in what they can brief and argue. They don't have time to, e.g., describe how a whole area of law developed over the course of the 20th century, and their clients might not care that if the justices interpret Section 1354(b)(1)(ii) in a particular way it could have disastrous effects in other cases. Law clerks and judges are similarly limited in what they can become experts in from the time the briefs come in to the time the opinion must be written. Law professors, on the other hand, if they are not doing a "me-too" brief, are likely to be contributing on a subject they've thought about and written about for years, long before the case even came into existence. Their expertise is likely to go beyond the particular point of dispute between the parties to encompass the place of that dispute in the larger body of law. This is something that none of the other players mentioned are likely to be able to contribute. So I think the idea that the ONLY thing amicus briefs could be supplying in the vast majority of cases is window dressing has a nearly zero chance of being true.
Posted by: Bruce Boyden | Jul 27, 2011 3:12:09 PM
TJ,
Thanks for this clarification. I think it helps me articulate at least two reasons that I disagree. 1) In high-profile cases, sometimes the parties agree on an issue that is actually quite complicated and unclear--jurisdictional issues are the place where this happened most frequently, when I clerked. Articles by scholars of federal jurisdiction could be quite helpful in those circumstances and I wish there were more of them.
2) I think cases "of the type that legal academics can be expected to address" versus cases that are not maps a very different line from "high-profile" versus "low-profile." There are plenty of cases that present general legal questions of moderate to high importance for that area of the law that nonetheless aren't high-profile. Again, technical procedural issues and jurisdictional issues are the ones I'm most familiar with, but they certainly aren't the only ones.
Posted by: WPB | Jul 27, 2011 2:52:44 PM
Orin and Will,
You are taking me from a legal realist and twisting me into a crit, which I am not. I don't think that judges always pick and choose results they like, and that legal arguments never influence courts. But those are not the cases we are talking about. We are talking about a subset of cases where (1) legal arguments not already made by the lawyers, the law clerks, and the judges themselves might influence the court if it were made, and (2) are of the type that legal academics can be expected to address (i.e. not whether Prisoner X should get habeas). I think those are rare, though not non-existent.
In other words, I think that for high-profile cases that reach the Supreme Court, legal arguments are either usually already adequately covered, or are dressing. For the low-profile cases, law professors are not alone in neglecting them.
Posted by: TJ | Jul 27, 2011 2:29:21 PM
I though TJ's view was a slightly modified version of that:
Judges always pick results they like and are looking to dress the results up in legal language to sound persuasive. Amicus briefs don't provide very good "cover," because they are obviously not authoritative. In contrast, articles provide better "cover." So judges who complain about lacking useful scholarship are lying. They don't want useful scholarship, they want scholarship that provides "cover."
TJ, are we on the right track here?
Posted by: WPB | Jul 27, 2011 11:15:18 AM
It's taken me a while, but I think I am beginning to understand where TJ is coming from.
If I now understand him correctly, his view is that judges are always just picking results they like, and are always just dressing up results in legal language to sound persuasive. Because there is no actual traditional legal thinking involved at all in legal decisiomaking, all good lawyers do is dress up results better than others; all amicus briefs do is provide some prestigious names to lend themselves to a result; what judges do is as far form umpiring as one can possibly get; and it would be silly for serious academics to try to influence courts, as legal arguments do not actually influence courts.
If I understand TJ's views correctly, I happen to think it is a deeply flawed understanding of how judges reach decisions. It takes something that *sometimes* happens and treats it as if it *always* happens, which is just as mistaken as assuming that it *never* happens. But I think now I am beginning to understand where he is coming from.
Posted by: Orin Kerr | Jul 27, 2011 10:38:17 AM
For what it's worth:
1, I do think some scholarship serves the bench and bar, and it would be helpful to know whether critics A, think this is false, and that none does, or B, merely think that amount is insufficient. (I assume that the answer is "B." If so, the debate is underspecified until we have examples of what scholarship they do think is useful.)
2, I do think the form of an articles has value, other than legitimization value, that amicus briefs do not. Articles can be written in advance and sit in a database where they are easy to find and cite. As others have discussed, outside of the Supreme Court, it's hard for non-parties to learn that their assistance in a case would be useful in time to file an amicus brief. So it is probably a better use of their time for academics to write useful articles, rather than useful amicus briefs.
3, In any case, I don't see how the existence of amicus briefs renders judges' complaints "false." Professors write articles; judges complain that the articles are useless. One can point out that professors also write amicus briefs; might we not infer that the judges find the amicus briefs useless too? Can't we accuse the judges of a "false" complaint only after looking at the amicus briefs and showing that they actually *do* accomplish the kind of useful contribution that articles don't? Only that comparison would allow us to accuse the judges of wanting articles for their legitimization value rather than for their content.
