Wednesday, July 7, 2010
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?