Scholars’ Amicus Brief Controversy Reflects the Evolving Relationship Between the Bench and the Legal Academy

Last week, a New York Times article by Adam Liptak called attention to an article draft by Harvard Law Professor Richard Fallon in which he worries about the practice of law professors’ filing amicus briefs on their own behalf as scholars.  Fallon complains that “[m]any scholars’ briefs are actually not very scholarly.”

I was the lead attorney on one of the two main briefs discussed by Fallon and Liptak, but I have no gripe with the substance of what either wrote.  (Fallon in particular was extremely generous in how he described me and my work, so much so that I will not quote what he wrote for fear of appearing immodest.)  Fallon explained that he declined to join my brief simply because it cited a large number of cases he had not read and absent a self-defeating disclaimer that he was not responsible for the brief, he therefore could not sign it in good conscience.  As I told Liptak for the Times story, I admire Fallon’s high standards.

That said, the underlying phenomenon of scholars’ briefs warrants further thought.  Whereas Fallon asks when law professors should author or sign onto scholars’ briefs, I am more interested in the questions of why scholars’ amicus briefs have proliferated recently, and what light that proliferation sheds on the evolving relationship between the bench and the legal academy.

The “Arms Race” Effect as an Explanation for the Proliferation of Scholars’ Briefs

What accounts for the fact that the Court went from receiving three scholars’ briefs in the 1985-1986 Term to receiving 56 such briefs last Term, even as its caseload shrank by a factor of two during that same period?

One possibility is simply the logic of an arms race.  In this view, scholars’ briefs are a bit like nuclear weapons.  Everyone would probably be better off if nuclear weapons had never been invented, but once they exist, countries whose potential adversaries possess nukes may come believe that they too must acquire an arsenal.

Likewise with scholars’ briefs, especially in cases before the Supreme Court.  If you are lead counsel for either side in a Supreme Court case and you know, or even simply suspect, that a scholars’ brief will be filed in support of the other side, you will take steps to ensure that one is filed on your side, too.  Thus, although individuals and organizations sometimes spontaneously volunteer to file amicus briefs, often the parties and their attorneys play an active role in soliciting such briefs from third parties with interests and/or expertise that may be relevant to the Court.  These days, in addition to seeking amicus briefs from states, NGOs, industry groups, and others, parties routinely seek scholars’ briefs.

If Amicus Briefs Make Little or No Difference, Why Are They Filed? The Lake Wobegon Effect

The arms-race analogy is imperfect, however.  Whereas nuclear weapons inflict terrible harm on the enemy, scholars’ briefs appear to be largely harmless.  As the Times story notes, there is little evidence that Supreme Court Justices read, much less are influenced by, amicus briefs of any sort. There is thus little for a party to fear from the prospect of scholars weighing in only for the other side.

Why, then, do parties seek scholars’ briefs and why do scholars write and sign them?  So far as the second question is concerned, part of the answer could be the Lake Wobegon effect.  Just as all of the children in Garrison Keillor’s fictional town are above average, so the writer of each amicus brief thinks to himself or herself something like this: “I know the Supreme Court rarely pays attention to the amicus briefs, but mine is different.”

The beauty of the Lake Wobegon effect is that it persists even once people are aware of it, as I myself can attest: Even as I write about overconfidence in this column, I remain confident that the Justices have been influenced by my amicus briefs!

An Alternative Explanation: Bridging the Gap Between the Bench and the Academy

I do not think that overconfidence alone explains the proliferation of scholars’ briefs.  I would suggest that, in addition, we might look to changes in the relationship between the bench and the academy.  For roughly the last two decades, federal judges and Justices have been complaining that legal scholarship holds little relevance for the work of the courts.

Writing in the University of Michigan Law Review in 1992, D.C. Circuit Judge Harry Edwards argued that law faculties should be “producing scholarship that judges, legislators, and practitioners can use,” but that instead they “have abandoned their proper place, by emphasizing abstract theory at the expense of practical scholarship and pedagogy.”

Such complaints, interestingly, lack any clear ideological bent.  Although Edwards is a liberal, his sentiment was echoed earlier this year in remarks by the conservative Chief Justice John Roberts.  Speaking at the Fourth Circuit Judicial Conference, Roberts resignedly agreed with Edwards.  “If the academy wants to deal with the legal issues at a particularly abstract and philosophical level, that’s great and that’s their business,” Roberts said, “but they shouldn’t expect that it would be of any particular help or even interest to the members of the practicing bar or judges.”

Chief Justice Roberts at least paid lip service to the notion that academic work that is of no relevance to deciding cases may nonetheless have value within the academy.  Others have been less kind.  For example, New York Times reporter David Segal recently suggested that legal academics’ supposed focus on esoterica comes at the expense of training students for the practice of law.

Segal singled out, as though it were typical, a 2003 article in the Brooklyn Law Review titled “A Future Foretold: Neo-Aristotelian Praise of Postmodern Legal Theory.”  The invocation of that particular article was triply misleading, though.  First, its author—UNLV law professor Francis J. Mootz III—has also written numerous very practical works on insurance, contracts and commercial law.  Thus, Segal’s suggestion that Mootz has his head in the clouds is wrong.

Second, Segal is also wrong in his suggestion that, in the legal academy, there is any current dearth of practical scholarship more generally.  As law journals have proliferated and tenure standards have been ratcheted up over the last several decades, the total number of journal articles has increased.  The result is both more practical scholarship and more “impractical” scholarship.

Third, much of what the critics lament as impractical is in fact, or at least should be, useful to the bench.  Segal, Chief Justice Roberts, and Justice Stephen Breyer, who was quoted by Segal to much the same effect as Roberts, all lament scholarship that is extraordinarily abstract.  But much of the branching out of legal scholarship in the last three decades has involved drawing upon other disciplines, including economics, history, psychology, and other fields. And each of these other disciplines can and should inform the work of courts and legislatures.

Is a proposed rule of contracts or bankruptcy law likely to lead to more or less economic waste?  What do really good historical studies (rather than “law office history”) have to say about the regulation of firearms at the Founding?  How does impulse control vary as children mature?  Such questions have clear relevance for the courts.

Moreover, as Segal acknowledges, a forthcoming article by Professors Lee Petherbridge and David Schwartz reveals that the Supreme Court’s citation of legal scholarship has declined somewhat from its peaks in the 1970s and 1980s, but still remains at its historical average level.  Thus, although Supreme Court Justices say that they are not interested in what law professors write, they act as though they are, at least some of the time.

The proliferation of scholars’ briefs may ultimately be due to law professors’ paying too much attention to what jurists say about legal scholarship, and not enough attention to what courts actually do.  After being repeatedly told that the courts are not interested in what we publish in scholarly journals, we law professors have taken to repackaging those arguments in the form of scholars’ briefs.

Yet judges and Justices may be more interested in our academic analyses in their native environment, the law reviews.  If this analysis is correct, then the situation reveals a certain irony:  The Justices might actually receive fewer scholars’ briefs if they acknowledge that they do care about legal scholarship after all.

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