Curtis E.A. Karnow of the Superior Court of California, County of San Francisco, has authored “Scholars as Amici” in The Green Bag's Autumn 2020 issue.
In the piece, Judge Karnow offers a unique definition of a scholarly paper and compares their purpose and use to briefs of amici curiae.
The following is an excerpt:
You can say what you want on scholarly papers. Are you reporting a consensus? An historical review of what the term has meant over the last 200 years? Are you reporting what some famous or smart person once said? Or are you sending out a prayer, a plea, a hope?
I am hoping. So here’s how I define a scholarly paper:
A scholarly paper – in the legal world – is one which provides context and background for trial orders and other judicial opinions. It doesn’t matter where it’s published. It could itself be a court opinion. It might be on legal issues and often is, but not necessarily, because it might be directed to statistics, DNA, privacy, computers, medicine, or accounting. In any event the paper is directed to judges, and so is of interest to lawyers who want to persuade judges.
It’s a broad category.
In this country, court decisions are usually informed only by a few private parties with private interests, but the results are precedential – everyone else has to live with the consequences. Public policy issues which in other governments are relegated to bureaucracies and other (perhaps elected) officials are in the United States given over to courts. Problems arise where judges have broad powers on public issues but are informed only by private parties. Blend in the fact that trial judges (and to a lesser extent appellate judges) don’t have time to investigate all aspects and ramifications of their decisions, and we have a sometimes toxic brew.
This might bring into question the legitimacy of the courts’ decisions. And private parties concerned that courts will import public policy to decide their private dispute may try to opt out of the court system – e.g., for arbitration. But in the United States there’s no line between private and public: even contract disputes, where the parties have the broadest range of options to set their own rules, are subject to constraints such as voiding unconscionable provisions.
Scholarly papers, like briefs of amici curiae, ameliorate these problems. They focus on broader issues, likely not briefed by the parties and requiring too much work to figure out in the context of a single case. The papers might address the development of a statute, or the last fifty years of appellate opinions on an issue. This is useful because courts might not have the time to do this themselves, and because scholars think of things that judges don’t.