"As an author of one of these briefs, I am free to admit the lie."

The relationship between scholarly amicus briefs and scholarship

Last week the Harvard Law Review published its annual Supreme Court issue, which contains a Foreword by a leading constitutional law scholar on some of the major themes of the term, or the era generally. This year the Foreword was The Constitution of Anti-Colonialism, by Maggie Blackhawk, one of the most prominent scholars of Federal Indian Law in the academy. The piece contains a lot of important themes and interesting discussions, including the Supreme Court's decision last term in Brackeen v. Haaland, which concerned the constitutionality of the Indian Child Welfare Act.

While this is far from the most important thing in the Foreword, I was particularly struck by a passage Professor Blackhawk wrote about the briefing in Brackeen:

Rather than identifying the preservation of colonized communities as a constitutional value, the well-established constitutional discourse around "equal justice," crafted in the aftermath of human enslavement and Jim Crow segregation,⁶⁷ drove the legal arguments of advocates and, in turn, framed the issues before the Court.⁶⁸ Advocates defending the constitutional status of ICWA assumed a defensive crouch, arguing against constitutional relevance.⁶⁹ They argued instead that Native children were uniquely not part of racialized communities,⁷⁰ that removal was not rooted in racism,⁷¹ and that federal "plenary" power was, on average, beneficial to Native nations.⁷² As an author of one of these briefs,⁷³ I am free to admit the lie. As I have written elsewhere, "racial hierarchies formed whatever heart imperialism has"⁷⁴ and "national power was no panacea for the subordination of Native peoples."⁷⁵ But, again, what other option are we left with when the United States does not seem able to even admit its status as empire,⁷⁶ much less reckon with it as a problem of constitutional order?

67: Transcript of Oral Argument, supra note 47, at 95 (discussing the principle of "equal justice" in Palmore v. Sidoti).

68: For example, Matthew D. McGill, counsel for Chad Everet Brackeen and others, argued that ICWA "flouts the promise of equal justice under the law." Id. at 5.

69: See, e.g., Brief of Amici Curiae American Historical Association and Organization of American Historians in Support of Federal and Tribal Parties at 7-11, Haaland v. Brackeen, 143 S. Ct. 1609 (2023) (Nos. 21-376, 21-377, 21-378 & 21-380) [hereinafter Brief of Amici Curiae AHA and Organization of American Historians] (arguing that the federal government has long regulated Native families and children without constitutional issue).

70: Federal Appellants' En Banc Brief at 1, Brackeen v. Bernhardt, 937 F.3d 406 (5th Cir. 2019) (No. 18-11479) ("ICWA's protections are triggered not by any individual's race but rather by the political fact of membership in a federally recognized tribe."); see also id. at 27-32 (arguing that the challenged provisions of ICWA draw upon political, not racial, classifications); Petition for a Writ of Certiorari at 12, 26, Brackeen, 143 S. Ct. 1609 (No. 21-376) (urging the Supreme Court to hold that "ICWA's Indian-based classifications are political, not racial, classifications").

71: See Brief of Amici Curiae AHA and Organization of American Historians, supra note 69, at 23-25 (describing the "fiscal concerns" underlying Native child removal in the mid-twentieth century, as opposed to the influence of "a long-standing federal policy of assimilation and racism," id. at 23).

72: See Transcript of Oral Argument, supra note 47, at 167 ("From the beginning, the … plenary power doctrine was used to protect Indians from non-Indians.").

73: See Brief of Amici Curiae AHA and Organization of American Historians, supra note 69, at 1-2.

74: Blackhawk, supra note 27, at 1861.