4, Even if it were true that judges preferred articles only because of their perceived neutrality, I'm not sure that would be an improper preference. Articles are more likely to apply a principle broadly across a range of cases, and (on the margin) an obviously shoddy article is more likely to embarrass its academic author. Also, the authors of articles are more accountable because the current norms of the legal academy make it improper to sign an article you haven't read or written, whereas no such norm exists for amicus briefs.
Posted by: WPB | Jul 27, 2011 10:14:53 AM
^^
Apologies for typos in the above, I'm posting from a phone.
Posted by: Brad | Jul 27, 2011 9:25:03 AM
It sounds to me like many law professors simply aren't interested in doing doctrinal work - in the form of law review articles or amicus briefs - regardless of how useful it might be to the bench and bar. There is a tiny exception for work that may be relevant to the few cases the Supreme Court of the United States which is sufficiently prestigious to overcome the distaste for doctrinal analysis.
Given the status quo incentives for law professors those preferences aren't going to hurt anyone's career. But I fail to understand how and the one hand you can exercise your preference so as to not serve the bench and bar, and then turn around and take extreme umbrage at a rather mild comment pointing that fact out.
Posted by: Brad | Jul 27, 2011 9:22:55 AM
The primary difference between amicus briefs (from scholars) and law review articles ought to be length and specificity. While a doctrinal article may deal with a broad area of law or address it from many points of view, an amicus brief can be more focused on the facts of the case and applying the doctrine to a specific circumstance.
Posted by: Andrew MacKie-Mason | Jul 26, 2011 7:42:31 PM
wow, the person who is displaying a "profound misunderstanding" is you. Amicus curiae literally means "friend of the court." As traditionally conceived, an amicus brief is supposed to do precisely the kind of "honest judging" that you conceptualize.
Of course, I find that view of the law to be hopelessly naive, whether it describes judges, or amici, or scholars in their articles. But to the extent you believe the formalist myth, it fits much better with the traditional conception of what amicus curiae briefs should look like than what law review articles should look like.
Posted by: TJ | Jul 26, 2011 7:28:43 PM
This post betrays a profound misunderstanding of the nature of doctrinal work and of judging.
A good doctrinal article is not merely an amicus brief in disguise. Honest judging does not involve picking one result and then manipulating doctrine to reach that result. It's sad that the OP has such little regard for those on the bench -- just another indication of the growing disjunction between the academy and legal practice, I suppose.
Posted by: wow | Jul 26, 2011 6:55:42 PM
Will, the culpability part is on a point completely unrelated to my post (i.e. I am not saying it is the Supreme Court's fault for not using legal scholarship). Rather, it seems that your point is that law professors are neglecting many issues in the lower courts, and Brad is pushing that argument even more in arguing that those neglected issues are "important to the development of the law." To the extent that issues in lower courts are neglected but important to the development of the law, it is the Supreme Court's fault for neglecting them.
[But, to emphasize again, this really has nothing to do with the point of my post. My position on judges' complaints about the lack of doctrinal scholarship (that it is a false complaint, because anything that can be done through doctrinal scholarship can be done with amicus briefs, except supply the illegitimate "name and vote" value) has not changed.]
Posted by: TJ | Jul 26, 2011 6:41:19 PM
I'm afraid I really don't understand TJ's position at this point. What exactly is the Supreme Court's fault here?
Also, for what it's worth: On more than one occasion during my clerkship, we found a law review article that addressed (and arguably even resolved) a complicated, doctrinal issue presented by our case. The parties never pointed us toward those articles, and they were hard to find, in part because it was hard to understand what to look for. I always wondered about the ones we missed.
Posted by: WPB | Jul 26, 2011 5:31:39 PM
The neglected cases in lower courts are often going to involve areas of the law that *are* developed, but the development fails to get noticed for some reason. And those that aren't yet developed will tend to go up on appeal.
Besides which, there's a problem of information. Lawyers aren't going to say "I'm obviously failing to properly defend my client's interests, so let me ask a law professor for help." And there's no easy mechanism for finding lower court cases with interesting issues.
(I say this from experience, by the way: one of my jobs as a research assistant involved finding state court cases raising a certain issue in order to pick some that might benefit from requests for certiorari. It was difficult to track them down and figure out their, even though I was working under some pretty favorable conditions: I was dealing with higher state appellate courts, not local trial courts; I had a few big cases I could cite check on to look for briefs; and they were all cases in which the issue had been preserved and argued. Finding interesting neglected cases at the trial level would be more difficult on all those counts.)
