Adam Liptak has this article in the NYT on the subject of law professor amicus briefs and Richard Fallon's much-discussed essay. I have a personal interest in this part of the story:
In his essay, Professor Fallon discussed a second brief he had declined to join. It concerned "a highly complex question of federal jurisdiction over a habeas corpus petition filed by a prison inmate" and was written by Michael C. Dorf, a law professor at Cornell.
Professor Fallon said the brief was in all likelihood "exemplary in all respects." But he said he would not sign that one, either, on the refreshing ground that he had not done the required reading.
"Of the dozens of Supreme Court decisions to which the brief referred, there were some that I know well, and others I recall only hazily," he wrote. "The brief also cited at least nine Supreme Court cases that I cannot remember ever having read at all, and 12 lower court decisions that I know I have never read."The case was Walker v. Martin, and Dorf's brief was a direct response to my brief for CJLF, a brief that reiterated a position I had been promoting for a long time, urging the Court to clean up its confusing jurisprudence on when a state procedural default rule is "adequate" to preclude federal court review of a defaulted claim. My brief cited (you guessed it) Fallon, Meltzer, & Shapiro for the proposition that the Court had offered "varying rubrics" for when a state ground is inadequate (p. 11) among other points.
"It seems pertinent," he added, "that my instinctive sympathy for the asserted position -- and thus my impulse to want to sign -- had ideologically based foundations."
In an e-mail, Professor Dorf said that he, too, had long been suspicious that "law professor briefs were attempting to leverage scholarly reputations for political/ideological ends."
"I prefer not to be asked to sign such briefs, but because I do sign some, I worry that not signing may be taken as disagreement," he wrote. "Finding it harder than Dick does to say no, I cannot afford to be as scrupulous as he. I admire him on both counts, but I guess I'm just weak."
The heading of Part I of Dorf's brief begins, "The Court's jurisprudence defining the adequacy inquiry for state rulings is well established, clearly defined...." The "clearly defined" part of that proposition is utter nonsense and is contradicted by Fallon's treatise, as noted above, as well as Wright & Miller and most of the other commentary on the subject. The "adequacy" jurisprudence is a mess and everyone knows it.
My proposal, to which the Dorf brief was opposed, was to dump the "rubric"
of "strictly or regularly followed" and instead adopt a rule along the line suggested in Wright & Miller of fair notice of the proper procedure for raising the objection. Dorf's brief, designated the brief of "Federal Courts Scholars," does not mention that the preeminent treatise in the field of federal procedure is opposed to his position.
So how did it end? In a unanimous opinion by Justice Ginsburg, the Court kept the "regularly followed" language in form but morphed it into Wright's "fair notice" in practice. A rule does not cease to be "regularly followed" "simply because a court may opt to bypass the [procedural default] assessment and summarily dismiss a petition on the merits, if that is the easier path." Slip op. at 11. Nor do occasional discretionary departures in the interests of justice deprive a state rule of its "adequate" status. Id., at 11-12. So what does?
A state ground, no doubt, may be found inadequate when "discretion has been exercised to impose novel and unforeseeable requirements without fair or substantial support in prior state law . . . ." 16B C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §4026, p. 386 (2d ed. 1996) . . . .I'm good with that.