17 Sep “Me Too” Law Professor Amicus Briefs
This past month I received an email sent to over 60 law professors inviting us to join an amicus brief. The case is before the D.C. Circuit and involves the important issue of corporate responsibility for human rights violations under international law. The email was sent at approximately midnight on a Monday night and invited a distinguished group of over 60 law professors to add their names to the brief. According to the email, no significant comments were welcome, and any law professor who wished to join the amicus brief had one business day–34 hours to be exact–to decide whether he or she wished to join the brief. I did not join because I do not believe in signing my name to a brief that I had no role in drafting.
Now to be clear, I do not have any objections to law professors filing amicus briefs. I have little doubt that law professor amicus briefs can assist the court in resolving complex legal issues that are within their professional expertise. Such briefs may be “friends of the court” in the best sense of the word. But the current fashion of “me too” law professor amicus briefs strikes me as counterproductive. I clerked on the D.C. Circuit over a dozen years ago and I don’t recall a single law professor amicus brief, much less any of the “me too” variety. What’s changed in the interim? Do other law professors in other disciplines do this? Are these briefs the product of human rights clinics where students do the yeoman’s work of writing the brief, but they feel they need the gravitas of distinguished names to give the brief heft?
Of course, no judge or law clerk believes that all those law professors who sign onto the amicus brief actually played a role in drafting it. Wouldn’t it be more productive to get a half-dozen big name law professors to sign the brief, to at least give the court the (false) impression that each helped draft the brief? I would suspect that there is an inverse relationship between the impact of the amicus brief and the number of law professors who sign their name to the brief. Obviously there are plenty of law professors whom I greatly respect who are willing to sign “me too” amicus briefs, so I must be missing something. I just don’t know what it is.
Roger, Your position as to when *you’ll* sign on to a brief (never when you haven’t helped draft it) is perfectly defensible and praiseworthy. But why do you imply that should be a general standard, or worse yet, that we should make it appear misleadingly to be the standard? As you say, nobody believes that all those professors actually played a role in drafting the brief. And I’m not actually sure that it makes a difference. If you write a brief, I read it and think, “That’s perfect, much better than I could do, and anything I’d change would detract from it” — and then sign it — our two signatures should count just as much as two collaborating authors. The suspicion, I take it, is that not everyone signing on to a brief feels that way about it, or even has the opportunity to carefully evaluate the product. Indeed, that risk may be directly proportionate to the rank of a scholar in the field, since she is less likely to have spent time on it. And as the number of those signing grows, the “authenticity” of any given assent might drop, as it becomes more likely that one is… Read more »
I think in a perfect world it would be nice to have a week to evaluate before signing. In a world where civil litigation is the only way that things get raised in a way that might be meaningful because of the abdication of the Attorney General, then we do the best we can with what we got.
Best,
Ben
Wow. If the government is behaving lawlessly, it increases the need for legal action, and probably the need for amicus briefs (remember that these, not civil litigation, are the subjects of the post, and note that the action Roger describes is unlikely to be directly against the US government). Let’s suppose it also increases the need for accumulating signatures on each brief submitted, though arguably that just diverts energy from the drafting and filing of additional briefs (better yet, civil actions) by the additional signators.
Had I just signed one (who knows, I might have signed the one Roger mentions, which I didn’t see), I would hate to have my signature discounted on the premise that I might share Ben’s view — that is, based on the supposition that I felt entitled to spend less time reviewing it because the AG had abdicated. Even as to suits against the government, I imagine that the vast majority of those signing briefs hold themselves to the same standards regardless of whether the defendant is Mukasey, Gonzales, Ashcroft, or Reno.
Roger, I think there has been a move to amicus briefs with more selective “authorship” for exactly the reasons you set out here. See this for example, from Medellin.
Edward, I do not understand your point on abdication. My point was really quite simple – private citizens in civil litigation appear to have to bring the cases that the Attorney General is simply unwilling to raise issues about (torture etc). Since that is the case, persons with much fewer resources are faced with the task of determining whether to support and participate in amicus processes. Sometimes we wish we had more leisure to evaluate the brief, but sometimes we do not have that luxury. Are we therefore wrong for being willing to support the amicus brief by signing on to it? I think not. The point is whether the person signing the amicus brief feels comfortable putting their name on it with others. That is a personal decision for each of us and each of us reach those decisions in our own manner. For me, I would like to have more time to provide input but sometimes that is not possible based on the request. I do not see what is particularly controversial about that decision to sign on. Or maybe, like in so many things described in spaces like this, there is some hidden code or hand signals… Read more »
Ben, Forgive me if this seems curt — I just want to be clear, and to my knowledge we are the only ones reading this now. My point was really quite simple – private citizens in civil litigation appear to have to bring the cases that the Attorney General is simply unwilling to raise issues about (torture etc). Since that is the case, persons with much fewer resources are faced with the task of determining whether to support and participate in amicus processes. I was willing to stipulate that, though as I said, you’re conflating the supposed need to stand in for the AG (by initiating actions seeking to end illegal behavior) with the topic at hand (the method of stockpiling additional signatures, to briefs that will already be filed, in actions that — by definition — have been initiated by someone else). Given the scarce resources you describe, there may even be a tradeoff between these activities (that is, time spent reviewing and assenting as the Nth signature on an amicus brief is time not spent filing actions and representing additional parties), but I don’t know. For me, let a thousand briefs bloom. Sometimes we wish we had more… Read more »
Oh, there might be some others reading this Edward, though I have to admit a somewhat morbid and unique interest in the topic, having a read a number of the sort of amicus briefs Roger is talking about in the detainee cases, and also having filed two of my own as a pro se layman (see my comment on Ken’s amicus post).
I was even invited to join one such brief in lieu of filing one of my own in a case once, but declined as the object of the execrise was to present my own particular view of the issues, not get my name on a brief. Being a layman, I considered it quite an honor to be asked though.