FedSoc Blog

Harvard Law Professor Refuses to Sign Academic Friend-of-Court Brief Defending Obamacare


by Justin Shubow
Posted November 14, 2011, 3:14 PM

The New York Times reports that Harvard law professor Richard H. Fallon has refused to sign a "scholarly" amicus brief defending the constitutionality of Obamacare.  He went so far as to criticize amicus briefs by law professors generally:

Not long ago, a law professor at Harvard received a routine request. Would he add his name to a brief from a group of law professors urging a federal court to uphold the health care overhaul law?

The professor, Richard H. Fallon Jr., said he would not, and his assessment of what he had been asked to sign was cutting.

“Its argumentation fell within the bounds of what lawyers could permissibly say in a brief,” he wrote in a provocative draft essay that has been circulating in the legal academy. But the brief’s presentation of the historical evidence, he said, “was not nuanced or balanced.”

“A purportedly scholarly book or article that asserted its claims without further qualification,” he wrote, “would attract derision as one-sided if not misleading.”

The health care brief was just an example of a larger problem, Professor Fallon wrote, one of role confusion between scholarship and advocacy. “Many scholars’ briefs are actually not very scholarly,” he wrote.

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