75: Id. at 1797-98.76: Id. at 1794 n.14 (citing Lisa Kahaleole Hall, Strategies of Erasure: U.S. Colonialism and Native Hawaiian Feminism, 60 AM. Q. 273, 275 (2008) ("The myth of a (mostly) empty North American continent waiting for (European) settlement and 'development' is foundational to the origin story of the United States as a 'nation of immigrants' developing an untamed wilderness. This continental origin story requires the denial of more than five hundred years of contrary facts beginning with the existence of millions of indigenous people inhabiting North America at the time of European contact and continuing through to the present with the struggles of more than 562 currently federally recognized tribal entities fighting to maintain their limited sovereignty and promised treaty rights in the context of complete public ignorance and complaints about their 'special rights."'); Patrick Wolfe, Settler Colonialism and the Elimination of the Native, 8 J. GENOCIDE RSCH. 387, 388 (2006) ("The logic of elimination … is an organizing principle of settler-colonial society rather than a one-off (and superseded) occurrence. The positive outcomes of the logic of elimination can include officially encouraged miscegenation, the breaking-down of native title into alienable individual freeholds, native citizenship, child abduction, religious conversion, resocialization in total institutions such as missions or boarding schools, and a whole range of cognate bicultural assimilations …. Settler colonialism destroys to replace." (footnotes omitted))) (surveying the literature on the erasure of colonialism).

What I find especially thought-provoking about the bolded passage above ("As an author of one of these briefs, I am free to admit the lie") is the tension it appears to raise between a law professor's role in authoring scholarship and his or her role in authoring amicus briefs. It appears to suggest that as amicus, a professor might make arguments that are likely to appeal to the court even if they are arguments that one would not make -- and indeed would disavow -- in one's scholarship. By contrast, others (most famously Professor Richard Fallon) have argued that scholarly amicus briefs should comply with the norms of scholarly integrity that apply to scholarship.

I would be curious to know what reactions others have to this tension.

[I would add that Professor Blackhawk's name does not actually appear on the scholarly amicus brief she references (except as a cited source), which was filed on behalf of the American Historical Association and the Organization of American Historians. But Professor Blackhawk describes herself as "[a]n author" of the brief in this passage, and has taken credit for it on her CV and elsewhere, so I take it that this incident does still raise the general question about the roles of scholarship and amicus brief.]

Comments

[mulched]

[Dan Schiavetta]

The battle lines are not clear here. It was the tribes who wanted to invoke the ICWA in the face of the wishes of the Native American biological parents who were fine with placing their child with a white couple.

[SimonP]

It appears to suggest that as amicus, a professor might make arguments that are likely to appeal to the court even if they are arguments that one would not make—and indeed would disavow—in one’s scholarship.

Fallon anticipates exactly this situation, in Section 4.2.3 of his paper, describing it as one of the “harder cases.” In these situations, he recommends:

In cases of this kind, I believe that the standards of trustworthiness applicable to scholars’ briefs call for candor. As I have said, law professors acting as amici should be able to call attention to arguments that they expect judges to find relevant, even when the judges’ jurisprudential assumptions are ones that the professors do not share. But if the arguments in a scholars’ brief depend on premises that the professors who sign it would not embrace in their capacity as teachers or scholars, other than for purposes of argument, then the norm of trustworthiness requires those who participate in the brief to make clear the terms on which they do so.

Personally, I don’t find any particular tension in a law professor taking as granted the law as they find it – including premises and precedents they might prefer to reject as systemically racist or “colonial” – and fashioning the best arguments they can based on those premises and precedents. That is, in a fundamental sense, what the practice of law is, and law professors would do well not to forget that they are part of that practice.

The scholarly norms that Fallon seems to be focused on have more to do with being forthright about contrary arguments and facts that might undermine the strength of their arguments, if fully disclosed. His point is that, in an adversarial judicial system like ours, lawyers representing clients aren’t under a professional obligation to present the strongest arguments of their adversaries, while scholars may be expected to at least anticipate and address them. I don’t read Fallon as making the claim that legal scholars ought to commit to making the same arguments regardless of context, or can’t make arguments in some contexts that take for granted premises they would otherwise prefer to reject.

[Dilan Esper]

To me, the problem is different. It goes to the heart of what an amicus brief is.

Why does the Supreme Court care what scholars think? Well, it can't be just to get legal arguments that any lawyer can make. That's what the parties are there for.

So the only reason to even accept an amicus brief from scholars is because scholars have some special expertise, based on their scholarship, to speak to the issue involved in the case. And for that reason, I think the answer is actually very clear-- they should not be allowed to act like lawyers, at all. They have to present their scholarship, whatever it is, and present it honestly. Leave the lawyering to the lawyers for the parties.

If they don't want to do that, their motion to file an amicus brief should be denied and if they succeed in filing an amicus brief making arguments they do not believe to be true they should face discipline from their academic institutions.

