Harvard law professor Richard Fallon has written a very interesting and thoughtful paper exploring how “norms of scholarly integrity” ought to guide law professors in deciding whether and how to participate in so-called “scholars’ briefs”—that is, amicus briefs submitted by law professors who (as Fallon puts it) “represent that their only interest lies in the proper development of the law.” (H/t Orin Kerr at the Volokh Conspiracy.) Scholars’ briefs, according to Fallon, “appear to grow more common each year.” Indeed, one law professor tells me that many law professors regard these briefs as the most important thing they do.
Fallon’s central argument, while gently phrased, should sting many legal academics: “we should insist that scholars’ briefs reflect higher norms of scholarly integrity than many such briefs now satisfy.”
Fallon begins (pp. 12-18) by highlighting three “contrasts between the standards of integrity applicable to lawyers [including law professors] representing clients and those applicable to law professors in their capacity as scholars.” First, a scholar “assumes individual responsibility for having authored any writing that she publishes under her name and for having done the research or performed the analysis on which her stated conclusions depend.” Second, a scholar “is subject to the norm of trustworthiness, which demands that she sincerely believe all of her claims or arguments and that she state them in ways not intended to mislead her readers about their relation to other arguments or evidence.” Third, the confrontation norm “requires scholars to be candid in acknowledging difficulties with their arguments by confronting the most significant possible non-obvious objections to their analyses” and by stating the counterarguments “as clearly and as fairly as she can.”
Fallon then explores (pp. 28-31) how these general standards “applicable to scholars writing books and articles” might properly be “altered or relaxed” for scholars’ briefs. He readily acknowledges that length limitations on amicus briefs will require adjustment of the confrontation norm. By contrast, he maintains (with some qualifications) that the norm of individual responsibility should be largely unaffected:
Law professors should not join scholars’ briefs unless they have a personal basis in knowledge for affirming that all of the briefs’ principal assertions of plain fact are true (or are appropriately assumed to be so for purposes of legal argument) and that all of the briefs’ principal interpretive claims reflect the scholars’ sincere views.
As for the norm of trustworthiness, Fallon proposes this “test”:
Before signing scholars’ briefs, law professors should ask themselves how they would respond, in their roles as scholars and teachers, if the court to which the brief is addressed simply adopted the brief’s reasoning and language as its own. If a professor would applaud the court for doing so, she should have no compunctions about joining the brief.
Fallon also addresses the matter of joint letters by law professors to “non-judicial decision makers” (e.g., Congress). Adopting a standard previously proposed by law professor Ward Farnsworth, Fallon determines that a law professor “should presumptively conclude that she cannot, with integrity, take personal responsibility for the accuracy of the purportedly expert opinion that a letter expresses” unless “she would feel competent to present and defend the collective statement at a faculty workshop.”
Overall, I’m very impressed by Fallon’s paper. I think that it’s fair to say that if his advice were followed, the number of scholars’ briefs and the number of signatories to those briefs and to collective letters would fall by a huge percentage (I’d guess by 90%, give or take 10% ). I’ll offer just one criticism: I don’t think that Fallon’s proposed test for the norm of trustworthiness would be likely to accomplish much of anything, for the many law professors who don’t adhere to the norms that Fallon prescribes “in their roles as scholars and teachers” would generally be delighted if a court “simply adopted [their] brief’s reasoning and language as its own.”