30 Jan 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.
My impression is that the legal academy (full time and tenure track professors at AALS accredited schools, and a few honorary exceptions from the fringes) is just small enough to create the impression of unanimity. This is certainly the political purpose behind “mass amicus” briefs such as Hamdi and Hamdan, which unite whatever genuine left, liberal and libertarian streaks are common to over a hundred law professors to represent to the public what “The Law Professors” have to say.
Of course any such agreement among so many legal scholars would be quite meaningful in a civil law system, or in international law, but in the U.S., at least in the popular imagination, “Law Professors”– *especially* where they are in agreement– are simply percieved as another interest group. This perception plays into the
F[aux] News version of populism, which casts “Law Professors” alongside “Trial Lawyers,” “Media,” and “Hollywood” as the province of liberal elites, and snickers at amici brief as little more than PR campaigns or MoveOn type interest group tactics.
Loyola New Orleans
JSD Cand. NYU
I don’t think you see similiar occurances in other fields, say geologists signing on to papers just because they happen to approve of the contents.
snickers at amici brief as little more than PR campaigns or MoveOn type interest group tactics.
Yep, that’s pretty much my reaction. I certainly understand the temptation to sign on to an opinion that you find both legally and politically satisfying, but it’s probably one they should have resisted.
As for an “agreement among so many legal scholars” I think it has more to do with their agreement over which party they vote for in the ballot box than anything else.