Info on Amicus briefs

[tombogan03884]

http://volokh.com/archives/archive_2009_07_19-2009_07_25.shtml#1248111047

[Eugene Volokh, July 20, 2009 at 1:30pm] Trackbacks
Amicus Briefs -- Why File Them?

My colleagues at Mayer Brown LLP have come out with a superb treatise on Federal Appellate Practice. Naturally, I'm biased in this evaluation; but I think it's broadly agreed that Mayer's appellate practice is at least one of the very top in the nation, and they have a lot of experience to pass on. Judge Alex Kozinski agrees in his blurb for the book, calling it "a guide that every appellate lawyer should read — and that every client should expect to see on his lawyer's shelf."

I thought it would be worthwhile to blog some excerpts from the treatise this week, chiefly about amicus briefs and about oral arguments. These aren't necessarily the most important parts of federal appellate practice, but I have to admit that many important parts are not necessarily the most exciting to read about, unless you actually need them for a brief you're working on. So I tried to compromise by finding something generally interesting yet still relatively useful.

Today, I start with a question that has sometimes arisen in discussions here: Why should anyone file an amicus brief, and how should people decide whether to spend their time and money doing it? Here's the discussion, from chapter 12.2 of Federal Appellate Practice (some paragraph breaks added):

    There are many different types of amicus briefs that persons or organizations want to submit to a court of appeals. An amicus sometimes wants to file a brief because it lacks confidence in the party’s ability to address the core issues in the case accurately and competently. In that circumstance, an amicus brief is similar to a party’s brief, addressing the same issues as the party and advancing essentially the same points, although it may not include some of the required components of a party’s brief (for example, a statement of the case and, in many instances, a statement of the facts).

    Another type of amicus brief is filed simply “to enable the officers of trade associations to show their members that they are on the ball.” In that circumstance, as Justice Scalia has put it with characteristic bluntness, “it really does not matter what the amicus brief says.”

    Ideally, however, an amicus will attempt to say something that is of use to the court and different from what the party says. Amicus briefs of this type commonly fall into one of four categories.

    First, there is an infinite variety of circumstances in which an amicus brief can provide extra-record factual information that may be of assistance to the court in understanding the background for the issues. An amicus brief can collect relevant facts or data that do not appear in the parties’ briefs or in the record. This kind of brief enlarges the factual context in which the court will resolve the issues, beyond the record made before the trial court or administrative agency.

    For example, an amicus brief might provide information about religious practices in a free exercise case, a university’s admissions program in an equal protection case, a tribe’s customs in a case involving Indian property, or endangered species in an environmental case. For an amicus brief of that type to be given weight by the court, “the nonrecord facts relied upon should have the ring of truth on their face”; an amicus risks losing credibility “if it goes too far in setting forth nonrecord material as indisputably true.” In addition to providing factual information of which the amicus has special knowledge, amicus briefs may collect relevant facts or data that are publicly available — for example, the legal rules or procedures that govern in different jurisdictions.

    Second, an amicus brief can provide the views of experts on an issue with which the court will have to grapple in deciding the question presented. Such a brief “can present information that may help clarify the issues in much the same way that expert testimony assists courts to make a more fully informed decision.” For example, an amicus brief may provide the views of legal historians in a case involving a constitutional provision whose interpretation is likely to turn on historical practice or the views of economists in a case involving an antitrust issue whose resolution is likely to turn on economic theory.

    In cases of that type, the parties themselves are unlikely to possess the requisite expertise; generalist judges are likely to benefit from the expertise of the amicus; and the judges are more likely to find the views advanced credible than if they had been set forth by the (nonexpert) party whom the amicus is supporting. Some have argued, however, that judges are too willing to find this type of submission credible, because most authors of amicus briefs are guided, not by “the scientific norms of neutrality and objectivity,” but by “the ideology of advocacy.”

    Third, an amicus brief can explain the practical effects of a particular outcome on individuals or groups not before the court. For example, an amicus brief may explain how the decision in a school case will affect student achievement, how the decision in an environmental case will affect water distribution, how the decision in a tax case will affect a certain category of taxpayers, or how the decision in an international-trade case will affect a domestic industry.

    Courts often are influenced by the practical consequences of adopting one or another of the legal rules under consideration. That is particularly true in “highly technical” cases in which decisions by generalist judges may have “a tremendous impact on people and institutions in the real world.” It is also true in nontechnical cases in which there is no clear constitutional or statutory text that directly answers the question presented and judges thus have more leeway in taking practical considerations into account.