Posted by: Andrew MacKie-Mason | Jul 26, 2011 4:40:31 PM
Brad, my example was a bit off, but the point is basically the same. The cases you want law professors to identify and brief are those where higher courts, the big firms, and everyone else has neglected an important issue. The first response is that neglected cases are neglected by everyone else for a reason, and law professors are not that dramatically different in what they find interesting from appellate judges and big firm lawyers (notwithstanding CJ Robert's apparent belief to the contrary). The second is that the complaint about neglecting cases in lower courts that are "important" to the development of law in some way is a different complaint from the usual one about the lack of law professor doctrinal scholarship, particularly because the Supreme Court bears far more culpability for this result than academics.
Posted by: TJ | Jul 26, 2011 4:33:13 PM
TJ,
I think you are slightly misunderstanding my position. I'm not suggesting that law professors should take on pro bono work for the sake of random client X, but rather that they should find cases where important issues to the development of the law in the area of the professor's expertise are present but aren't being fully briefed by the parties.
The point wouldn't be to so much to help individual litigants, but rather to help further the development of the law.
Posted by: Brad | Jul 26, 2011 4:23:20 PM
Brad,
Perhaps TJ is being overly solicitous of the bar. But that is not the comment you responded to or the one I was defending.
Posted by: Andrew MacKie-Mason | Jul 26, 2011 3:48:26 PM
Brad,
It seems you are making a point very similar to WPB above. That is, one area where amicus briefs (and law professor attention generally) could be helpful are neglected cases in lower courts. Yes, of course. If law professors started writing about whether Prisoner X is entitled to habeas corpus they can find lots of overlooked arguments that would be helpful to courts, and there are very many such cases where lower court judges could use the help. But (1) law professors have never been interested in writing about that kind of subject, and never will be, (2) that is not the usual complaint about the lack of doctrinal scholarship, and (3) the neglect is not unique to law professors, in that the same could be said about anyone else in the legal profession (a big firm taking Prisoner X's case pro bono would help greatly, too). In sum, your point is true enough, but is tangential to the point I was making in this post.
Posted by: TJ | Jul 26, 2011 3:48:26 PM
Andrew:
Even if we grant that there is a learning curve for professors, that still doesn't justify TJ's remark - "And the fact that the parties' lawyers already made the most important arguments is simply a reflection of the fact that the tools of modern legal research and the quality of the bar is such that law professors can add very little additional value."
In my own work, I have seen plenty of cases at the trial and appellate levels (though not at the highest appellate court level as I have never practiced there) where important issues - of interest beyond the immediate case - were never properly briefed. Oftentimes in such cases the issued decision will be non-precedential or won't discuss the important embedded issue.
If every tenured law professor took writing amicus briefs in such cases as little as two or three times a year, and we discount the 'success' rate by 50% for the learning curve, the resultant output would be very useful indeed to the bench and bar.
Posted by: Brad | Jul 26, 2011 12:52:04 PM
Brad,
"Intelligence" is hardly the deciding factor. People learn from doing, and that applies to scholarship and writing too. Perhaps by the end of a career we can expect a professor to write consistently brilliantly, but that would mean that s/he's let him/herself intellectually stagnate.
The LSAT may show potential for scholarship. Law school may start to train people to research and write. But success in either in no way demonstrates mastery of the skills of professors. The only way to master those skills is to practice them, which means producing some not-so-good articles.
Posted by: Andrew MacKie-Mason | Jul 26, 2011 11:24:12 AM
TJ:
I mean no offense with this, but don't law professors write "very few briefs and articles", at least as compared to the number of pages of briefs written in a year by an active litigator?
Posted by: Brad | Jul 26, 2011 10:03:44 AM
Speaking to law students in a summer program a couple of years ago, Justice Ginsburg described how she handles amicus briefs. She gives them to her clerks and tells them to bring her three piles -- a very small pile of "must reads," a slightly larger pile of "read if you have time," and a huge pile of "don't bother." She elaborated that there are way too many of them and that they are quite duplicative. Her recommendation was that the groups interested in filing for a similar point of view get together and join in one brief.
On another aspect of the C.J.s repudiation of law review articles is that he doesn't want to know what they say because it might conflict with what he wants to decide. In other words, aggressive anti-intellectualism may drive the disdain of law review articles.
