Law professors, amicus briefs and blogging

Larry Ribstein —  26 November 2011

Richard Fallon thinks that when law professors try to influence public debate, as when they sign amicus briefs, they should know what they’re talking about.  Here’s the abstract:

With ever mounting frequency, law professors flood the courts with “scholars’ briefs,” in which they advise judges and Supreme Court Justices on how to resolve disputed issues based on their purportedly disinterested expertise. As often as not, however, scholars’ briefs are not scholarly. They commonly offer one-sided depictions of relevant authorities. In addition, many signatories attach their names to assertions that overreach their scholarly expertise. Political orientation frequently drives participation.

Examination of the standards that should govern law professors’ participation in scholars’ briefs is long overdue. That topic — which this Article opens up for debate — is important not only for its own sake, at a time when appellate lawyers increasingly solicit supportive scholars’ briefs as a routine litigation tactic, but also because it furnishes a window onto broader questions about law professors’ professional roles and obligations. On the one hand, it is discomfiting that professors who claim the mantle of scholars would file briefs that deviate very considerably from the standards of scholarly integrity that apply to books and law review articles. On the other hand, we are long past the day, if ever there was one, when most law professors thought their sole professional contributions should come through traditional scholarship and teaching. By participating in scholars’ briefs, law professors can potentially influence the direction of the law. And in many of law professors’ professional activities, within bounds that need to be defined, an ethic of consequences requires the tailoring of arguments to audiences.

In this Article, Professor Fallon examines issues involving law professors’ moral and ethical obligations through the lens of role-based moral theory. More particularly, he considers how professors’ participation in scholars’ briefs relates to other, presumptively permissible role-based activities in a world in which law schools boast in their alumni magazines and on their websites whenever faculty members author op-ed articles, appear on radio or television programs, testify before legislative committees, or even post comments on blogs. Professor Fallon argues that law professors ought to uphold higher standards of scholarly integrity — which he carefully explicates — than many now do when deciding whether to participate in scholars’ briefs. Along that dimension, the Article offers strong prescriptions for reform. But the Article also demonstrates that it is impossible to identify the moral and ethical standards that should govern participation in scholars’ briefs without taking account of the diversity of roles that professors play and of appropriate, role-based variances in their professional obligations. The Article’s analytical framework offers a template for addressing myriad issues of professorial responsibility.

Fallon’s paper deserves widespread attention in the academic community. It raises the question whether law profs should sign onto amicus briefs just because they happen to agree with the brief’s conclusion without understanding and agreeing with the arguments to that conclusion.  If the law professor derives authority from her expertise, then the brief should reflect that expertise.

The article relates to my own The Public Face of Scholarship.  There I argue for scholars’ participation in public debate through what I call “publicly engaged academic posts.”  Here’s the theory in a nutshell (footnotes omitted):

PEAPs’ significance as a distinct category of amateur journalism is that they connect both with journalism and scholarship. While PEAPs involve the same sort of activity as professional journalism, scholar-journalists gain an advantage over professionals by leveraging their expertise. This has three implications. First, the posts are more informed than other blogs that engage in self-expression. Scholars can draw from their expertise to make immediate and timely posts without engaging in the significant new research that generalist journalists would have to perform. Second, the post is likely to be more disciplined and objective than other selfexpressive blogs because it derives from a body of prior ideas developed without specific public policy objectives. Third, the blogger stakes her scholarly reputation on the post, and therefore has more incentive than other amateurs to carefully support her position. These differences between PEAPs and other forms of amateur journalism relate to the impact PEAPs may have on the nature and quality of professional journalism * * *

PEAPs are bloggers who derive credibility from their scholarly perspective.  This supports standards of academic blogging that are similar to those Fallon suggests for participation in amicus briefs.

Larry Ribstein

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Professor of Law, University of Illinois College of Law