Amandra Frost writes a reply to Dick Fallon’s critique of scholars’ briefs.
The job of law professor does not require writing or signing onto such briefs, and many never do so.25 Thus, law professors have no reason to author or join such briefs unless they sincerely support the result advocated for in the brief, and think a reasonable argument can be made for that result. These factors set scholars‘ briefs apart from most amicus briefs, and make them at least a shade more credible. For example, a lawyer working for an anti-death penalty group might author an amicus brief opposing the death penalty in every single case before the Supreme Court on that subject. A law professor opposed to the death penalty, however, might choose only to participate in only those cases in which he thinks capital punishment is particularly egregious.
How does “uniquely disinterested” equal “sincerely support” the cause? That would seem to be an interest. I don’t find her example of Larry Tribe’s brief in Romer v. Evans particularly persuasive:
At least a few scholars‘ briefs have provided significant assistance to the Supreme Court in resolving difficult cases for just these reasons. Perhaps the best example is Professor Laurence Tribe‘s amicus brief in Romer v. Evans.26 That brief supplied the Court with a different rationale for striking down a Colorado statute that targeted gays than was offered by the parties, and one that a majority of the Court found convincing.27 Professor Tribe has a well- deserved reputation as a pre-eminent authority on the U.S. Constitution, and he had no personal or financial stake in the case and was writing on his own behalf, and not that of a client. Thus, the Justices could rely on his brief as presenting sincere and reasonable arguments. If the brief was written by a concerned citizen, a gay-rights group, or a lawyer on behalf of a paying client, it would likely have carried less weight.
To say that Tribe is disinterested in the subject of discrimination against gays is a stretch. I think he’s quite interested. “Sincere and reasonable arguments” do not have to be disinterested.
She also provides a few other benefits of scholars’ benefits:
First, law professors have (or should have) expertise on the subject matter of the brief. Unlike the average appellate lawyer, who is a generalist and thus might write an amicus brief in an area which she knew nothing about before taking on the assignment, law professors devote their lives to teaching and writing in specific areas of the law, and oftentimes have practiced in that area as well. It is fair to say that the average law professor has a deeper understanding of the law governing an issue in an amicus brief than does the average lawyer writing such an amicus brief on behalf of a paying client. In at least some cases, courts will benefit from this expertise.24
But this goes to the expertise of the author. The entire objection against scholars’ brief is that lots and lots of professors–some may have the relevant expertise, so may not–sign on. This rationale isn’t persusive.
Frost also asserts that “In addition to serving the interests of judges, scholars‘ briefs benefit the academy.” Also, “The authors as well as the signatories of scholars‘ briefs benefit from this exercise. Connecting theory and practice in this way should inform a law professor‘s scholarship and teaching, reminding the law professor that he is part of a professional school which must ultimately justify itself by serving the profession.” I think these two arguments undercut the broader point about academics writing as disinterested academics v. writing as advocates.
For my previous posts about Fallon, see here, here, here, and here.