[David Nieporent]

.

their motion to file an amicus brief should be denied

FYI, as of 2023, no such motion is required in SCOTUS. As long as it is timely and otherwise complies with the Court’s rules, the brief can be filed.

[Dilan Esper]

I know, and I don't like that rule.

But if SCOTUS wants to strike dishonest amicus briefs, I'd be fine with that too. 🙂

[SimonP]

And I'm saying that I don't see any particular reason why "their scholarship" can't include scholarship and research along the lines of, "given what the law now is, how could we argue in favor of a substantive just result," which is all I take Blackhawk to be admitting to do.

Fallon's paper addresses precisely the question you're raising. While I don't necessarily agree with everything he says, he provides an analytical framework for talking about what it means for a scholar to "believe something to be true." This framework enables discussing the matter with more precision and clarity than your take would allow. But ultimately on this question he would put it this way: If the scholar would endorse the result and "praise" the Court if it were to adopt the reasoning of the brief without alteration, then it is sufficiently in line with the scholar's views to join the amicus brief.

[Dilan Esper]

Their job isn't to argue for ANY result. We have lawyers in the case who can argue for a result.

The ONLY reason to allow scholars to participate in a case they not a party to, AT ALL, is because they can neutrally tell us what scholarship says about the issue at hand. That's it. Otherwise they're no better than internet commenters or any other interested spin doctors.

[SimonP]

I don't see any basis in the rules for amicus briefs in our system for this assertion, and I don't see any reason why it ought to be true as a matter of principle.

For his part, Fallon would also seem likely to disagree with you. Scholars filing amicus briefs are not "advocates," but that doesn't mean they can't present their own arguments or interpretations of the law. Fallon would require them just to be forthright about their background and not engage in "strategic" omissions of fact or tenuous legal arguments that advocates might be permitted to engage in.

[Dilan Esper]

The rules permit lots of useless and dishonest briefs. A formalistic reliance on the rules is silly. We have way too many amicus briefs because of lax rules, and there’s a lot of evidence that judges don’t read them.

The point is, a random homeless person could offer some interpretation of the law. But he isn’t a party to the case. Neither is a scholar. They have zero business interpreting the law. That’s for courts do to based on the arguments of the parties. A legal scholar and a homeless person equally belong making arguments in cases they are not a party to– they don't.

What IS useful is for a scholar to come in and assist the court with some issue of scholarship. But for them to do that, they need to be scholars and not advocates.

[SimonP]

I am happy to provide you the opportunity to repeat yourself still further, without adding anything of substance. Please feel free to reply accordingly.

[Dilan Esper]

I am happy to note that you don't have a persuasive response.

[Absaroka]

You are making an implicit argument-from-authority assumption, I think - that a justice should read the arguments in a brief and think "well, if that was from Joe Schmoe I wouldn't be convinced, but since it is from Eminent Professor, I'm convinced". And I don't think they should do that. If, given human nature, that is a factor then they should just anonymize amicus briefs.

[Stephen Lathrop]

Absaroka, on what basis other than anti-elitism do you suppose a justice ought to prefer the testimony of subject layman Joe Schmoe over the testimony of subject expert Eminent Professor?

By what methods do you recommend that a justice without education or expertise in a particular science or art should vet the testimony of a witness generally recognized as a leading expert, or the preeminent expert, in that science or art?

More generally, are you skeptical that there should be any role for expert testimony?

[Absaroka]

I think that justices - well everyone - ought to consider the validity of the argument, not the source.

You and Dr. Ed, for example, post a lot of nonsense here. Nonetheless, I don't discount every comment of yours or his out of hand; occasionally you might be right. If I just reflexively go "It's Ed/Lathrop, must be wrong" I will be worse off, because I might miss the occasional bit of sense hidden amongst the nonsense.

n.b. I'm talking about legal issues here, where presumably the justices have enough expertise to tell the wheat from the chaff; a district court judge listening to professors of metallurgy in a tort case is another kettle of fish.

[Stephen Lathrop]

That other kettle of fish is all I was talking about. Judges remain the authorities about the law in every case. Expert witnesses talk about evidence. I do get that there are pure lawyers' briefs among amici filings, but I don't think those raise many interesting questions about truth or scholarship.

