February 6, 2007
Should advocacy count as scholarship?
Law professors' involvement in individual cases, often at the appellate level, is nothing new. However, it seems that such involvement may be growing, as professors file more briefs and increasingly serve as amici in order to be put their position before a court.
Generally, I think this is a good thing. In our area of scholarship, federal sentencing, I have written briefs on behalf of Doug Berman and others as amici, and he has most recently done the writing while I serve among the amici. This allows us to take the ideas we have propounded as scholars though journal articles and put them before a decision-maker considering a discrete set of facts.
Certainly, if there is a problem with this trend, that problem cannot be that we are taking a position on policy issues-- academics, in their writings, are expected to take strong positions on policy issues, as that is a crucial role we serve in the larger society. However, it could be that we risk blurring the line between somewhat objective academic and practitioner/advocate when we put our ideas in the form of a brief rather than an article.
I would not suggest that within the realm of legal scholarship briefs can serve as substitutes for articles, essays, and books. However, can briefs be considered a form of scholarship, secondary to more traditional academic work? Or are they something less, even a frolic and detour which should be discouraged?
-- Mark Osler
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