Posted by: Mike Zimmer | Jul 26, 2011 2:02:32 AM
"Most amici are competent enough to ask whether the brief they're about to write will duplicate the parties' briefs or add something new. They just don't."
Yeah, to expand a bit on what I said above, I don't think most "me-too" amicus briefs are actually a mistake, in the sense of *unintentionally* not adding any useful substance to the briefing. Rather, they merely voice support for one side of the case, which can be important for the non-parties themselves, and might influence to some degree the opinion of some judges. When law professors do this, they basically just become another trade association.
Posted by: Bruce Boyden | Jul 26, 2011 12:07:57 AM
Brad, even people who have above-average ability cannot always outperform their peers. Usain Bolt has, on average, more ability than any other sprinter, but he doesn't win every race. The only way to be consistently brilliant in every brief and article is to write very few briefs and articles.
Posted by: TJ | Jul 25, 2011 11:46:21 PM
"There are always amicus briefs that make an interesting and overlooked point. But one cannot ask law professors write consistently brilliant and creative amicus briefs any more than one can ask for consistently brilliant and creative doctrinal law review articles. "
Err, why not? The median tenured law professor is certainly more intellent than the median lawyer (the modest upside to the professions' exclusion of graduates from all but a handful of schools, which in turn heavily rely on LSATs as a proxy). On top of native ability, law professors can be much more selective in their subjects and positions than professional litigators. To say nothing of the relative time constraints of either.
So I see no reason why brilliance shouldn't be the expectation rather than the exception.
Posted by: Brad | Jul 25, 2011 11:27:01 PM
But one cannot ask law professors write consistently brilliant and creative amicus briefs any more than one can ask for consistently brilliant and creative doctrinal law review articles.
Brilliant is hard, but creative is not. Most amici are competent enough to ask whether the brief they're about to write will duplicate the parties' briefs or add something new. They just don't.
Posted by: James Grimmelmann | Jul 25, 2011 10:48:39 PM
I would agree that amicus briefs bring more value to neglected issues that often end at the lower courts. But the implication of that point for the main point of the post (contrasting judicial attitudes to amicus briefs with scholarship) is that judges should be calling for more scholarship addressing issues confronting lower courts, not more scholarship addressing doctrine. The two are different; and judges almost always frame the issue in terms of calling for more doctrinal scholarship and not more scholarship on neglected issues. To illustrate the difference, Chief Justice Roberts would be a very bad spokesman for the call for more scholarship on issues not confronting the Supreme Court.
And if the problem is that academics--along with everyone else--are not addressing neglected issues that confront lower courts, I also don't think this is anything new. So the meme about the "growing" divide between academia and the judiciary would need some qualification.
Posted by: TJ | Jul 25, 2011 10:24:59 PM
WPB,
I think that's right. On the whole, law professor amicus briefs are not valued much at the Supreme Court level and *are* generally valued in the lower courts. That's one of the reasons I think the generalization doesn't quite work here: you would have one generalization for the Supreme Court, and another for lower courts.
Posted by: Orin Kerr | Jul 25, 2011 10:15:17 PM
(Apologies for the awful grammar in the second sentence.)
Posted by: WPB | Jul 25, 2011 7:16:16 PM
I think we can make at least one helpful distinction between different types of amicus briefs without getting so specific as to name names. Aren't academic amicus briefs-- like amicus briefs generally-- add much more marginal value at the court-of-appeals or district-court level?
Outside of the Supreme Court, there are fewer amici (if any), the quality of the lawyering is more likely to fall below the importance of the issue, and the brief is more likely to address an issue on which the court actually believes that it needs informed guidance.
Obviously, there are exceptions to any generalization, but does anybody in this thread disagree with that generalization?
Posted by: WPB | Jul 25, 2011 7:14:45 PM
TJ,
Yes, I agree that we have to the same for scholarship.
Posted by: Orin Kerr | Jul 25, 2011 5:13:39 PM
My advice is to do some serious homework about the individual judge to gain insight into what may be viewed as helpful or harmful. Start with the party you support, but don't stop there. I've declined to file in a few cases after doing this. With that homework, you can refine your approach if you file. And remember that objective does not mean neutral. I'm about to put my phone in Airplane Mode to leave the country, but am happy to answer Q's off-list if it would be helpful to anyone. [email protected].
Posted by: Jen Kreder | Jul 25, 2011 4:59:48 PM
Orin,
Well, yes, we can always move from the general to the particular. But then we'll have to do the same for scholarship. Whether law review articles are useless to judges depends on the case the judge is deciding, the author, the judge, and the arguments made in the article, etc.
