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Monday, November 14, 2011

Fallon, Amicus Briefs, and the Healthcare Litigation

Now that the Supreme Court has granted cert in the healthcare litigation, it seems like a good time to revisit a recent conversation held here on Prawfsblawg about Richard Fallon's article on "Scholars' Briefs and the Vocation of a Law Professor."  Here's my post discussing that article and the issues it raises, as well as a Prawfs post by Dan Markel and commentary at VC by Orin Kerr.  Recall that Fallon argues that too many law professors sign scholars' amicus briefs without carefully scrutinizing them, and that "norms of scholarly integrity should bar law professors from signing scholars’ briefs unless they have personal knowledge of all of the principal authorities on which a brief relies and, more substantively, that they should not sign a brief unless, in their roles as scholars and teachers, they would applaud a court that simply adopted the brief’s reasoning as its own."

Most law professors, I would guess, are inclined to agree with Fallon's recommendations in principle.  In practice, however, even when the spirit is willing, the flesh (or the ego, or more charitably the urge to do good and have an impact on the law) is weak.  A legal scholar might be willing to abide by Fallon's arguments in a run-of-the-mill case.  But one might reasonably conclude that the healthcare litigation could draw an above-average amount of energy, attention, and concern.  (Note the dry Canadian understatement.)  It will be much harder for law professors, being all too human, to resist the urge to join scholars' briefs--and there will be plenty--arguing on one side of the issue or the other.  I still think they should resist.  I am betting that before long, there will be plenty of briefs floating around the Internet, and plenty of signatories who are inexpert in healthcare law and/or economics, tax law, the Commerce and Necessary and Proper Clauses, the statute itself, or all of the above, and who know little about the particulars of cases like Raich, Comstock, or Wickard v. Filburn besides what they picked up in law school or a one-page excerpt in a casebook.  They might still conclude that given the importance of the case, it is important for them to add their name to the "count" of professors on one side or another.  But it isn't, and they shouldn't--although they probably will.  I hope we will at least keep track of who does, and whether they have any basis for signing a brief qua "scholar."

In my earlier post, I also made the following suggestion: "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."  That seems true of this case, as well.  I think the issues will be well mooted by the many briefs on both sides, so that there will be less value for scholars' briefs of any stripe in this litigation than there might be in, say, a difficult tax case.  Still, I could see some actual added value in briefs written by smallish groups of scholars who, instead of arguing in support of either the petitioners or the respondents, delve into particular questions raised by the litigation--the history of insurance, the economics of healthcare, whether the action/inaction distinction makes sense, whether there are any judicially manageable limitations on the Commerce Clause and whether it matters, etc.--as a purely scholarly matter and with no interest in who wins. 

I won't hold my breath, but if legal scholars (and others, such as historians) actually want to contribute to the Court's work, surely this would be a better way to do it than adding a "me too" signature to a brief written by a lawyer at a law firm, on issues they don't fully understand, and asserting that they are signing as "scholars." 


Posted by Paul Horwitz on November 14, 2011 at 05:07 PM in Paul Horwitz | Permalink


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I think "voting" is the right comparison. And it, along with the possible motivations described by Orin and others, leads me to think, again, that the fundamental role played by signing a scholar's brief is essentially civic, not scholarly. Which would be fine, if those briefs were not called "scholars' briefs" and did not, in various ways, represent themselves as offering the opinion of scholars qua scholars. Again, though, I think one could imagine a set of briefs on neither side of the issue, written by a small group of scholars (and not a lawyer at some firm) and signed by an equally small number, that really does constitute a "scholars' brief."

Posted by: Paul Horwitz | Nov 15, 2011 7:53:36 AM

Orin, I guess that is right. The dilution point brought to my mind the classic paradox of voting (i.e. why vote when your one vote has almost zero chance of influencing the outcome?) And the standard model is to come up with lots of non-instrumental benefits to voting, which your post just did.

Posted by: TJ | Nov 15, 2011 2:42:20 AM


I suspect that the professors who sign such briefs -- I am not one of them -- see a lot of benefits beyond the actual influence on the law. For example:

1) They get to join a group of other scholars who they may want to associate with;
2) They feel flattered that they were asked, and by joining increase the chances of being asked again;
3) They get a feeling of participation;
4) TIf they really care about the case, then they get the good feeling that they at least did *something*, and
5) They get to represent to others that they played a role in the case (some law professors say on their bio that they were involved in U.S. Supreme Court litigation because they signed an amicus brief).

Add to these five benefits the unknown of whether their participation might make a difference somehow -- very unlikely, of course, but you never know -- I think it is understandable that some professors would take the 1 minute of time to join.

Posted by: Orin Kerr | Nov 14, 2011 10:43:44 PM

Orin, true enough (though I would estimate about 1 minute, given that one does have to make sure that the brief comes to the right result and that it doesn't make any truly embarrassing statements). And my point is that the marginal "impact" of adding one more name--unless your name is Tribe or the like--is smaller than even that.

Posted by: TJ | Nov 14, 2011 9:15:27 PM


Whatever the motivation, the "urge to . . . have an impact on the law" is not one of them, at least if the participants are rational, analytical, people.


Note that the time it takes to sign an amicus brief is about 15 seconds.

Posted by: Orin Kerr | Nov 14, 2011 7:53:34 PM

I wonder how much of the skepticism among Justices about the work of legal academics derives from the their amicus participation.

Posted by: Orin Kerr | Nov 14, 2011 7:51:51 PM

In a lot of ways I concur in your prediction; but I don't get it. The chance that adding one additional name to the "count" will affect the Justices' decision in this case is pretty close to zero, not least because there will be so many amici and names that the marginal effect of adding one more will be diluted to nothingness. Whatever the motivation, the "urge to . . . have an impact on the law" is not one of them, at least if the participants are rational, analytical, people.

Posted by: TJ | Nov 14, 2011 5:45:06 PM

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