Wednesday, July 7, 2010

Law Review Articles or Amicus Briefs - The Skilling & Weyrauch Cases

In a post-Skilling entry, the question is raised on this blog as to whether "[i]n adopting a position expressed by a law professor in an amicus brief, is the Court saying that law professors should focus on writing amici briefs and not law review articles?" (see here) Tony Mauro, in a Brief of The Week: Weyrauch v. U.S., National Law Journal, discusses why Professor Albert Alschuler chose to write an amicus brief in Weyrauch v. United States, as opposed to expressing his position in a law review article.

But the question raised on this blog continues to be one of importance for several reasons: 1) law review articles traditionally involve an exposition of legal theory that captures all facets of an argument; 2) law review articles may advocate for a particular position, but most often this occurs after a consideration of arguments in opposition to the position being taken; 3) some law professors disregard 1 and 2 above and believe that law review articles are best when pieces of advocacy; 4) amicus briefs are written to advocate a particular position,even when it is being written by a neutral party.

Clearly Professor Alschuler's brief assists in changing the legal landscape - a criteria often used in reviewing a legal work for purposes of tenure. So, should amicus briefs be more accepted in the tenure process?


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The Code and Rule to permit Amicus was designed to promote commentary.

There are NO neutral parties!

Posted by: Laser Haas | Jul 8, 2010 6:16:13 AM

Big questions. Is Skilling retroactive. (Probably) What about cases that involved plea agreements and appellate waivers. (I think those defendants still get relief if there case does not involve bribery or kickbacks, because court does not have subject matter jurisdiction. Defendants cant waive subject matter jurisdiction.)

Posted by: Doug Allen Goss | Jul 9, 2010 12:15:03 AM

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