The danger of citing professors' articles in the professors' amicus briefs

|The Volokh Conspiracy |

Do we do it? Yes, we do it. And we think it's a good idea. It helps show that the academic amici really are knowledgeable on the subject. The articles generally are on-point and would be helpful to the readers (if the readers really want to read law review articles). And, when one is writing a brief on behalf of amici scholars, citing the clients seems like a nice thing to do.

Yet it appears that judges may get annoyed by this, or so I learned from a recent federal district court opinion (paragraph break added):

The amici curiae in this case argue that standing can be established on the ground that the alleged government surveillance chills speech protected by the First Amendment. See Br. of Amici Curiae American Booksellers Association, et al., at 12-17; Br. of Amici Curiae First Amendment Scholars, at 9-19. As with plaintiffs' argument, the amici curiae's argument fails for the reasons articulated in Clapper. 133 S. Ct. at 1150-52. Both amicus briefs, which focus chiefly on the chilling argument, have been carefully reviewed and found unpersuasive.

It is also worth noting that the only other nine individuals who cite their own works as frequently as do the nine authors of the First Amendment Scholars amicus brief are members of the Supreme Court, who, unlike the amici, do so out of sheer necessity.

Ow! Can't say whether the judge is right or wrong, or whether this sentiment is shared by many other judges. But in any event, apparently at least one judge gets annoyed by this, and what one judge feels (and feels strongly enough to merit mentioning in an opinion), other judges might well feel, too. Might be good for us academic amicus brief writers to keep in mind.