28 Oct Richard Fallon on Law Professor Amicus Briefs
Harvard Law School’s Richard Fallon has a new short, reflective essay expressing important concerns about the many amicus briefs that we law professors author, submit, and sign. “Scholars Briefs and the Vocation of a Law Professor.” (Via Volokh Conspiracy, and via Prawfs; the comment threads have some interesting points.) From the introduction:
With scholars’ briefs having the potential to influence the outcome of sometimes high-stakes litigation, requests to prepare them often come either from a party or from a firm or organization whose interests align with those of a party. Many law professors seem to like to draft, or at least collaborate with law firms in drafting, scholars’ briefs.
For the professors who are asked merely to sign a scholars’ brief, participation may be even harder to resist. Dangled before them, with little or no work required, is the possibility of having an impact on the development of the law. As long as the brief supports the right side, it is hard for a professor who wants to influence the law’s trajectory-as nearly all of us do-to say no.
But law professors often should say no, or at least we should say no much more frequently than many of us now do. And when we say yes-as we should sometimes-we should insist that scholars’ briefs reflect higher norms of scholarly integrity than many such briefs now satisfy. Or so I shall argue in this essay.
In so arguing, I hope to spur an overdue discussion.
The subject of scholars’ briefs, and the standards that law professors ought to apply in determining whether to sign them, has received almost no attention in the literature. Yet the topic is an important one. Besides forming an increasingly significant component of many law professors’ professional lives, scholars’ briefs open a window onto broader questions about law professors’ professional roles. We are long past the day, if there ever was one, when most law professors thought their sole professional contributions should come through traditional scholarship and teaching. Modern law professors familiarly participate in law reform initiatives, take on paid and unpaid client representation, and write regularly for non-scholarly audiences. Indeed, many law schools now boast in their alumni magazines and on their websites whenever their faculty publish op-ed articles, appear on radio or television programs, or even post comments on blogs.
In my view, participation in scholars’ briefs gives rise to more complex ethical issues than do most of the other sub-roles that law professors play, largely because the signers of scholars’ briefs represent their submissions as offering distinctively scholarly expertise and perspective. But there is of course no complete divorce between the role of teacher and scholar, on the one hand, and most of the other law-related functions that law professors sometimes take on. To be blunt, law professors recurrently attempt to leverage their credibility as teachers and scholars to influence non-scholarly audiences, sometimes for personal gain and sometimes without satisfying the standards on which their scholarly reputations depend. When law professors seek to trade on their academic reputations in the performance of non-academic roles, two sets of moral and ethical issues arise. One involves the extent, if any, to which an implied warranty of scholarly integrity ought to preclude professors from making assertions to courts or to non-scholarly audiences that they would not make in scholarly books or articles. The other set of worries involves the risk that non- scholarly activities—which would otherwise be permissible or even admirable in themselves—might inhibit future scholarly assertion of inconvenient truths.
I’ve drafted some amicus briefs in international law cases in US courts and I’ve signed bunches more. But I’ve always had a nagging concern about why a court should take seriously what I have to say on account of being a professor – a professor with an agenda. I understand that having an agenda is otherwise known as “writing a brief,” and I also understand that the literal notion of an amicus as a genuinely neutral “friend of the court” has long since been extinguished. I am not a litigator by trade, and have always treated my own contribution to amicus briefs as strictly substance in areas in which I believe I am expert. I have had long suppressed questions about why courts should accept these briefs at all, given that they seem to me – my amicus briefs and everyone else’s – just advocacy leveraged by quite specious claims of “neutral” expertise. Meaning by “specious” – the expertise is real, the neutrality is not.
So litigation is a mysterious realm to me and, to be perfectly frank, as a transactional lawyer who can’t imagine litigating, and despite my belief in the adversarial advocacy process, when I’ve been a personal participant, I find briefs to be a species of writing entirely too close to, well, lying. I don’t mean that in a bad way, of course; that’s an aesthetic judgment rather than a moral one, because I do believe in the adversarial process. I suppose that in making my own peace with amicus practice, I’ve essentially told myself, well, “Markets in everything. Courts know perfectly well that amicus are not neutral friends of the court and will discount accordingly.” The concerns raised in this article are, as with everything Richard Fallon writes, exquisitely crafted, careful, nuanced, and sensitive from inside the profession and inside the professional role. It is skepticism from inside, and gains a great deal of intellectual power from this positioning, especially concerning something that has received very little attention. This is an essay in the sociology of the profession, but one that comes from inside out. My own concerns here are much more external. But I fully share the view that this is “an overdue discussion.”
