The number of amicus briefs filed by academics has increased dramatically in recent decades. In principle, the reports of such scholars should help courts resolve difficult cases by sharing relevant expertise. Judges are necessarily generalists. Scholars in a particular field, on the other hand, may have real expertise on the specific issues at issue in a given case that could help judges make a decision.
Whatever the merits of such briefs in theory, some have raised questions about their value in practice. In a 2012 Journal of legal analysis article, Professor Richard Fallon suggested that too many professors “compromise their integrity” by joining amicus briefs “too promiscuously.” In 2001, Professor Ward Farnsworth reached a similar conclusion and suggested that law professors “should not sign documents unless they are prepared to defend them orally in the courts to which the documents are presented.” (My co-bloggers Orin Kerr and Ilya Somin also answered some of these questions in 2010.)
As the number of amicus briefs has increased, I suspect that the influence such briefs have on courts has diminished – and I suspect this is especially true of those briefs filed by interest groups (who often file briefs for fundraising or promotional) and large groups. of academics. While a brief submitted by a few well-known experts in their field of expertise may matter, I doubt many judges are impressed by relatively generic submissions submitted on behalf of dozens of academics, and with good reason.
In some fields, it is quite common for professors to sign onto virtually any academic brief that supports their preferred outcome, without regard to what arguments are actually being made or whether those arguments align with the scholarly opinions of the academic signatories. In some cases, professors will sign even when they know little about the topic – such as, for example, what a given state’s law has to say about a complex issue – and when they have not engaged in any independent study of the issue. In still other cases, academics may solicit signers for documents sight unseen – and some apparently sign under such conditions. (In fact, I saw one of these solicitations just in the last month.)
If the value of an academic amicus brief is to provide academic expertise, then it would seem to me to be completely unethical for academics to sign their names to briefs that do not reflect their academic expertise. And to the extent that some (many?) academics do not adhere to that principle, it should not surprise us if this diminishes the value of such briefs overall, as judges learn to set aside what are little more than well-formatted policy statements.
In my case, I have never been willing to accept amicus briefs that did not address issues within my expertise and that met the Farnsworth standard, but over time I have become even more reluctant to sign such briefs. Nowadays, as a general rule, I will not sign a brief unless I helped write it or had a role in shaping the arguments, unless by serendipity a brief aligns with my previously well-considered opinions (which can happen if, say, the author drew from my published work). It’s not that I don’t have opinions about how I would like many cases to be decided. It is rather that there is no reason why a court should care what I think about a case unless I can say, without hesitation, that I have studied the issue to a level that the justices have not. Is this approach too stingy? Maybe, but I’m inclined to think it’s the right one.
From Professor Fallon’s 2012 article:
On issues of professional identity, many of today’s law professors want to be valued as scholars on par with the arts and sciences professors who dedicate their careers to the sometimes solitary search for truth or knowledge. honest vision. Yet many also aspire to gain immediate influence on public events in ways that few arts and sciences faculty members could dream of. In seeking to realize this latter ambition, we law professors may be tempted to tailor our arguments to our audiences, to overestimate the strength of support for our conclusions, and to fail to say what would reduce our impact.
The vocation of a law professor is not exclusively that of a scholar. We can and must play multiple roles. In doing so, however, we should remember that when we attempt to influence public issues, we almost inevitably seek to exploit the credibility that we – and our predecessors and colleagues – have earned in the roles of scholar and teacher. These roles create obligations of responsibility, reliability and comparison. If the emerging norms in signing scholarly documents betray the expectations of scholarly responsibility, trustworthiness, and discussion that we have sought to promote or seek to capitalize on, then we should hold ourselves to higher standards