Posted by: TJ | Jul 25, 2011 4:55:26 PM
TJ,
Doesn't it depend on the case, the judge, and the brief? And for that matter, the doctrinal argument? You seem to be making a one-size-fits-all argument in which judges want a certain thing from a certain kind of brief. My view is that it all depends: many judges appreciate certain knds iof amicus briefs, others don't appreciate other kinds, some look just for names, other ignore them, some read them all carefully, some listen to certain professors, others to all, others to none, etc.
Posted by: Orin Kerr | Jul 25, 2011 4:49:28 PM
Brian,
If I am reading you correctly, your point is that amicus briefs are valuable to the parties because they provide a name and a vote, regardless of the quality of the underlying reasoning. That supports my point, and refutes Orin's. Orin's theory (at least if I'm reading him right) is that judges want doctrinal law review articles (and amicus briefs) for their intrinsic legal reasoning. My theory is that judges want names and votes, and they don't need help with intrinsic legal reasoning.
Sure parties will find such amicus briefs valuable to their side (though I haven't heard of ghostwriting, and that's illegal...). But if a name and a vote is what judges are looking for, then I don't see any reason for academics to supply it--either through amicus briefs or doctrinal scholarship.
Posted by: TJ | Jul 25, 2011 4:36:20 PM
Consider the amici brief of prominent constitutional scholars in MacDonald v. Chicago, pushing for recognition of the "privileges or immunities" clause of the 14th Amendment for Second Amendment incorporation purposes rather than its "due process" clause, to undo the errors of the Slaughterhouse cases. Only Justice Thomas seemed to buy into this. Legal academics - and many, many lawyers - had long challenged the Slaughterhouse decisions and based upon my readings of legal blogs prior to the 5-4 decision in MacDonald, there were strong sentiments - together with much logic - for recognition of the "privileges or immunities" clause and undoing the Slaughterhouse cases. But 8 Justices were apparently not impressed.
Posted by: Shag from Brookline | Jul 25, 2011 4:36:15 PM
If academic briefs are not worth anything, then it is odd that litigants invest so much time in seeking them out (and often, frankly, in ghost-writing them). Maybe no lawyer really knows what happens in chambers. But, at a minimum, I would guess litigants are willing to write a brief that merely duplicates their own arguments in order to add the weight of the amici's (amicarum?) reputation to their own claims.
And, to the extent that the amici professors signature is representative of their long study and careful judgment, it may well be a meaningful signal. Yet courts might never cite such an amicus (since it is duplicative of the principal brief), or even be directly aware of the impact it had on their deliberations.
Basically, I agree with Orin that I'm unconvinced that you've established the basic claim that amicus briefs are not valuable.
Posted by: BDG | Jul 25, 2011 4:12:52 PM
Orin,
I don't want to name names, but I think the impression is based on Bruce's observation. It is not that judges think law professor amici are particularly useless, but that they regard most amicus briefs as useless in general: they are redundant of the parties, and they are ideologically motivated.
But that just fits into my general point. If law professors started writing doctrinal articles, it is not as if those articles would be non-ideologically-motivated--there is no mystical time when law professors were non-ideological just as there is no mystical time when judges were. And the fact that the parties' lawyers already made the most important arguments is simply a reflection of the fact that the tools of modern legal research and the quality of the bar is such that law professors can add very little additional value.
Of course there are exceptions. There are always amicus briefs that make an interesting and overlooked point. But one cannot ask law professors write consistently brilliant and creative amicus briefs any more than one can ask for consistently brilliant and creative doctrinal law review articles. One can only ask for law professors to write amicus briefs or law review articles in areas where they have expertise and engage with doctrine in a serious way, which almost all law professor amicus briefs do. Perhaps your and my impressions are just different on whether judges appreciate law professor amicus briefs in general (as opposed to the rare exception). But, again, if your impression is right, then judges should just call for more law professor amicus briefs.
Posted by: TJ | Jul 25, 2011 3:51:27 PM
It might depend on the brief. A lot of professor briefs seem to me to make the mistake of amicus briefs generally, which is merely to duplicate the arguments of the parties. I could see how it's not very helpful for judges to know that X number of professors agree with Party A. But TJ's point seems to be a different one.
Posted by: Bruce Boyden | Jul 25, 2011 2:52:40 PM
In my experience, most judges very much value amicus briefs filed by law professors that engage in a serious and substantive way with the legal materials in the case -- especially when they have some real expertise that the parties lack. Can you give us a sense of how you came to what seems to be the opposite impression?
Posted by: Orin Kerr | Jul 25, 2011 2:33:10 PM
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