Should I Join Law Prof Amicus Briefs, Write White Papers, Or Do Other Advocacy Work? (Jr. Law Prawfs FAQ)

My guess is that today's FAQ takes a slightly different form based on one's field of research. For me it first presented itself as a request to join a law professor amicus brief. Since then these requests have included drafting white papers and participating in other advocacy projects.

So the question, framed broadly, is: What is the value to one's scholarly research agenda, especially as a junior scholar, in engaging in legal or policy advocacy within one's field?

In tackling this question, it might be helpful (or not) to put to one side the other benefits of engaging in advocacy work as a law professor, such as service to the broader community (and making a difference in the world!) and instead focus on the impact on one's scholarly profile. Also, as with prior questions, we're assuming the tenure work is getting done and the Ask Your Colleagues cardinal rule has been followed.

Let's start with law professor amicus briefs, as my sense is that there is quite a division of opinion on whether law professors should join them. As a former Kennedy clerk who teaches and writes in administrative law and constitutional litigation, I receive a fair number of requests to join law professor amicus briefs. My general rule is to not join them, unless they are squarely within my area of expertise, I have the time to thoroughly review and comment on the draft, and I agree completely with the final version. I have not joined many amicus briefs; in fact, I think I've only joined one, for a case in the Ohio Supreme Court. Time constraints for review are usually the main barrier, and I hope to join more briefs going forward.

One of the main benefits of working on and joining law professor amicus briefs is that it gives one an opportunity to interact with other scholars in one's field and further strengthen one's networks. Another potential benefit is that it could provide an opportunity to get one's scholarship into the brief before the Court -- bringing more exposure to one's research. The adlaw profs brief in support of the United States in the pending immigration case United States v. Texas is a terrific example of that. Although this may be an obvious point, one should make sure one agrees with everything in the brief. Having drafted a fair number of amicus briefs with my lawyer (not academic) hat on, there is often a lot of room to maneuver in an amicus brief to allow more parties with diverse views to join.

Of course, we're not talking about the somewhat distinct scholarly project of writing one's own amicus brief in a case. The scholarly benefits of that may be different and perhaps can be much greater. Stephen Sachs' amicus brief in Atlantic Marine Construction comes immediately to mind. My coauthor Aaron Nielson and I are just waiting for the right qualified immunity case to file a law professor amicus brief based on our empirical work on qualified immunity to encourage the Supreme Court to, among other things, require lower courts to give reasons for exercising (or not) their Pearson discretion to reach constitutional questions.

As for white papers and reports for organizations, my guess is that the scholarly cost-benefit analysis is going to vary greatly depending on the field, the organization, and the topic. That's been my experience. The first white paper I did was on the importance of cost-benefit analysis in financial regulation. My colleague Paul Rose and I coauthored the report for the U.S. Chamber of Commerce, and we presented the report and our findings at a conference at the Chamber shortly thereafter. At the time (though not now), Paul and I were among the few defenders of cost-benefit analysis in financial regulation, so the report got a lot of buzz and "but see" citations. 

The second report was commissioned by the Administrative Conference of the United States (ACUS) to assess the role of federal agencies in the legislative process, with a particular focus on technical drafting assistance. ACUS is a government agency composed of government agency officials at various agencies and public members (including a lot of law professors) that commissions research on the federal regulatory state. This was an amazing opportunity, as ACUS opened many doors at federal agencies for me to conduct interviews and surveys for the project. The feedback from the ACUS members during the drafting and recommendation process was invaluable. I should note, though, that this was a tremendous amount of work. For example, the final product, with agency-specific case studies in the appendices, reached 90 pages, and I spent hundreds of hours on the project.

Both projects built on existing research interests and have led/will lead to more traditional scholarship. Both also included some monetary compensation for the work, despite both reports being independent from the sponsoring organizations (and ultimately departing at least somewhat from the organization's position on the issues). If you decide to do any consulting work for which you receive compensation, I highly recommend that you disclose those outside activities, even if your institution does have a form or policy for that (mine doesn't). For instance, per John Coates' helpful advice, I post a financial disclosure form on my faculty profile. It's also worth flagging specifically any consulting work directly related to a subsequent law review article in the article itself.

So what have been others' experiences regrading the scholarly value of doing advocacy work in their field? I hesitated to do a FAQ on this topic because my hunch is that the answer(s) to this question will depend so much on one's field, in addition to the specific opportunity. But because I think advocacy projects can (and cannot) present incredible opportunities to build one's scholarly profile, especially as a junior scholar, I thought I'd post it and see what others think.

 

@chris_j_walker