The reason I raise this here at OJ, beyond what Professor Fallon says, however, is that particularly with the Supreme Court having accepted an Alien Tort Statute case presenting enormously important substantive issues, we international law professors are busy already sorting ourselves into encampments of amicus brief writers, with some leaders coordinating the troops on each side. The issues are important and the stakes in this ATS litigation large; these are worldly issues. But the problems of informing the Court on international law issues present much graver dangers of expertise and neutrality than is the case for the kinds of domestic law issues that this essay grapples with. We presume to instruct US domestic courts on “international law,” on issues in which fragmentation is the norm.
I frankly wouldn’t know, if I were a court, how to cut through the web of quite contradictory assertions that international law scholars make when we get into litigation, without cavil or hesitation or any suggestion that anyone might plausibly go the other way. And particularly so as American lawyers, trained in the litigation practice of never conceding anything, never expressing anything other than robust confidence in one’s own position, and seeing that as what an advocate is supposed to do. I said it’s an aesthetic judgment, not a moral one, this practice of utter certainty of belief about stuff that, whether one likes it or not, just is contested – but did I mention “lying”?
I have always thought it better to acknowledge the weaknesses of one’s position, the views on the other side, and address them, and if necessary – as I think it the case in “international law,” at least on the issues addressed in these kinds of cases – assert plausibility, greater and lesser plausibility, rather than certainty. I have yet to find an experienced litigator in an ATS case who thought that was a good idea – and that primarily, if I were to be blunt about what was actually meant, because the court would not be experienced enough at international law necessarily to know that the asserted certainty was misplaced. So much for the “markets in everything” – did I mention “information asymmetry” and “agent-principal failure”?
The asymmetry here is of a special kind, however – not strictly about the content of international law, but instead as to the certainty one ought to have in a particular view as to that content. We want it both ways as scholars; the ability to obfuscate as a pure advocate, and the ability to market ourselves not merely as neutral but, in the literal sense of friend of the court, an agent of a principal, a claim of trust or, anyway, “Trust me – I’m an expert!”
Of course, courts are rightly skeptical of international law scholars these days, and probably don’t see us as much other than baroque ornamentation for an opinion, a scholarly accouterment. I suggested to an ATS defense-side lawyer recently that the proper way to open an ATS amicus brief was with a frank statement that the court should pay no attention to any of the scholars, but if it was going to pay attention, it might as well read this one. The response was that this was probably unnecessary, as the court already had this view. And added that the real reason for these briefs was to try and get famous professors’ names in front of the judge’s clerks, who might be much more impressed and flattered – and, delicately and indirectly, did I know any? (This Goldsmith fellow, perhaps, or Professor Chesney? [joke! — ed.]) You can understand why I am not a litigator.
I will, I’m sure, participate in some fashion in our upcoming War of the Roses. I, like many international law scholars, will march off to battles of flower-and-song with some congenial group of scholar-warriors, and huddle around campfires late at night to sharpen our submissions before going the next morning to blow our scholarly trumpets and engage in scholar-advocate combat. But amicus practice by law professors has a lot more ethical depth to it than we ordinarily acknowledge, and I’d commend this article to you, and think that in international law in particular we ought to talk quite a lot more about what this means, especially for my field when it shows up in US courts.
I happened to hear the discussion of Fallon’s paper yesterday at NYU’s Dworkin/Nagel Colloquium. As the first scholar to submit an amicus brief to the WTO Appellate Body, I have thought a fair amount about the role of academic amici in that rather different litigation context. I am troubled by Fallon’s view that an academic amicus should viewed by the court as, and behave with the ethics required of, a disinterested expert (as if they were testifying as to the content of foreign law as a fact, for example) The judges are ultimately responsible for understanding and interpreting the law, and it seems highly inappropriate to me that they should rely on academic amici as “experts.” Instead, the judges ought to be influenced by such briefs only to the extent that they arguments they contain are illuminating or persuasive. (This is a point that several of my colleagues urged at the colloquium). It is certainly true that the reputation of the amicus as an academic might help get a brief read, to the extent that clerks and judges use academic reputation as a predictor of the quality of argument in the brief. It should not result in any… Read more »
Rob – thanks for commenting. The position you suggest is certainly how I have always thought of it in my own amicus work, but with the anxieties I suggest in the post; Dick’s essay certainly has caused me to think much harder about the extent to which the question is expertise being presented to the court. I think it matters somewhat what the forum is. The WTO Appellate Body consists of people who are expert in the law at issue, and have a genuine ability to make informed decisions about what to believe and not believe concerning the law; effective persuasion means something. I myself think that is far less true when US courts consider public international law in matters that make up much of ATS litigation. I would guess that US courts do find themselves looking around to figure out not just who is persuasive, but who seems to be expert, and look as well at signaling behaviors to sort that out. In that case, the expertise role seems to me to loom much larger. Perhaps that is a small subset of cases – US courts considering highly politicized legal issues in highly contested areas of public international law… Read more »
Rob – ps. as you can tell, I really hate brief-writing!