    Fourth, an amicus brief can suggest an alternative legal ground for deciding the case. The alternative ground may be narrower. For example, while the party may want to achieve a big, symbolic victory by having a statute declared unconstitutional, the amicus may be able to persuade the court that the party should prevail because the statute, even if constitutional, does not reach the conduct at issue. The alternative ground may be broader. For example, while the party may be seeking to distinguish the decision on which the district court or agency relied, the amicus may believe that there is no plausible basis for distinguishing it and that the only hope for success is to argue that the decision should be overruled. Or the alternative ground may simply be different. For example, the amicus may have what it considers to be a better argument for obtaining the same relief.

    In some cases an amicus will advance an alternative argument because it believes that the argument has a better chance of success; in some cases it will do so because its interests would be better served if the court adopted the amicus’s own legal theory rather than the party’s. If the amicus is supporting the appellant or petitioner and the alternative argument was not raised below, it may not be feasible for the amicus to raise the argument, because a court of appeals generally will not reverse a judgment on a ground not raised below. If the amicus is supporting the appellee or respondent, however, the party’s failure to raise the argument below ordinarily will not be an obstacle, because a court of appeals can generally affirm a judgment on any ground that has a basis in the law and the record.

    One other type of amicus brief bears mention: a brief filed by the government, federal or state, or a government agency as amicus curiae. This type of brief does not have to fit within one of the four categories described above. The government is not an ordinary litigant, and its goal, at least as an ideal, is not to win cases but to ensure that the law is correctly interpreted and that justice is done. For that reason alone, a brief that merely sets forth the government’s views on a particular issue is likely to be deemed helpful by a court, especially when the brief is filed by the United States. That is why, as discussed in the following section, the Federal Rules of Appellate Procedure extend to the federal and state governments the right to submit amicus briefs. A government amicus brief, therefore, may provide powerful support for a party, even if the brief merely endorses the position that the party has staked out.

    Of course, an amicus brief filed by the government may also fit within one of the categories described above. A government or government agency may have unique access to relevant facts or data; it may have expertise developed through administering a particular law; it may be able to explain the practical consequences of adopting a particular legal rule (for example, on the foreign-policy interests of the United States); or it may wish to offer an alternative basis for deciding the case before the court.

[True_Texan]

Damn that spammer bringing up posts I haven't yet read!!! I was slowly getting to the back log of threads.

Thanks for that article Tom. Never completely understood what they entailed and I still don't really.

I now know that I would make a horrible lawyer. That is more sh!t then I care to have to remember. But just to see if I understood most of that... An Amicus brief is basically an attempt made to help sway a court ruling one way over the other based on facts, but not always facts, known by others. Sound right?

I really need to stop staying up so dang late.

[fightingquaker13]

Ok, I'm I bit confused about the trade union post. An Amicus brief is short for amicus curiea and means "friend of the court". The idea is, you let the judge know any relevant info the litigants may have left out.The judge doesn't want opinion letters, but any legal precedent you have may be useful. Its a longer shot than writing your senator, but it can't hurt.
FQ13

[True_Texan]

Ok, I'm I bit confused about the trade union post. An Amicus brief is short for amicus curiea and means "friend of the court". The idea is, you let the judge know any relevant info the litigants may have left out.The judge doesn't want opinion letters, but any legal precedent you have may be useful. Its a longer shot than writing your senator, but it can't hurt.
FQ13

You still haven't figured out posts like that are spammers? They just looked up amicus and pulled the crap off the net.

http://en.wikipedia.org/wiki/Amicus  <----- Where they got that crap from.

Pay attention more often FQ and you won't get suckered into believing those posts are meant to mean anything but to get you to click on the link in the signature line.

[fightingquaker13]

You still haven't figured out posts like that are spammers? They just looked up amicus and pulled the crap off the net.

http://en.wikipedia.org/wiki/Amicus  <----- Where they got that crap from.

Pay attention more often FQ and you won't get suckered into believing those posts are meant to mean anything but to get you to click on the link in the signature line.

I figured that out. I just dont like to slam someone as a troll until they're given a chance, but here I think you're right.
FQ13

[Sponsor]

[True_Texan]

Just pay close attention to what is being posted over and over again. Hopefully you will get the picture on the 1st go.