However, on a personal note, I wish when you think I am spouting. nonsense you mention it, and explain why you think so.

[David Nieporent]

Believe me, I've tried.

[bernard11]

I think that justices – well everyone – ought to consider the validity of the argument, not the source.

But these are not exercises in abstract logic. Aren't the arguments presented based on some factual information the author is presumed to be expert in, and which the judge may know fairly little about?

Look at what Blackhawk says. in the brief she makes a number of historical claims. A judge might sensibly conclude that, since she is expert in these matters, her views of the case are based on solid historical knowledge. But they are not. She is, implicitly, lying to the court.

[David Nieporent]

.

If I just reflexively go “It’s Ed/Lathrop, must be wrong” I will be worse off, because I might miss the occasional bit of sense hidden amongst the nonsense.

FYI: you won’t.

[David Nieporent]

.

n.b. I’m talking about legal issues here, where presumably the justices have enough expertise to tell the wheat from the chaff; a district court judge listening to professors of metallurgy in a tort case is another kettle of fish.

Keep in mind, though, that amicus briefs are not places to smuggle in new evidence, either. (There are almost no amicus briefs at the district court level, for obvious reasons.) Professors of metallurgy need to be qualified as expert witnesses, presented by the parties (in theory, by the court also) and be subject to cross-examination, if they are going to provide useful information. Otherwise the judge should be ignoring their submissions.

[Dilan Esper]

A good scholars brief contains actual information about what the scholarship says, and therefore would not simply be an argument from authority.

A bad scholars brief shouldn't be permitted to be filed.

[Ridgeway]

But they allow amicus briefs from political activists all the time. You may be arguing that we need a new class of amicus briefs -- the "disinterested scholarly brief". In a perfect world that would be wonderful, but I don't know how to draw the line between scholar and activist, and have even less idea how to determine if the putative scholar is being intellectually honest.

[Dilan Esper]

I know they do. And it's bad, partly because it encourages scholars to be dishonest.

[bernard11]

But they allow amicus briefs from political activists all the time.

But these briefs reflect the authors' actual views, don't they?

[bernard11]

So the only reason to even accept an amicus brief from scholars is because scholars have some special expertise, based on their scholarship, to speak to the issue involved in the case. And for that reason, I think the answer is actually very clear– they should not be allowed to act like lawyers, at all. They have to present their scholarship, whatever it is, and present it honestly. Leave the lawyering to the lawyers for the parties.

This seems obvious to me.

[Dan Schiavetta]

Tribe relies heavily on these amicus curiae briefs, but not to acquaint his readers with the arguments of partisans. He treats the briefs as if they were scholarly authorities. This is a questionable scholarly practice. Briefs are a form of advocacy, not of objective analysis. For example, Professor Tribe is apparently unaware that another scholar has charged that the historians’ brief on which he relied misrepresented one of its principal sources, James C. Mohr’s “Abortion in America: The Origins and Evolution of National Policy, 1800-1900” (Oxford, 1978). Mohr was, in fact, one of the signatories on the brief, but Gerard Bradley reports that, when contacted by telephone about the discrepancies between his scholarly work and the brief, Mohr “conceded that some of what the brief said and implied about the common law and the purpose of the nineteenth-century statutes was inconsistent with what he had maintained in his book.” Mohr attributed this inconsistency to the differences in roles between “citizen” and “scholar” and “added that where inconsistencies exist he stood by the book rather than the brief.” Gerard V. Bradley, “Academic Integrity Betrayed”, First Things 10, 11 (Aug-Sept 1990).

Odd how things ring in your mind from more than 30 years ago. The above is from Michael McConnell’s takedown of Laurence Tribe’s book on abortion, “How Not to Promote Serious Deliberation about Abortion”, 58 U.Chi.L.Rev. 1181, 1183 n.4 (1991), which saw on a shelf and read at around 1:30 a.m. one night in the Law Review cite checking room.

[Stephen Lathrop]

Mohr is a fascinating figure. As a historical scholar he developed a body of work which undermined religious priors against abortion, including some of his own. I don't know if that work was cited by amici in Dobbs, but it should have been. You can be certain that Alito would not have included any forthright discussion about what it showed concerning the history and tradition of abortion in the 19th century.

