Helen A. Anderson, Frenemies of the Court: The Many Faces of Amicus Curiae, 49 U. Ric. L. Rev. 361 (2015), https://digitalcommons.law.uw.edu/faculty-articles/214
University of Richmond Law Review
amicus curiae, appellate courts
Ask any lawyer what an "amicus curiae" is, and you will be told that the term means "friend of the court." The term has positive, even warm, connotations. Amicus briefs provide additional information or perspectives to assist courts in deciding issues of public importance. Interest groups, law professors, and politically engaged lawyers are happy to participate in important cases through such briefs. Amicus curiae participation is defended as democratic input into what is otherwise not a democratic branch of government.
Yet, amici curiae—nonparties who are nevertheless advocates, who are not bound by rules of standing and justiciability, or even rules of evidence, and who can present the court with new information and arguments—occupy a unique place in the appellate courts. Amicus briefs have the potential to exert significant influence on a decision, despite their "delusive innocuousness."
Amicus curiae participation has surged in recent years, primarily by interest and advocacy groups wishing to advance their law reform efforts and to gain publicity. In addition, government agencies, officials, law professors, law clinics, individual lawyers, and even high school students have all added their arguments to those of the litigating parties. Yet the category of amicus curiae remains largely unexamined, and little attention is paid to the very different roles amici can play. In some ways, the very term amicus—friend—has obscured the full effect of these changes.
This article creates a taxonomy of amici curiae that allows for a clearer analysis of the advantages and potential drawbacks of amicus participation. Rather than categorizing amici curiae by the types of arguments made, as some scholars have done, this taxonomy categorizes amici by their relationships to the court and the parties.
This article also looks beyond the Supreme Court of the United States—the focus of most scholarly writing on amicus curiae—and examines amicus practice in all appellate courts. This article proceeds as follows. Part I summarizes the history of amicus curiae in the American courts. Part II describes the different types of amici curiae, from governmental amici to the Court‘s Lawyer, Friends of a Party, Independent Friends, and Near Intervenors.
Part III examines the minimal constraints on amicus curiae and the amicus brief itself—its content, page limit, and due date—as well as judicial attitudes towards amicus curiae, as revealed in the court rules and occasional written opinions and surveys. Part IV considers whether and how to limit current amicus curiae participation. The article concludes that although amicus briefs do not seem to be a problem for most courts, there are some reforms to consider. To better assess amicus credibility, all courts should consider requiring financial and authorship disclosure, as the Supreme Court of the United States does.
Should lower courts become overwhelmed with interest group briefs, they might also consider restrictions on duplicative briefs, or briefs that offer nothing useful for the court. A clearer sense of the different types of amicus curiae, and their different contributions or potential for abuse, will help courts address problems that may arise. This may also help some of those who complain that amici curiae are not true to the original concept of "friend of the court." In reality, we are long past that definition.