Article

The Trouble with Amicus Facts

The number of amicus curiae briefs filed at the Supreme Court is at an all-time high. Most observers, and even some of the Justices, believe that the best of these briefs are filed to supplement the Court’s understanding of facts. Supreme Court decisions quite often turn on generalized facts about the way the world works (Do violent video games harm children? Is a partial birth abortion ever medically necessary?). To answer these questions, the Justices are hungry for more information than the parties and the record can provide. The consensus is that amicus briefs helpfully add factual expertise to the Court’s decision making.

The goal of this Article is to chip away at that conventional wisdom. The trouble with amicus facts, I argue, is that today anyone can claim to be a factual expert. With the Internet, factual information is easily found and cheaply manufactured. Moreover, the amicus curiae has evolved significantly from its origin as an impartial “friend of the court.” Facts submitted by amici are now funneled through the screen of advocacy. The result is that the Court is inundated with eleventh-hour, untested, advocacy-motivated claims of factual expertise. And the Justices are listening. This Article looks at the instances in recent years when a Supreme Court Justice cites an amicus for a statement of fact. It describes the way the brief, rather than the underlying factual source, is cited as authority and addresses the failure of the parties to act as an adequate check. I challenge this process as potentially infecting the Supreme Court’s decisions with unreliable evidence, and I make suggestions for ways to reform it. It is time to rethink the expertise-providing role of the Supreme Court amicus and to refashion this old tool for its new purpose.

Unplanned Coauthorship

Unplanned coauthorship refers to the process by which contributors to a creative work are treated by copyright law as coauthors of the work based entirely on their observable behavior during its creation. The process entails a court imputing the status of coauthors to the parties ex post, usually during a claim for copyright infringement. For years now, courts and scholars have struggled to identify a coherent rationale for unplanned coauthorship and situate it within copyright’s set of goals and objectives. This Article offers a novel framework for understanding the rules of unplanned coauthorship using insights from theories of shared intentionality. Unplanned coauthorship enables courts to balance copyright’s commitment to authorial autonomy and individual ownership against the demands of cooperation, collaboration, and information sharing that the creative process invariably entails. Through these rules, copyright law recognizes that certain forms of creativity depend entirely on mechanisms of collaboration for their continuing existence. In such instances of collaborative creativity, the very process of collaboration provides creators with additional and independent reasons for their creative endeavor, a motivation referred to as the “collaborative impulse.” Characteristic of all joint activities undertaken with a shared intention, the collaborative impulse derives from a motivational commitment to the joint task that collaborating creators develop, causing them to pay equal attention to both the means and the ends of their creativity. The Article shows how the rules of unplanned coauthorship allow copyright law to nurture these domains of collaborative creativity by protecting the collaborative impulse and simultaneously rendering it fully compatible with copyright’s utilitarian goal of promoting creativity through exclusive rights.

Lambert Revisited

This Article is the first of a two-part series on the vagueness doctrine. The objective of this first step is to situate the well-known Lambert case within that doctrine. Lambert v. California is a fifty-seven year-old chestnut involving a Douglas-Frankfurter debate in terms that can charitably be called obscure. Many have taken the case to involve, at bottom, a notice principle requiring what this Article calls socialization—the idea that to be fair the criminal law should emit warning signals that will alert the conscience of the average citizen to potential illegality. The Article explores the consequences of elevating that idea to a freestanding constitutional principle, and rejects that conception of the case because it would insert the Constitution too far into ordinary criminal law doctrine. Instead, the Article concludes, even though Lambert involved an ordinance whose language was perfectly clear, the case should be regarded as turning on core vagueness principles. When thought of in this manner, moreover, it can be taken as a partial, if not complete, elucidation of the “fair notice” branch of that doctrine. The second Article in the series will integrate this insight into a more complete view of vagueness itself.

©Virginia Law Review Association. All rights reserved.