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Monday, October 31, 2011

Is Fallon's Article a No-Brainer?

I'm grateful to Dan for posting a link to Richard Fallon's paper on scholars and amicus briefs.  Fallon argues that legal scholars are or ought to be constrained in various ways to meet various scholarly requirements before signing on to an amicus brief.  The title to this post is not meant as an insult: Fallon's paper is typically clear and detailed in setting out the various issues and proposed resolutions.  The reason I ask this question is that it seems utterly obvious to me: of course legal scholars (and scholars from other fields who sometimes submit amicus briefs, like historians) cannot just sign briefs willy-nilly, or on the sheer basis that the signer agrees with the desired outcome or the general drift of the argument.  As long as a brief is designated a scholars' brief, each individual who signs it must be convinced of the detailed arguments made in that brief.  Period.  Fallon argues that many professors who sign amicus briefs don't live up to that obligation, and I believe he is right.  My operating assumption is that when this happens, it's because the signer has an ideological commitment to some outcome and is willing to accept some arguments he or she may not agree with, or to sign without looking closely and deciding whether he or she agrees on the particulars or not.  I consider this an abdication of scholarly responsibility, and although Fallon nicely lays out some of the underlying issues and complexities, ultimately I see this as a no-brainer.  So I am wondering whether anyone really disagrees with Fallon's general view that signers of amicus briefs must live up to their scholarly responsibilities for these writings just as they would for other scholarly writings, and if so why they disagree.  

I do want to point to a few important passages in Fallon's paper.  Here's one: Fallon argues that the "norms of scholarly integrity applicable to legal scholarship" include an obligation to candidly look for and acknowledge difficulties with one's arguments and "to put the counterarguments as clearly and as fairly as she can."  That seems quite right to me.  Law is not mathematics.  Some arguments depend on normative positions, such that if one questions that normative position the rest of the argument weakens or fails; others are open to disagreement even from within a particular normative position.  It seems to me that scholars should acknowledge both kinds of arguments, and in the former case must make clear the normative premises on which they rely and acknowledge that they are hardly the only possible premises to rely on.  

For both reasons, I am led to conclude that it should be rare indeed that a scholar, let alone a group of scholars, ought to sign on to one side of a case or the other, especially in the Supreme Court, which generally takes cases that are sufficiently complex, or sufficiently based on contestable normative premises, that a decent scholar wouldn't simply swallow one position whole without acknowledging the possibility of being mistaken.  

I would much rather see scholars submitting amicus briefs in support of neither side, briefs that explore the genuine complexities or conflicting normative positions of both sides and look at the possible consequences of different conclusions.  Even where one thinks one side definitely ought to win and the stakes are high, I still think the scholar's own particular contribution at the Supreme Court level, given the likelihood that the advocates themselves will make all the basic arguments, should be to explore the difficulties that are often elided or neglected by both sides.  I assume they will have difficulty getting the consent of the parties, and if that leads to fewer amicus briefs, so be it.  

Second, Fallon discusses problems with "expertise."  One fairly regularly sees amicus briefs signed by individuals with no particular expertise on the issue at hand, a famous if slightly different example being the petition filed by many law professors in the midst of the Clinton impeachment debate.  I do not think scholars qua scholars should sign briefs or petitions on issues in which they lack expertise.  Where they do, they should make clear in their statement of interests that some or many of the signatories lack any particular wherewithal on the issues raised in the brief; where petitions are involved, they should sign as citizens rather than bringing in their institutional affiliations, which obviously are meant not just to give their business addresses but to appeal to their purported authority.  If a brief or petition signed by several hundred people that begins, "Most of us don't really know what we're talking about except insofar as we are generally educated individuals," lacks persuasive authority beyond the merits of the arguments made, again, so be it.  There's no point calling something a "scholars' brief" if most of the scholars involved are not, effectively, acting as "scholars" on that issue.  It is technically accurate but verges on dishonesty.

Third, Fallon writes early on: "For the professors who are asked merely to sign a scholars' brief, participation may be even harder to resist.  Dangled before them, with little or no work required, is the possibility of having an impact on the development of the law.  As long as the brief supports the right side, it is hard for a professor who wants to influence the law's trajectory . . . to say no."  It seems to me that one can make precisely the opposite argument on the same basis.  If little or no work is required to say "no" to signing on to a brief, then it should be utterly easy to say no, and all the more troubling that people don't.

To end where I left off, I find all of this quite obvious, although again I think Fallon does an excellent job of laying out the issues.  I assume the scholars who sign these briefs do so in good faith, but it is equally evident to me that they can hardly agree in every case with all the details--including, even, many of the basic arguments--in a brief, and that in some cases they lack any decent claim to expertise on the issues raised in a case or in a brief.  So I am quite sincere in asking: aren't these strictures obvious, and if so why are they not followed by absolutely everyone?

I must add a personal note that may affect my credibility on this point.  Fallon writes up front: "At least within the loosely defined domain of public law, any law professor who does not get asked to sign 'scholars' briefs' is not much of a scholar."  Except insofar as I belong to listservs, receive mass email requests, and so on, I don't get asked to sign many scholars' briefs.  Maybe that's because I avoid mail-groups and associations devoted to the like-minded.  Or maybe it's because my scholarship so regularly takes complex positions that do not fit especially fit well into either the appellant's or the respondent's mode of thinking that I am just too damn much of a scholar to be asked to sign.  That's my favorite candidate for an explanation.  But Occam's razor suggests that Fallon's "not much of a scholar" theory might be the most accurate explanation--unless he is wrong and, outside of certain rarefied circles, fewer people are asked to sign amicus briefs than he thinks.   






Posted by Paul Horwitz on October 31, 2011 at 08:58 AM in Paul Horwitz | Permalink


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I like Fallon's paper and this post, but would add a couple of qualifications. I have no problem with signing a SCOTUS amicus brief if, for example, the brief takes care to bracket the disputed factual issues or to explicitly assume that one side of a disputed fact is true. (e.g., "We take no position on whether . . . " and "Assuming for purposes of this brief that . . . ")

In the particular field of legal ethics, the duties Fallon mentions seem all the more important to me. I've seen a number of letters and briefs suggesting that someone acted unethically and when I spoke to a signer I learned that he/she hadn't even read the basic underlying documents.

Posted by: John Steele | Oct 31, 2011 11:07:33 AM

Paul, I agree with most of your post, and Fallon's paper, but find some difficulty in your suggestion that scholars can rarely sign on to just one side of a SCOTUS dispute. Descriptively, I think many questions that reach the Court are the result of fractures between careless or out-dated drafting/judging and clear contemporary norms. And normatively, it isn't clear to me that scholarly nuance is *always* required in every public communication. The Supreme Court is just not going to read amici that closely. They aren't going to follow along the third and fourth other hands. I think there is a role for arguments that make the author's view of the best available case cleanly.

But having said that, I agree that scholarly integrity requires the author to engage with alternatives in some other public way, and to do so contemporaneously with or prior to filing the amicus. That way, the court or its clerks can see the nuance if they want it.

Posted by: BDG | Oct 31, 2011 10:22:24 AM

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