from the a-made-up-icus-curiae dept
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: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.
- 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.
- 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.
- It’s not our fault that the blog post was moved.
- The blog post is actually still available in the website’s archive.
- 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.
- Wiley’s lawyers had ample opportunity to challenge the number, but didn’t. In fact, no one has challenged the accuracy of the number.