The Freedom to Admit: Confessions of an Author

Last week the Harvard Law Review published its annual Supreme Court issue, which contains a Foreword by a leading constitutional law scholar on some of the major themes of the term, or the era generally. This year the Foreword was The Constitution of Anti-Colonialism, by Maggie Blackhawk, one of the most prominent scholars of Federal Indian Law in the academy. The piece contains a lot of important themes and interesting discussions, including the Supreme Court’s decision last term in Brackeen v. Haaland, which concerned the constitutionality of the Indian Child Welfare Act.

While this is far from the most important thing in the Foreword, I was particularly struck by a passage Professor Blackhawk wrote about the briefing in Brackeen:

What I find especially thought-provoking about the bolded passage above (“As an author of one of these briefs, I am free to admit the lie“) is the tension it appears to raise between a law professor’s role in authoring scholarship and his or her role in authoring amicus briefs. It appears to suggest that as amicus, a professor might make arguments that are likely to appeal to the court even if they are arguments that one would not make—and indeed would disavow—in one’s scholarship. By contrast, others (most famously Professor Richard Fallon) have argued that scholarly amicus briefs should comply with the norms of scholarly integrity that apply to scholarship.

I would be curious to know what reactions others have to this tension.

[I would add that Professor Blackhawk’s name does not actually appear on the scholarly amicus brief she references (except as a cited source), which was filed on behalf of the American Historical Association and the Organization of American Historians. But Professor Blackhawk describes herself as “[a]n author” of the brief in this passage, and has taken credit for it on her CV and elsewhere, so I take it that this incident does still raise the general question about the roles of scholarship and amicus brief.]