Wednesday, July 27, 2011
Over at PrawfsBlawg, Tun-Jen Chiang says the answer is yes. Are judges really seeking from law prof briefs help in legal analysis from people with expertise and time to conduct research? Professor Chiang says no. He says they are looking for support for their conclusions, but would prefer to find support in doctrinal articles rather than briefs:
But help in legal analysis and decision-making is not what judges are really looking for. A modern judge has lots of help on legal analysis from numerous sources like law clerks and staff attorneys, in addition to the parties’ attorneys, with Lexis and Westlaw making research ever more easy. The contribution that a law professor can provide on top of this is minimal. What judges really want from law professors are convenient citations to support an outcome the judge already has in mind, but that the judge wants to attribute to an authoritative and “objective” source other than the judge himself. An amicus brief provides less of the appearance of authority and objectivity than a law review article does. Our depriving judges of one traditional source of the sheen of objectivity that is necessary to sustain the formalist myth is what really drives the complaints from those quarters.
I hesitate to venture an opinion. Your answer will depend on how much of a legal realist you are.