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.