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Sunday, January 22, 2012

Frost on Fallon on Scholars' Briefs

A while back there was some discussion in these parts about scholars' amicus briefs, their relative value or lack thereof, and what scholarly or other standards ought to apply to participating in one.  The discussion stemmed from a recent draft piece by Richard Fallon.  A link to that piece, and some summary and discussion, can be found here and here.

A few weeks ago, Professor Amanda Frost posted a draft reply, titled "In Defense of Scholars' Briefs: A Response to Richard Fallon."  It deserves more attention than it has received so far.  

Frost's admirably short and readable response first sets out her differences with Fallon: 

* * * 

I agree that a law professor should not sign onto a scholars‘ brief unless she has some special knowledge or expertise in the subject, and has then carefully read the brief and is satisfied that it contains reasonable arguments and advocates a result with which the professor sincerely agrees.  Beyond this we part ways, for I do not believe that scholars‘ briefs must satisfy standards similar to those that govern scholarly publications. . . . Fallon argues that the norm of trustworthiness requires that a professor make explicit when any argument in a brief is at odds with that professor‘s purest beliefs about the law.  So, for example, a law professor who believes that the death penalty is unconstitutional should not sign onto a brief that cites and relies upon precedent upholding capital punishment, even to argue that a particular defendant should nonetheless escape that penalty, unless the professor makes his views about the constitutional status of the death penalty clear. . . . I disagree that such candor is called for in a scholars‘ brief. [P]  Furthermore, I think it is appropriate for a law professor to sign onto a scholars‘ brief even if she has not read, or read recently, every authority cited within it; even if she thinks some of the arguments made in the brief are not the best arguments from a scholarly perspective; and even if some significant counter-arguments are omitted.

* * * 

Frost's defense of her differences with Fallon is based on two points.  First, even where a scholar's brief is "not imbued with the attributes of legal scholarship," it may still contribute a number of things to the Court's store of knowledge and arguments: in particular, expertise and disinterestedness.  Her other point is that she has "a different understanding of the relationship between law and politics" than Fallon, and places greater practical significance on "the differences in form and context between an amicus brief and legal scholarship."  Because law and politics are not so easily separated, this helps justify professors in "signing onto amicus briefs that contain reasonable arguments that promote results they prefer, even if there are competing arguments that are a better fit with existing precedent or other authorities."  And because the goal of a brief is to persuade within a relevant context, the rules should differ from those applicable in scholarship.  For instance, "a brief that explicitly noted every precedent or doctrine that at least one signatory disavowed would lose some of its power to persuade. . . . The primary goal of filing such a scholars' brief is to influence the outcome, and thus Fallon's suggestion comes at a high price for those who write or sign such briefs with the hope of having such an effect."

I applaud Frost for setting out her views so clearly.  But I disagree with her.  I do not think she succeeds in demonstrating that A implies or requires B, and that leaves her response with the distinct quality of being a non sequitur.  More below.  

A brief, Frost writes, sets out to persuade, and she makes clear that by "persuade" she means to encourage the court to reach a particular outcome.  But the value provided by scholars' briefs, she says, lies in the expertise and disinterestedness of its contributors.  If that is true, then a brief that sacrifices disagreement on details and candor about counter-arguments achieves its persuasive power precisely by throwing overboard the main qualities that, she says, make a scholars' brief a distinct contribution.  Certainly, to refer back to one thing she says, a scholar who signs on to a brief without adequate knowledge of the cases and arguments involved, and does so because she wants to influence the court to adopt a specific outcome, is displaying neither expertise nor disinterestedness.  I question how such a person can even be said to be "persuasive," except by misdirection--ie., these signatories imply to the Court that many experts share the views expressed in the brief, despite the fact that Frost doesn't demand true expertise or its exercise by these signatories.  

Whatever the merits of Frost's arguments, I don't think they hang together: her arguments for the special value of scholars' briefs tend to contradict, rather than support, her arguments that because law and politics are interrelated, scholars have a lesser duty when signing amicus briefs as scholars.  A carefully, thoroughtly, and fairly written scholar's brief can indeed provide the Court with something: it can give it expertise and disinterestedness on a particular legal or factual question, without immediate regard for the outcome.  If it doesn't do that--if it is just a standard rhetorical exercise in persuasion--then, whatever value it may have, it lacks special value as a scholars' brief, and the signers really ought to abandon their implicit claims of authority and sign without adding their academic affilliations.  

To repeat what I said in the earlier discussion, I do think there could be considerable value in a group of scholars in an area getting together a network in which they look at upcoming cases for the purpose of preparing disinterested amicus briefs on questions in which they have genuine expertise and that are unlikely to have already been noticed by the Court or fully canvassed by the contending parties.  Those briefs would add something genuine to the stock of knowledge available to the Court in deciding the case, and would demonstrate far more than the typical scholars' brief does today that the academy has something real to contribute to the judicial process, other than just a large group of scholars with enough time in their day to sign on to a ghost-written brief.  Today's scholars' briefs are often the equivalent of Super-PACs: heavily coordinated with the parties and generally parroting the same points.  But a group of scholars interested in canvassing the Court's docket for cases and questions in which they could say something genuinely new and important, without caring who wins or loses, could do a good deal to aid the Court.  

Again, someone ought to at least try this, and of course I'd be happy to help coordinate it.  But I'm afraid that I think Frost's defense of the status quo ultimately doesn't succeed.




Posted by Paul Horwitz on January 22, 2012 at 01:39 PM in Paul Horwitz | Permalink


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Amanda writes:

(In fact, I doubt that any professor has ever signed onto a scholars' brief that advocates for an outcome that professor does not like, even if the professor thinks the brief makes sound legal arguments.

Just as a minor aside, an interesting underlying question here is how you measure whether a professor "likes" an outcome. For example, a professor might favor a theory of constitutional interpretation because of some normative commitments, and might sign an amicus brief in a case in favor of applying that theory even though the professor does not favor the result that the theory will produce in that particular case s a matter of policy. That is, the commitment to the theory might trump the commitment to the desirability of any outcome in that particular case.

Posted by: Orin Kerr | Jan 23, 2012 9:42:23 AM

Amanda, thanks; of course, I always worry when I critique someone that I have unfairly presented their views and try not to do so. I appreciate your amendment.

Posted by: Paul Horwitz | Jan 23, 2012 9:21:51 AM

Paul, I'm glad you took the time to read and comment on my essay. I think you portray it fairly with one exception. When I wrote that scholars' briefs can add value because they are written and signed onto by "disinterested" experts, I was referring to the fact that professors are not beholden to a client and are not paid to take the position they are advocating for in the brief. I did not mean that professors are disinterested in the sense that they lack preferences regarding the outcome of the case. (In fact, I doubt that any professor has ever signed onto a scholars' brief that advocates for an outcome that professor does not like, even if the professor thinks the brief makes sound legal arguments.)

Posted by: Amanda Frost | Jan 23, 2012 2:13:15 AM

I agree, Paul.

Posted by: Orin Kerr | Jan 22, 2012 4:53:55 PM

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