Amicus Briefs: Finding the Signal in the Noise

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Allison Orr Larsen details in “The Trouble with Amicus Facts” that there are serious shortcomings to allowing “neutral” parties to brief the Court in this manner. First, it is not by any means true that the facts in these briefs are reliable. Second, these briefs short-circuit the adversarial process’ traditional checks on facts in the form of cross-examination, etc.

Larsen’s concerns about factual accuracy of amici can be alleviated via peer review. Indeed, Rule 702 and the Daubert trilogy both rely, as non-exclusive factors, on peer review and general acceptance as criteria to determine whether expert testimony is admissible. At the trial level, peer review of experts can provide judges (to the benefit of some(!) litigants) with neutral and mainstream views on contested facts. At the Supreme Court, the same benefit can be provided. Best of all, this peer review does not require ANY modifications in the current system. It is, in many ways, the organic approach for parties and amici to certify their briefs and validate their arguments. When done using multiple blind reviewers, as done in research, the process of separating the wheat from the chaff becomes more tractable. Peer review, in many ways, is how the Daubert trilogy can be enforced onto the Supreme Court. Now is the time that the Supreme Court can be held to the same standards it sets for trial courts when it comes to “scientific” facts and expert opinion.

The Supreme Court’s Confused Empirical Jurisprudence

The Supreme Court’s Confused Empirical Jurisprudence

The Supreme Court’s June 29 ruling in Glossip v. Gross—which applied a ‘‘clearly erroneous’’ standard of review in a decision about lethal injections—is a stark reminder that the Justices have ‘‘little understanding of science and make no effort to connect relevant scientific premises to their constitutional decisions,’’ Professor David L. Faigman says.

If constitutional decisions rest on scientific bases, as more and more of them do, it is ‘‘incumbent on the Justices to be well versed in the rigors of experimental or statistical technique,’’ the author says.