As someone whose dissertation is on the role of amici participation in international adjudication, I fully appreciate this call for opening up a discussion on scholars’ participation as amici in litigation. However, with all due respect, there are two questions that I would like to raise in relation to the arguments voiced: 1. To what extend is scholars’ participation as amici different from their participation as experts, or parties’ use of their scholarship (sometimes financed/supported prior to the commencement of litigation) to support their arguments? After all, none of these forms of scholars’ participation in litigation is new. The use of Dr. Clark’s doll study in Brown v. Board of Education, and the subsequent footnote #11 is probably the most famous example of these. In my own dissertation that focuses on international courts, I have discovered that there is a multiplicity of ways through which Third Parties weave their arguments in international litigation: they submit amici, serve as experts, supply their research to the parties (who refer to them and quote them in their briefs), and often provide legal aid to the parties, whose position advances their own agenda. Therefore, perhaps, all of these modes of scholars’ involvement should be… Read more »
Anna, is your dissertation online where, or do you have some piece online that addresses this? I’d be happy to post a link here.
I should stress, though, that Professor Fallon is not talking specifically about international law, either international law in international fora, or international law in US courts. That’s really my extension of his remarks. And I take Rob’s and your points above re the differences with international tribunals and fora, in which the judges are themselves well informed on the relevant law. But I don’t think that’s the case with US courts in many, or even most, cases, such as ATS litigation.
Thank you, Kenneth. Unfortunately, the dissertation is not online anywhere, because it’s still in the making. But, I believe that the part where I describe how the amicus curiae procedure was first internationalized, from the UK to the European Court of Human Rights, is included in the ASIL 104th meeting proceedings (alas a paid service.) The easiest example that comes to mind is that of Interights, a well known human rights NGO based in London. Interights is the first organization, whose amicus brief was admitted by the ECtHR, after the judges legalized the procedure in 1982. Since then, the organization has a tradition of submitting amicus briefs before Court, producing reports, which are often referred to by the parties, as well as running a legal aid program for strategic litigation before the Court. In the other region, however, in Africa, Interights has used different procedures that are made available by the system. Interights requested preliminary measures from the Commission (an opportunity not available in the ECtHR) in case of Libya, and has supplied research, which served as the basis for the Court’s ultimate Order. Undoubtedly, participation as amici, internationally, as well as domestically has important normative implications both for the… Read more »
But the problems of informing the Court on international law issues present much graver dangers of expertise and neutrality than is the case for the kinds of domestic law issues that this essay grapples with. We presume to instruct US domestic courts on “international law,” on issues in which fragmentation is the norm.
Ken, is this really true? To take only the most obvious example, U.S. constitutional law is no less fragmented than international law — and may well be more fragmented. Just consider the various amici in cases involving the ACA.
I am completely willing to accept that the danger of courts relying uncritically on “experts” in international law may be greater than in constitutional law, in which American judges are normally better trained. But that seems a difference in degree, not in in kind.
Dear Ken, I have a view of the role of domestic courts with regard to international law that sees domestic courts as active agents in the interpretation and development of international law, not as passive takers of such law as the product of an external, autonomous juridical/interpretive community. Thus, it will come as no surprise that I would be displeased at any domestic court that deferred to expertise-whether in the foreign ministry or by scholars-about international law. At the same time domestic courts need to see themselves in dialogue with tribunals and other institutions at the international or regional level, and how to structure that dialogue procedurally as well as through canons of what one might call cross-interpretation is an important intellectual challenge. (This is a normative ideal I realize that some domestic legal systems may have constitutional or legislative constraints on how directly the courts can engage with international law and some international regimes may impose constraints-for example Article 23 of the WTO Dispute Settlement Understanding. But the US courts are generally speaking required to interpret US law in a manner consistent with international legal obligations of the US, which in turn means engaging with that law in the… Read more »