In Defense of Scholars' Briefs: A Response to Richard Fallon

Abstract

In a thoughtful and provocative essay, Richard Fallon criticizes law professors for lightly signing onto 'scholars’ briefs,' that is, amicus briefs filed on behalf of a group of law professors claiming expertise in the subject area. Fallon argues that law professors are constrained by the moral and ethical obligations of their profession from joining scholars’ briefs without first satisfying standards similar to those governing the production of scholarship, and thus he believes that law professors should abstain from adding their names to such briefs more often than they do now. This response begins by describing the benefits of scholars’ briefs to both the bench and the legal academy, and then explains why scholars’ briefs may permissibly make arguments in the form of advocacy, rather than scholarship. Although I agree with Fallon that authors and signatories of scholars’ briefs must satisfy different standards than those that apply to practicing lawyers writing amicus briefs - such as being experts in the subject area and sincerely believing in the result the brief advocates - I do not believe that such briefs must adhere to the norms that apply to legal scholarship. I argue that the realities of litigation, in which a judge’s decision is inevitably influenced by both precedent and politics, coupled with the adversarial context in which such briefs are filed, justifies their departure from the pure standards of scholarship.