[tombogan03884]

 One good clue is if you see the same link in 6 nonsense posts on old threads.
I still say the sword one was worth clicking, they had some cool stuff 

[Pathfinder]

I figured that out. I just dont like to slam someone as a troll until they're given a chance, but here I think you're right.
FQ13

1 post
post = gibberish
post includes hyperlink

equals

SPAMMING TROLL

Now, that wasn't hard, was it?   

[tombogan03884]

http://volokh.com/archives/archive_2009_07_19-2009_07_25.shtml#1248371472
 The posts about amicus briefs have gotten enough interest that I
   thought I'd add one more, before I close with two posts about oral
   argument. Again, this is from Mayer Brown's [1]Federal Appellate
   Practice treatise:

     [A] nonparty that is not a government entity or official covered by
     Rule 29 of the Federal Rules of Appellate Procedure and cannot
     obtain the consent of the parties must seek leave of the court to
     file an amicus brief. Whether to grant a motion for leave to file
     is a decision that falls within the discretion of the court of
     appeals.... (a) Restrictive View

     In a series of opinions, Judge Posner of the Seventh Circuit has
     taken a narrow view of the circumstances in which leave to file an
     amicus brief should be granted. Indeed, his attitude towards amicus
     filings has been described as one of outright âhostilityâ and even
     as a âcrusade.â

     While acknowledging that we are now âbeyond the original meaningâ
     of âamicus curiae,â and that âan adversary role of an amicus has
     become accepted,â Judge Posner is nevertheless insistent that there
     be âlimits.â Those limits, according to his opinions, are that a
     motion for leave to file should ordinarily be granted only when (1)
     a party is not represented competently or not represented at all;
     (2) the amicus has an interest in some other case that may be
     affected by the decision in the case before the court; or (3) the
     amicus has unique information or a unique perspective that can
     provide assistance to the court beyond what the lawyers for the
     parties can provide.

     The opinions offer a number of justifications for these
     limitations: (1) judges âhave heavy caseloadsâ and so âneed to
     minimize extraneous readingâ; (2) amicus briefs may be used to
     âmake an end runâ around limitations on the length of party briefs;
     (3) amicus briefs âdrive up the cost of litigationâ; and (4) amicus
     briefs often reflect an effort to âinject interest group politicsâ
     into the judicial process. Judge Posner has applied the limitations
     without discrimination; in the most recent of his opinions, he
     denied a motion filed by the Speaker of the Illinois House of
     Representatives and the President of the Illinois Senate.

     These opinions do not reflect the views of Judge Posner alone.
     Although two of the three were âin chambersâ opinions in which
     Judge Posner spoke only for himself, one of the opinions was a
     panel opinion joined by two other members of the Seventh Circuit.
     And that opinion states that the limitations described above
     reflect the âpolicy of this court.â

     It bears mention, moreover, that Judge Posner is one of the most
     respected and influential judges in the United States. For that
     reason, his views on amicus briefs, as on any issue, will
     inevitably be taken seriously by other courts. The Supreme Court of
     Illinois, for example, has stated that the limitations described in
     Judge Posnerâs opinions will be treated as a âuseful guideâ in
     ruling on motions for leave to file in that court. Following that
     âguide,â the court ruled that the Chamber of Commerce of the United
     States -- one of the most frequent filers of amicus briefs -- would
     not be permitted to file a brief in that case.

     Nevertheless, the significance of Judge Posnerâs views should not
     be overstated, even within the Seventh Circuit. Because a motion
     for leave to file an amicus brief rarely results in the issuance of
     an opinion, it is difficult to gauge how consistently Judge
     Posnerâs âpolicyâ is followed. Still, practitioners filing a motion
     for leave to file in the Seventh Circuit would be well advised to
     include an argument that the proposed brief satisfies the standards
     set forth in Judge Posnerâs opinions. Practitioners should be
     particularly careful to ensure that their proposed amicus filings
     are not perceived as âme tooâ briefs, which merely repeat the
     arguments of the party or other amici. That is sound practice in
     any circuit, but especially in the Seventh. (b) Permissive View

