Harvard Law Prof Says Many Scholars' Amicus Briefs Are Not Very Scholarly
A Harvard Law School professor isn’t amicably disposed to law professor amicus briefs.
The professor, Richard Fallon Jr., writes in a draft essay (PDF) that law professors are increasingly submitting briefs to the U.S. Supreme Court, but the documents often blur the lines between scholarship and advocacy, the New York Times reports.
“Many scholars’ briefs are actually not very scholarly,” Fallon writes.
In the 2010 term, law profs and legal scholars submitted 56 briefs to the U.S. Supreme Court, Fallon says. In the 1985 term, on the other hand, scholars submitted only three briefs.
Fallon says he refused to add his name to a brief supporting the health-care law because its analysis of historical evidence was not nuanced or balanced. And he says he refused to join an amicus brief about a complex question in a habeas appeal because he wasn’t familiar with all the cases cited.
“Briefs written to win the agreement of large numbers of lawyers (as law professors are) tend to get flattened out to the lowest common denominator,” Fallon says. He argues that law professors asked to sign scholars’ briefs should say no more often, and should be more discriminating when they say yes.
The Times raises the issue whether amicus briefs are effective. Justice Antonin Scalia reportedly told law students last month that he doesn’t read all the amicus briefs, though his law clerks look at them so they can bring any “hidden truffle” to his attention.
