Reviews: Amicus Scholars' Briefs - Two Views

Last October 2011, Harvard Law School's Richard Fallon posted to SSRN an essay entitled, "Scholars' Briefs and the Vocation of  a Law Professor," which raised serious questions about the ethics of law professors signing onto amicus briefs in a wide variety of cases, particularly those with political, policy, and ideological implications.  He expressed serious reservations about the practice.  (I read it with great interest and posted on it at Volokh Conspiracy and Opinio Juris.) The essay has importance for practice in national security and law, in part because scholars' amicus briefs play a particularly noteworthy role in international and foreign relations law cases in American courts.  The upcoming Supreme Court consideration of the Alien Tort Statute will provide a vivid example of scholars' briefs in action.  Professor Fallon's essay merits serious consideration by practicing lawyers and judges in national security, foreign relations, and international law - along with a reply essay just posted to SSRN by Amanda Frost, a professor (and my colleague) at Washington College of Law, American University. Professor Frost's response is a highly readable and, at twelve pages, admirably brief essay.  As the amicus brief, in the hands of scholars telling courts about the content of international law, evolves and gains greater importance in US legal cases, lawyers, clerks, judges, and others who write about the law might want to know more about the practice and its controversies.  These two essays are a fine place to begin.