     Outside the geographical boundaries of the Seventh Circuit, Judge
     Posnerâs position on amicus briefs has few defenders. Leading
     appellate practitioners have been highly critical. One has argued
     that Judge Posnerâs âreflexively negative viewâ towards amicus
     briefs âmakes no senseâ given âthe simple fact that many appellate
     decisions have profound effects that far exceed the boundaries of
     the dispute between the parties.â And within the federal courts of
     appeals, Judge Posnerâs position clearly reflects the âminority
     view.â Although there have been isolated instances of courts
     outside the Seventh Circuit denying motions for leave to file for
     reasons other than untimeliness, the âgeneral practice in the
     federal courts of appeals is to grant leave to file an amicus brief
     in most situations.â

     The majority view is comprehensively set forth in an opinion by
     another of the countryâs most respected judges: then-Judge Alito of
     the Third Circuit. His opinion rejects the ârestrictive standardsâ
     reflected in Judge Posnerâs opinions, on the grounds, among others,
     that they may âconvey an unfortunate message about the openness of
     the courtâ and âcreate at least the perception of viewpoint
     discrimination.â Judge Alitoâs opinion also responds to a number of
     the specific points made by Judge Posner. The opinion explains
     that, even when a party is well represented, an amicus may provide
     âimportant assistance to the courtâ -- for example, by collecting
     relevant ââbackground or fact,ââ providing ââexpertise not
     possessed by any party,ââ explaining ââthe impact a potential
     holding might haveââ on a particular group, or arguing ââpoints
     deemed too far-reachingââ by a party. The opinion also points out
     that requiring a prospective amicus to undertake the âdistasteful
     taskâ of demonstrating the incompetence of the attorney for the
     party would likely âdiscourage amiciâ in cases where the partyâs
     brief is âless than idealâ and an amicus submission would be
     âvaluable to the court.â Finally, the opinion notes that a
     restrictive policy is âan unpromising strategy for lightening a
     courtâs work load,â because the time required for âskeptical
     scrutinyâ of proposed amicus briefs might equal or exceed the time
     required for studying the briefs if leave were granted, and
     âunhelpful amicus briefsâ likely claim only âa very small partâ of
     a courtâs time in any event.

     Judge Alitoâs approach is thus diametrically opposed to Judge
     Posnerâs. While the latter effectively establishes a presumption
     that motions for leave to file an amicus brief should be denied,
     the former effectively establishes a presumption that they should
     be granted. As Judge Alitoâs opinion puts it, courts should grant
     leave to file âunless it is obvious that the proposed briefs do not
     meet Rule 29âs criteria as broadly interpretedâ -- i.e., unless it
     is obvious that the movants do not meet the broadly interpreted
     requirements of â(a) an adequate interest, (b) desirability, and
     (c) relevance.â Judge Alitoâs opinion notes, correctly, that this
     approach âis consistent with the predominant practice in the courts
     of appeals.â

     Thus, in most circuits, a motion for leave to file an amicus brief
     will ordinarily be granted as long as the motion and brief (1)
     comply with the technical requirements of Rule 29 and any
     applicable local rules and (2) make a plausible case that the brief
     performs one of the traditional functions of an amicus submission.
     In most circuits, however, a motion ordinarily will not be
     required, because, as Judge Alitoâs opinion observes, the parties
     recognize that âleave to file would be granted [even] if consent
     were withheld,â and thus it is typical for consent to be âfreely
     given.â Practitioners may find that consent is less freely given in
     the Seventh Circuit, because, under that courtâs restrictive
     standards, it is far less clear that leave to file would be granted
     if consent were withheld.

     This practice is consistent with our experience. Counsel who
     regularly practice before courts of appeals (at least other than
     the Seventh Circuit) recognize that it is generally pointless to
     withhold consent to the filing of an amicus brief, even if it is
     being proffered by a hostile amicus. The court of appeals is likely
     to grant the motion, and recalcitrant counsel gains nothing but
     judicial annoyance from forcing the amicus to file a formal motion.
     It may sometimes be awkward to explain to a client why giving this
     consent is not only appropriate as a matter of âprofessional
     courtesyâ but also as a matter of tactical wisdom; counsel
     representing a party should be prepared to provide such an
     explanation. If succeeding on an appeal depends on keeping the
     court of appeals from hearing from an amicus curiae, counsel and
     the client may have real problems.

References

   1. http://storefront.bnabooks.com/epages/bnastore.sf/en_US/?ObjectPath=/Shops/bnastore/Products/1669