[F.D. Wolf]

"I would lie to a court, but not in a law review article."

Is anyone really willing to defend this obscene position? Don't the Rules of Professional Conduct mention something about "candor towards the tribunal"?

(I'll note, related to Baude's last paragraph, a common practice in these "scholars' briefs". A law professor who had nothing to do with the preparation of a brief is asked to sign it, which he does. He then lists himself as an author of the brief in his CV.)

[Sarcastr0]

There's lying to the tribunal and there's taking a reasonable point of view that you think is wrong in the interests of advocacy.

Law professors often have an advocacy hat and a scholarship hat. The issue here is using the scholarship hat to pretend you're an honest broker when you're actually wearing your advocacy hat.

[David Welker]

This is a more complicated issue than it first seems.

First, I don't like the word "lie" here. A lie is a very serious thing and one should not lie to a tribunal. When the word lie is used, it makes it seem obvious that the right answer is to be absolutely clear about what one's "ideal" views are.

But really, is that always optimal? What if you think that most of the jurisprudence that currently is under the category of "substantive due process" should be under the category of "privileges and immunities" instead? In a substantive due case where this issue isn't a live issue (that is, where you believe there is no real probability that the Court is going to embrace the privileges and immunities clause as the new home for substantive due process type argument) is it really necessary to mention that this is what you think should happen in an ideal world?

At what point does talking about one's "ideal outcome" just become self-indulgent? Say someone argues: "If it were up to me, Marbury v. Madison would have been decided differently and this Court should overturn it and reject the idea it has the power to judge the constitutionality of statutes." Such an argument is just so off-the-wall that I think it probably counts as a waste of time to make it. Perhaps even worse, after hearing such an argument, a court might look at your other arguments less favorably.

More generally, I don't think any of us can go through law school without encountering a few or even many cases we disagree with. But one idea of precedent is that the default should be (unless the precedent is very misguided and damaging) that one sets aside their disagreements and acts consistently with precedent for the sake of the law being consistent across cases.

If you predict that a court isn't open to overturning a certain precedent, but you think the precedent is wrongly decided, should you spill ink fighting the precedent or should you focus on the argument that even with that precedent in place, you should still win?

You might do both, but I think efficiency and resource constraints require some discipline.

[Commenter_XY]

I got hung up on 'lie' also. She was a lawyer making an argument for a client. Is it a lie when she advances a legal argument in a brief? I still do not see her issue.

I guess the other part. If I am a Federal District court judge, and I see her name on a brief...do I wonder if she is lying? How does that affect the case?

[Drewski]

It seems pretty obvious to me that she used "lie" to be provocative and assumes readers understand that it doesn't literally mean factual untruth. The extent that it bothers you suggests to me that it's a successful choice of phrasing.

[Rev. Arthur L. Kirkland]

It seems pretty obvious to me that she used “lie” to be provocative and assumes readers understand that it doesn’t literally mean factual untruth.

Some people find it difficult or impossible to navigate such nuance in moral human interaction. This blog seems to attract many of them.

[David Welker]

Arthur,

This blog isn't meant to be your personal confessional.

[Rev. Arthur L. Kirkland]

I confess that I have concluded that this blog attracts a remarkable concentration of antisocial, disaffected, on-the-spectrum, white, male conservatives who struggle with modernity and normal human interaction, perceiving persecution at every turn.

[Dilan Esper]

I think she uses "lie" to mean that she really has some quite radical beliefs about how the United States has to go through a massive decolonization effort to give land back to the Indians and pay all sorts of reparations and everything else, and she does not believe for one second that the United States Congress has any legitimate jurisdiction over Indian nations.

But in her brief, she says instead that scholarship shows that the United States Congress has that jurisdiction and that it overrides state laws on Indian affairs. She is saying that even though she doesn't believe that is what the scholarship says or compels.

[Stephen Lathrop]

Personally, I don’t find any particular tension in a law professor taking as granted the law as they find it – including premises and precedents they might prefer to reject as systemically racist or “colonial” – and fashioning the best arguments they can based on those premises and precedents. That is, in a fundamental sense, what the practice of law is, and law professors would do well not to forget that they are part of that practice.

