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Authority And The Amicus Grift

Of course you wouldn’t mold your serious views based upon what some actress or director believes, because they may be authorities about acting or directing, but obviously have no authority when it comes to thing lie, oh, law. But law professors? While they may lack a certain practical knowledge of law, surely they are reliable sources of deep legal thought, and you can rely upon their signature when an amicus brief is proffered to a court that this is what they, in their highly intelligent, deeply considered, opinion is the law.

Right. Right?!?

The number of amicus briefs submitted by academics has increased dramatically over the past several decades. In principle, such scholars’ briefs 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 genuine expertise about the specific issues at hand in a given case that could assist the judges in making 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.”

When it comes to law, if you can’t trust an emeritus Harvard prawf like Larry Tribe or Alan Dershowitz, who can you trust? In the somewhat distant past, academics were loathe to sign onto briefs they didn’t write, or at least contribute to, as #MeToo was unseemly and the arguments reflected some other scholar’s view. Sure, there were times when the arguments made by author of the brief were the same as yours, and while you were nothing more than some extra fluff to add gravitas to the brief, at least it was a position you could whole-heartedly endorse.

But that was then. Now, if the brief argues for an outcome you support, even if the argument was written in crayon and emojis, you were complicit in the kicking of kittehs if you didn’t sign on. Indeed, even if the subject matter was far from your wheelhouse, an academic subject with which you were wholly unfamiliar and couldn’t pick out in a line-up, you still understood your duty to add your name to the list so some legal journalist at Slate could say “100 law profs joined the amicus brief.”

In some fields, it is rather common for professors to sign on to just about any academic brief that argues for their preferred outcome, without regard for what arguments are actually made or whether those arguments align with the academic signatories’ scholarly views. In some cases professors will sign on even when they know little about the subject matter–such as, say, what a given state’s law has to say about a complex matter–and when they have engaged in no independent study of the issue. In still other cases, academics may solicit signatories for briefs sight unseen–and some apparently sign under such conditions. (Indeed, I saw one such solicitation just within the past month.)

At VC, Jon Adler argues that academics have sold their ethics to the cause.

If the value of an academic amicus brief is to provide academic expertise, then it would seem to me to be quite unethical for academics to sign their names to briefs that do not reflect their academic expertise. And insofar as some (many?) academics do not adhere to such a principle, it should not surprise us if this lessens the value of such briefs overall, as judges learn to cast aside what are little more than well-formatted policy statements.

While Jon refuses to join briefs outside his area of scholarly expertise, and with which he had no input, he’s likely the outlier. One of the pop tenets in academia is that you are complicit in a wrong if you are not affirmatively supporting the right. It’s a variation on Kendi’s definition of racist, anyone who isn’t affirmatively anti-racist. To not stand up for the correct answer is to be complicit in the incorrect answer, even if the subject matter is far from your wheelhouse or the argument is nonsensical. Sign on or be the enemy.

Jon cites a 2012 article by Prof. Richard Fallon in support of his position.

With respect to questions of professional identity, many of today’s law professors want to be valued as scholars on a par with professors on faculties of arts and sciences who devote their careers to the sometimes lonely search for truth or honest insight. Yet many also aspire to achieve an immediate influence on public events in ways that few members of faculties of arts and sciences could dream of. In seeking to realize the latter ambition, we law professors may face temptations to tailor our arguments to our audiences, to overstate the strength of the support for our conclusions, and to omit to say what would reduce our impact.

The vocation of a law professor is not exclusively that of a scholar. We can, and should, play multiple roles. In doing so, however, we should remember that when we attempt to influence public matters, we almost inevitably seek to trade on the credibility that we—and our predecessors and colleagues—have earned in the roles of scholar and teacher. Those roles create obligations of responsibility, trustworthiness, and confrontation. If emerging norms in the signing of scholars’ briefs betray expectations of scholarly responsibility, trustworthiness, and confrontation that we have sought to promote, or seek to capitalize upon, then we should hold ourselves to higher standards.

But Fallon wrote those words in simpler times, when the notion of achieving an influence on public events had not yet been tainted by the requirement that a member in good standing of the Academy be on the “right side of history,” and that achieving the correct outcome was the only correct goal, to be accomplished by any means necessary. If that meant signing onto an  unread amicus brief that argued gibberish but reach the correct outcome, was it not a higher purpose to back the correct outcome than to obsess over the means of getting there?

When academics, or scholars as they like to call themselves, are no more inclined to limit their public positions to their field of study or the argument with which they substantively agree, are they any more of an authority than an actress or director? Holding a tenured chair in trusts and estates makes you no greater an authority on middle east politics than an actress. At least the actress won an Oscar for acting before spewing her unauthoritative views to the public. Prawfs who haven’t bothered to read the briefs they sign onto have even less of a legitimate claim to the platform of an amicus brief for the putative purpose of being scholarly heroes to the cause.

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