With Amici Like These...: A Response to Josh Blackman on Law Professor-Authored Amicus Briefs

Over at his eponymous blog, Josh Blackman wonders out loud about the ethical propriety of a law professor co-authoring an amicus brief when they are one of the listed amici--that is, of being both one of the parties to an amicus brief and one of its authors, hearkening back to the old line about the lawyer who represents himself having a fool for a client. As Josh writes,

The role of the scholar and that of the advocate is different. I don’t know that I can do both simultaneously. As a scholar, I go out of my way to charitably describe both sides of an argument (as best as I can). As an advocate, this tact would be foolish, and possibly unethical to the extent that it impaired my client’s case. As a professor, I would be hesitant to make an argument that hasn’t been completely thought through, as it may impact my scholarly reputation. As an advocate, especially in litigation that is moving quickly, a much more lax standard would apply to provide the tribunal with the best arguments counsel can muster. As an advocate there are certain arguments I would not be comfortable making as a scholar, and vice versa.

Admittedly, I have a dog in this fight, as I have written a number of amicus briefs over the years, many (but not most) of which have been on behalf of groups of law professors that included me. So folks should take my (negative) reaction with a significant grain of salt. That said, I have two principal critiques of Josh's reaction--one that goes to how he frames the problem, and one that goes to the role of amicus briefs, more generally.

First, with regard to Josh's framing of the distinction between the advocate and the scholar, this is, in many ways, just a retread of Dick Fallon's more famous attack on scholarly amicus briefs from a few years back. On the merits, though, it's worth emphasizing that, although counsel on an amicus brief do have ethical obligations, those obligations are to their clients (i.e., the amici), and not to the party (if any) in whose behalf the brief is filed. Thus, the advocate's job is is to zealously describe the amici's position--and not necessarily to take sides as between the parties.

Indeed, some of the most effective law professor amicus briefs are those filed in support of neither party--where the brief is meant simply to educate the court about the particular expertise of the amici. In those contexts, I just don't see the tension Josh identifies--unless, as Fallon worried three years ago, law professors are signing (and co-authoring) briefs they haven't thought through. That's definitely a problem, but it's not an indictment of law professor briefs, writ large. Indeed, it's both my practice and my experience that folks who sign onto the briefs in which I'm involved only do so when they have thought through the issues and when they agree with the underlying position taken by the brief. So long as that's true, what's the ethical difference between a professor who associates herself with that position (by signing the brief) and involving herself in explicating that position (by co-authoring it)? 

Second, as a practical matter, I've always viewed the purpose (and best practices) of law professor amicus briefs to be to illuminate relevant aspects of the case that are beyond either the interest or the experience of the parties--and to do so in a way that does not come across like a party's brief, but that rather takes more of an academic high road. (Indeed, various court rules require amicus briefs to offer arguments not made by the parties.) If we agree that at least most law professor amicus briefs should aspire to this model, then it's usually quite beneficial, if not essential, to have an academic lawyer who is also one of the substantive experts involved in the drafting--since she may often have a better handle on the academic position(s) the brief is designed to take than practicing lawyers who spend their lives in the litigation trenches. In other words, it's not just that I see no ethical problem with academics co-authoring academic amicus briefs; it's that I think it redounds only to the benefit of those briefs--and of their likelihood of at once (1) accurately conveying the amici's position; (2) in a manner likely to be considered a "true" amicus brief. Otherwise, what Josh is suggesting is that academic experts either not involve themselves in drafting the brief that is ultimately on their behalf, or not include themselves as one of the experts whenever they have helped to draft the argument--even when their academic expertise and their legal drafting perfectly dovetail.

Don't get me wrong: I agree, and always have agreed, with Fallon's central charge that too many law professors sign too many amicus briefs without thinking carefully about the position the brief is taking or how that position is both (1) one on which the signing scholar has relevant expertise; and (2) something the scholar completely supports. But there are plenty of law professor amicus briefs to the contrary that take narrow and academic positions on specific substantive issues not adequately briefed by the parties. In those cases, not only do I not see a problem with those professors involved in writing the brief also signing on as amici if they have the relevant expertise; it's my experience that such bookended involvement only tends to make the brief more useful to the courts, and, therefore, more effective.