Wait a minute. What does that imply with regard to originalism and textualism, which get asserted as other principles fundamental to the practice of law. Indeed, they get asserted as indispensable constraining principles, useful to limit judicial decision-making to its proper scope.

To the extent that pleasing a judge creates a present-minded motivation to abandon accurate historical practice, it contradicts or even demands suppression of the only expertise which justifies the historical expert's recognition by the court. Any historian who goes along with that must be clear in his own mind that he practices law, not history—a practice which any academic historian worthy of trust would typically demur to undertake.

It seems to me that among the best legal experts it is routine to posit analyses in any number of expert arts and practices in which they have not been trained. Perhaps that comes with the territory.

I was privileged to receive historical training from some of the nation's leading historians. None of them would have reciprocated, and undertaken in any way to stray outside their own expertise to say what the law ought to be. By their standards, to do that would invite professional disgrace.

On that basis, I insist that the job of the historian legal expert is to say forthrightly, according to professional standards of inference, what happened in the past. To the extent any such account inconveniences or embarrasses the perceived preferences of a judge, it is the job of the expert to correct the judge's historical misimpression, not to flatter it.

As for what that implies for the law, to say otherwise is to dismiss alleged originalism and textualism as pure pretense. Judicial willingness to forego accurate history makes a mockery out of the notion of history and tradition as a legal touchstone.

[dwb68]

"Lawyers lie and water is wet-- film at eleven!!"

Making disingenuous arguments that appeal to the court is the heart of lawyering. A lot of scholarship that is also full of lies, although sometimes its unclear whether the so-called scholar is lying to themselves or others.

[Brett Bellmore]

Did he think it was a lie at the time? Or is he compelled in his present environment to denounce his own writings? I wish I knew, but the former would certainly have been much more despicable, even if the latter isn't exactly admirable.

[David Nieporent]

While you never know these days, I am going to assume Maggie is a woman.

[Sarcastr0]

There are plenty of ways to shade the truth that are difficult to call a lie. What she argued was reasonable, she just subjectively didn't believe it.
That's where a lot of lawyering lives. There was nothing sanctionable about the position she took; calling it a lie is a bit of drama and invites drama.

That's the less interesting question than Will Baude's question about how one might wield one's authority as a scholar to enhance your credibility when making an argument to the court.

I have no issue with amicus briefs including both scholarship and advocacy; I don't much like the latter dressing as the former. But I also don't know how to police that.

[Stephen Lathrop]

But I also don’t know how to police that.

1. Encourage contending parties to choose only preeminent experts.

2. Question closely all experts concerning the canons relied upon in their art or profession, when considering subject matter like that before the court.

3. Listen to the critiques of methods which contending experts apply against arguments from the others.

4. Ask yourself which experts offer explanations which are comprehensible, and seem to make sense.

I once did graphic design on a story-board job for a patent lawyer. He was the best explainer I ever encountered. He explained his legal problem and graphical needs thus:

The suit was about patentability for a high-tech invention which relied upon quantum physics. One legal standard for patentability was that the invention must be sufficiently novel to produce surprise in a person expert in the field. The patent lawyer's job was to embrace that standard, and provide an explanation to prove his point which would be understood accurately by a jury of postal clerks.

Technical explanations which are clear to postal clerks ought usually to prove persuasive even to a judge who is a layman in the subject matter.

[David Nieporent]

.

1. Encourage contending parties to choose only preeminent experts.

2. Question closely all experts concerning the canons relied upon in their art or profession, when considering subject matter like that before the court.

All of this is gibberish. Parties don't get to choose amici, and amici don't get questioned at all.

The rest of your comment makes clear that you mistakenly think we're talking about expert witnesses engaged by the parties.

[Stephen Lathrop]

Nieporent, I was trying to address Sarcastr0’s comment about the challenge to police the boundary between expertise and advocacy. If you have to quibble, quibble with him.

[David Nieporent]

.

If you have to quibble, quibble with him.

Why? He didn't say anything dumb and wrong. You did.

[jdgalt1]

Perhaps some lawyers are crooks, or perhaps I am naive. But I believe a lie in any document submitted to a court, should either be prosecuted as perjury or disciplined by the bar (after some level of due process), depending on the type and severity of the case, if any, to which the document applies. In any case the fact should be made public.