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What is the value of professors signing onto briefs, where the professor did not sign the brief–and arguably had no role in writing it? Orin Kerr says none. More from Ward Farnsworth here.

Richard Fallon has a paper on this topic here.

During the 2010 Term, in which the Supreme Court decided 85 cases, it received 56 briefs on behalf of groups of self- identified legal scholars or law professors, with at least one such brief being filed in 30 cases, or more than a third of the total.2 In at least seven cases, dueling teams of scholars filed briefs supporting opposing sides.3 By contrast, during the Court’s 1985 Term, the Justices decided 159 cases4 yet received only three scholars’ briefs.5

…

In my view, participation in scholars’ briefs gives rise to more complex ethical issues than do most of the other sub-roles that law professors play, largely because the signers of scholars’ briefs represent their submissions as offering distinctively scholarly expertise and perspective. But there is of course no complete divorce between the role of teacher and scholar, on the one hand, and most of the other law-related functions that law professors sometimes take on. To be blunt, law professors recurrently attempt to leverage their credibility as teachers and scholars to influence non-scholarly audiences, sometimes for personal gain and sometimes without satisfying the standards on which their scholarly reputations depend. When law professors seek to trade on their academic reputations in the performance of non-academic roles, two sets of moral and ethical issues arise. One involves the extent, if any, to which an implied warranty of scholarly integrity ought to preclude professors from making assertions to courts or to non-scholarly audiences that they would not make in scholarly books or articles. The other set of worries involves the risk that non- scholarly activities—which would otherwise be permissible or even admirable in themselves—might inhibit future scholarly assertion of inconvenient truths.

Dan Markel has more at Prawfs.

Update: Kenneth Anderson writes:

I have had long suppressed questions about why courts should accept these briefs at all, given that they seem to me – my amicus briefs and everyone else’s – just advocacy leveraged by quite specious claims of “neutral” expertise. Meaning by “specious” – the expertise is real, the neutrality is not.

I think this applies equally to briefs about the Second Amendment.

Update: More from Paul Horwitz.

Why do we continue to rely on models that are consistently wrong?

No, not the Women of Walmart who posed in Playboy. I’m taking about the female plaintiffs in Wal-Mart v. Dukes. Here is a story about their new suit:

In the revised lawsuit, the plaintiffs narrowed their proposed class along geographic lines. The plaintiffs’ complaint seeks certification for a class that has suffered discrimination as current or former Wal-Mart employees in California.

Wal-Mart attorney Theodore Boutrous Jr. said the plaintiffs’ arguments still rely on the same theories that the Supreme Court rejected. “These lawyers seem more intent on alleging classes for their publicity value than their legal virtue,” Boutrous said in a statement.

The revised complaint requests certification of injunctive and monetary relief classes under different provisions of the federal rules. Certification for a class seeking injunctive relief is sought under Rule 23(b)(2), whereas certification for those seeking monetary relief is sought under Rule 23(b)(3). In their prior complaints, certification was sought jointly under both rules. The complaint estimates that there are more than 45,000 women in each of the injunctive and monetary classes.

This will have some big implications for my work on FantasySCOTUS and the Constitutionality of Social Cost.

What role do policy preferences play when a judge or any other reader decides what a statute or other legal text means? Most judges think of themselves as doing law, not politics. Yet the observable decisions that judges make often follow patterns that are hard to explain by anything other than policy preferences. Indeed, if one presses the implications of the data too hard, it is likely to be heard as an accusation of bad faith – a claim that the judge or other decision-maker isn’t really earnest in trying to separate preference from judgment. This does not advance the discussion, and distracts from the possibility of more interesting explanations. A promising antidote, we believe, lies in empirical study not just of large numbers of judicial decisions collected over time, as previous scholars have done, but of the immediate experience of legal interpretation.

We compile, and here present, rich evidence of what happens when lawyers in training are asked in controlled surveys to distinguish between their policy preferences on the one hand and their own interpretive judgments or predictions about courts judgments on the other. Our findings offer two lessons. First and foremost, they suggest that separating policy preferences from judgments about the meaning of statutes is very difficult. The same is true of preferences and predictions about what courts will do: respondents tend to predict that courts will do what the respondents themselves prefer. The fundamental entanglement of preferences and interpretation raises important questions about the ability of anyone – including judges – to neutrally carry out interpretive strategies meant to generate answers in close cases. Second, however, the results also show that certain ways of framing the interpretive question can reduce the influence of preference on interpretation – though perhaps not its effect on predictions. Instead of simply asking respondents how they would interpret the text of a statute or how the drafters would likely want it applied, it is better to ask respondents how ordinary readers would interpret the statute. This framing of the interpretative question can debias an individual’s interpretation of a statute.

In short, interpretative theories that elevate text alone or give the intent of drafters are both susceptible to contamination by private preferences. To immunize interpretation from these preferences, a theory that asks how ordinary readers would read a statute may be the best prescription.

The ABA Journal has the background here:

A new corporate arbitration program hosted by what many consider the nation’s top business court violates the U.S. Constitution by holding “secret” judicial proceedings, contends a lawsuit that was filed today in federal court in Wilmington, Del., by the Delaware Coalition for Open Government Inc.

Naming all five justices of the state’s chancery court as defendants, along with the state and chancery court, the suit contends the arbitration program is so similar to traditional courtroom litigation that it is unconstitutional not to have it take place on the record, according to Bloomberg and the Wilmington News Journal.

From Prawfs:

The complaint was filed yesterday by the Delaware Coalition for Open Government, Inc., in the federal district court in Delaware.  It essentially alleges that an arbitration under these rules violates the First and Fourteenth amendments and the Civil Rights Act because the documents are confidential and not part of a public record or docketing system.  As the complaint says: “Although the statute and rules call the procedure ‘arbitration,’ it is really litigation under another name.”

Can this be?  I ask not as a constitutional scholar, but because I think our court system already facilitates private negotiated contract in some ways, including using public judges to settle cases.  Delaware is unusual in the extent to which it is developing a service that competes with private arbitration services, but other courts have integrated arbitration and mediation into their court system, including into specialized business courts.   A difference in kind or degree?

Here is the complaint.

19. 10 Del. C. §349 and Chancery Court Rules 96, 97 and 98 deny plaintiffs, and the general public, their right of access to judicial proceedings and records. Although the statute and rules call the procedure “arbitration,” it is really litigation under another name. Although procedure may vary slightly, the parties still examine witnesses before and present evidence to the Arbitrator (a sitting judge), who makes findings of fact, interprets the applicable law and applies the law to the facts, and then awards relief which may be enforced as any other court judgment. The only difference is that now these procedures and rulings occur behind closed doors instead of in open court.

20. The defendants’ actions, under color of State law, constitute an unlawful deprivation of the public’s right of access to trials in violation of the First Amendment as applied to the states by the Fourteenth Amendment to the United States Constitution.

Originally, the common law courts came into being as a form of competition with the Kings equity courts (courts of chancellory). In Delaware there is still a divide between courts of law (common law courts) and the courts of equity (courts of chancery). Funny how things repeat.