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Tuesday, November 15, 2011

More on Amicus Briefs, the Healthcare Litigation, and the Fallon Article

The New York Times today has an article on the subject of my post yesterday: Richard Fallon's article on scholars' briefs, with special reference to the healthcare litigation.  One noteworthy quote comes from Mike Dorf, a friend and former teacher who is mentioned in the Fallon article.  Here's the quote, with some context:

In an e-mail, Professor Dorf said that he, too, had long been suspicious that “law professor briefs were attempting to leverage scholarly reputations for political/ideological ends.”

“I prefer not to be asked to sign such briefs, but because I do sign some, I worry that not signing may be taken as disagreement,” he wrote. “Finding it harder than Dick does to say no, I cannot afford to be as scrupulous as he. I admire him on both counts, but I guess I’m just weak.”

Professor Dorf, who did sign the health care brief, set out his standards. He will join briefs for groups of law professors if he trusts their organizer or author, cares about the issue and agrees with “the overall thrust of the argument.”

I appreciate Mike's candor, and his effort to set out some standards, although I still think those standards are not enough.  

I should add that there are some interesting comments to yesterday's post that set forth some of the possible reasons why law professors sign scholars' briefs, even when they arguably (and sometimes inarguably) shouldn't.  One thing that strikes me in looking at them is that a number of those reasons--they send a message, they indicate someone's allegiance to a particular cause, they give personal satisfaction, and even if they have no real marginal effect on the Court, they are also relatively cheap and easy to sign--greatly resemble voting.  It seems to me, therefore, that the best way to characterize most signatures on scholars' briefs is that they represent a kind of civic action.  That's fine; but if that's the case, it seems to me that the pomp and symbolism that surrounds the idea of a "scholars' brief" is misplaced.  If it were called a "citizens' brief," or a "scholar's brief signed by various fairly well-educated interested citizens," it would be more descriptively accurate.  Of course, it would also be more reason for the Justices to ignore the signatures.  Still, I'm sure that most of the people who sign these briefs would rather err on the side of caution, and have no interest in misleading the Justices about the basis for their signatures.

I will add again, despite my worries that it represents a mixture of idealism, impracticality, and ego, that I think there is something to be said for the idea of genuine scholars' briefs: written by the professors themselves, signed by only a few qualified individuals, focusing on particular difficult questions of fact or law that would actually help the Court, and devoted to victory by neither side.  The Times article notes that the Justices have expressed skepticism about amicus briefs in general; perhaps if scholars started preparing genuinely disinterested briefs on narrow issues that were actually intended to help, the Justices would feel differently.  I would be happy to help coordinate such an effort, if anyone is actually interested. 

Posted by Paul Horwitz on November 15, 2011 at 08:39 AM in Paul Horwitz | Permalink


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If "Scholars" file an amicus brief which is not read by the Justices, is this comparable to a tree falling in the forest and whether it makes noise if no one is there to listen? Might such an amicus brief be compared to a letter to editor?

Posted by: Shag from Brookline | Nov 16, 2011 8:35:54 AM

I'm actually a little cautious about generalizing the voting analogy too much. In other cases and on other issues, I can see an argument that scholars briefs are useful (though, as I indicated in a long past thread, my impression is that judges generally regard them as useless). At least for the upcoming healthcare litigation, I would join Paul's prediction that we will see many signatures on scholars' briefs that amount to voting.

Posted by: TJ | Nov 15, 2011 4:55:47 PM

I was actually going to say basically the same thing. And it also brings out another potential harm (or at least Bad Thing) of the practice unrelated to scholarly integrity: by signing onto these briefs on the pretense of expertise that they lack, professors are basically taking advantage of an unjustified privilege to have a say in civic matters, which is an assault on democratic principles.

Posted by: Andrew MacKie-Mason | Nov 15, 2011 3:14:31 PM

Marc, you will be shocked (shocked!) to hear that I basically agree with you--if not about the remedy, than about what the scholars' briefs ultimately amount to. True, they involve an unusually well-educated group of citizens, but since many of the signatories are less than fully expert on the issues discussed in the briefs, yes, they often amount to an indication of the general opinion of an elite group of citizens who happen to be scholars, rather than a "scholars' brief" in the obviously intended meaning of the phrase.

Posted by: Paul Horwitz | Nov 15, 2011 9:24:11 AM

Paul (and TJ from the earlier thread), if it's a kind of voting that is going on, then why not open up the possibility of signing to the general public? If it is a "citizens' brief," then citizens of all kinds ought to be able to join it. One might wonder why the courts should inquire after what a particular group of citizens happens to think about a particular legal issue, but that can be worried about later. If this simply represents a civic exercise (I am exercising my informed judgment as a citizen to tell my government how I would vote on the legal issue), then it seems to me that it might make sense to let all concerned express themselves. That is, no special group of citizens ought to have the privilege of registering their vote.

Posted by: Marc DeGirolami | Nov 15, 2011 9:04:48 AM

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