The Supreme Court Succumbs To Truthiness, Leading Librarians And Stephen Colbert To Bicker

from the a-made-up-icus-curiae dept

A couple months ago, someone sent over an interesting Virginia Law Review article from Alli Orr Larsen about how the Supreme Court is increasingly listening to amicus curiae briefs (friend of the court briefs) from parties not actually engaged in lawsuits — and at times that’s problematic because the briefs are not always, you know, factual. We frequently write about amicus curiae briefs, detailing where we agree or disagree with them, leading to some interesting discussions. When done well, these briefs really can add valuable insight. But, sometimes they allow some ridiculous claims to make it into the discussion. As the abstract of Larsen’s paper notes:

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 the failure of the parties to act as an adequate check.

That’s definitely interesting, and certainly opens up the Supreme Court to responding to “truthiness”-type arguments. Given that, it’s perhaps not that surprising that Stephen Colbert, the man who coined “truthiness” in the very first episode of his (soon to be ending) TV show, did a segment on Larsen’s law review article a few weeks ago.

In that segment — which we’d embed if Colbert/Comedy Central offered SSL embeds (they don’t appear to) — he calls out a few of the examples from the paper, including an amicus brief filed by the Library Copyright Alliance in the Kirtsaeng case, concerning the potential impact on foreign-printed books now found in US libraries (the fear was that if the Supreme Court ruled in favor of Wiley, it would mean that merely lending out foreign-printed books would potentially be infringing). Thankfully, the Court went the other way, but Larsen’s paper calls out that the amicus brief from the libraries cited 200 million foreign-printed books from a blog and the blog in question is “no longer available.”

Jonathan Band, the author of that amicus brief, took offense to his “hero,” Stephen Colbert challenging his brief and hit back with an amusing letter that points out that the blog post actually is still available — it just moved. Also, it was written by a known expert in the field who actually had access to the data necessary to make such an estimate. Still, Band jokingly mocks the whole experience of being mocked by Colbert and hits back with a few more amusing, less persuasive, counterpoints:

But then I realized that you, my hero, were actually criticizing the brief because it cited to a blog post as the source for the fact that U.S. libraries possess 200 million foreign-printed books, and the post was no longer available. Now that I have recovered from the shock and humiliation of this criticism, I offer the following response:

  1. What difference does it make if the source can?t be found? This is the perfect example of truthiness. The number we cited sounds right, and we?re a bunch of librarians and librarians never lie.
  2. The law professor who wrote the article that pointed out the missing blog post, Allison Orr Larsen, teaches at William & Mary Law School. That?s a silly name for a law school; it?s like Dick & Jane Law School.
  3. It?s not our fault that the blog post was moved.
  4. The blog post is actually still available in the website?s archive.
  5. The person who wrote the blog post, Ed O?Neil, is an expert on the subject, and has access to the catalogues of the collections of every library in the country.
  6. Wiley?s lawyers had ample opportunity to challenge the number, but didn?t. In fact, no one has challenged the accuracy of the number.

So, while the issue of the Supreme Court relying on amicus briefs is definitely an interesting one to follow, it appears that Larsen — and Stephen Colbert — may have misfired on this particular one.

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Comments on “The Supreme Court Succumbs To Truthiness, Leading Librarians And Stephen Colbert To Bicker”

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Anonymous Coward says:

Link Rot

Supreme Court decisions that make reference to ANYTHING on the web really should be extended to include bodily the images, text, references, etc that the decision refers to. That is, once the decision has been rendered, there should be no need to ever look at some random point on the web to see the context.

I’m willing to bend that opinion *slightly* re citing prior legal art, in that the supreme court decision is likely to be recorded in (at least some of) the same databases.

Mason Wheeler (profile) says:

A couple months ago, someone sent over an interesting Virginia Law Review article from Alli Orr Larsen about how the Supreme Court is increasingly listening to amicus curiae briefs (friend of the court briefs) from parties not actually engaged in lawsuits — and at times that’s problematic because the briefs are not always, you know, factual.

Am I missing something here? I thought that “from parties not actually engaged in [the lawsuit in question]” was the defining characteristic of an amicus brief.

Coyne Tibbets (profile) says:

Re: Point of Clarification

Implicit in the amicus curiae is the presumption that the party is impartial to the case in question; having no interest other than justice. Therefore, the reasoning goes, cross-examination isn’t needed.

That’s great, if it is so. But today, so many of these briefs are from wholly self-interested groups who are friends only to their own interests. That shouldn’t be news, because most of the cases these days are exactly the same way. If the court takes that into account, I see no problem with the use of amicus briefs.

There’s no middle road: pot calls kettle black; kettle rejoins that pot is blacker. No matter which one wins, the other one will bitch about the court’s method, no matter how the court decided. Possibly the most perfect example of this was the SCOTUS ruling on the ACA. Prior to that time, the far right had viewed SCOTUS as their great friend and protector against the horror of government oppression. After the ruling upheld ACA, all of a sudden: “Chief Justice Roberts is cognitively challenged due to drugs.” (That’s not a joke; it was a dead serious accusation.)

So to ask a dead serious question: If Wiley had won, do you think anyone would have raised the possibility of the court’s being improperly influenced by this amicus brief? Of course not.

In the end, the court decides (however it decides to do so) and one side will cheer and the other will whine about “improper court procedure” sour grapes.

Coyne Tibbets (profile) says:

Numbers only wrong ... if challenged

I really enjoyed the reasoning in Band’s counterpoints: “The number wasn’t challenged, so the number is good.” Perhaps he is correct and the number was meaningful, but…

Possibly the best joke of all is the unspoken corollary: If someone presents a number, and that number is challenged, then it is obviously wrong.

I’m left with a mental image of the nation (or it’s Supreme Court) nodding happily to an unchallenged number from a dodgy source. (Such as, to paraphrase T. K. Ryan, “His cousin’s uncle’s best friend knowed a feller what actually shook hands with the feller what said this was the right number.”)

Meanwhile, numbers painstakingly and repeatably validated using the best scientific and mathematical methods are rejected out of hand because pundit Porky Pig says, ‘Th-th-th-th-th-th-th-that’s wrong folks!”

Like the numbers themselves are witnesses to be (dis)credited, when in actuality the witnesses are the sources from which the numbers derive.

Anonymous Coward says:

Namecalling.... Really ?!

“William & Mary Law School. That’s a silly name for a law school; it’s like Dick & Jane Law School”

Now, I never heard of W&M college until today, but… Is it, really?

Interesting that someone challenged on the accuracy of their sources use a fallacy firmly grounded in utter ignorance to parry the accusation.

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