Law Professor Amicus Briefs
Justice Ginsburg gave a speech at Suffolk Law School last week and briefly addressed the interesting topic of the proliferation of law professor briefs. Here is what she said:
As a judge now for some 26 years, I appreciate the importance of academic commentary. Our legal system gives judges considerable authority to shape the law through litigated cases. We entrust that large authority mainly to generalists, to jurists who cannot do their job well without help from specialists in the academy.
Benjamin Cardozo expressed the point best: “The Judge goes upon the Bench, and sees before him a list of names and numbers . . . . [O]ne case follows another. . . . More and more in such cases we are driven . . . to rely upon the work of a [legal scholar] . . . . It is not to be expected . . . that overnight and at the call of a single case we shall do the work . . . [scholars] have been doing in lifetimes of devoted and intensive effort.”
At the Supreme Court in recent terms, the number of law professor amici briefs we have received has notably increased. I count that a good and useful development. Several of the best oral advocates appearing before the Court nowadays, I might add, are law teachers.
I think that law professor amicus briefs are here to stay and that, at least for some law professors, the drafting of such briefs will become an increasingly important part of their job. But one thing that I have always found curious are the occasional emails we law professors receive from various sources inviting us to add our name to a completed law professor brief. My favorite example is Hamdi v. Rumsfeld, in which over 125 law professors (many of whom are friends of mine) are listed as amici for appellee Hamdi. If you print it out the caption alone takes over four pages just to list all the law professors who signed the amicus brief.
My experience from private practice is that it generally is understood that every attorney whose name appears on a brief contributed in some measurable way to the end product. But it is quite common today to be invited to sign a law professor amicus brief with the understanding that you can have no role whatsoever in drafting the contents of the brief.
So my questions are, (1) why do the real authors of those briefs invite “me too” signatures from other law professors; and (2) why do law professors add their name to the “me too” list? I have my theories, but I would welcome the input of others, especially those who actually have been involved in the practice.