Posted by Eugene Volokh:
Amicus Briefs -- Why File Them?
http://volokh.com/archives/archive_2009_07_19-2009_07_25.shtml#1248111047
My [1]colleagues at Mayer Brown LLP have come out with a superb
treatise on [2]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 [3]one of the very top in the nation,
and they have a lot of experience to pass on. Judge Alex Kozinski
agrees in [4]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.
([5]Show the rest of the excerpt.)
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.
([6]Hide most of the above text.)
References
1. http://www.volokh.com/posts/1138390682.shtml
2.
http://storefront.bnabooks.com/epages/bnastore.sf/en_US/?ObjectPath=/Shops/bnastore/Products/1669
3. http://www.volokh.com/posts/chain_1181765847.shtml
4.
http://storefront.bnabooks.com/epages/bnastore.sf/en_US/?ObjectPath=/Shops/bnastore/Products/1669
5. file://localhost/var/www/powerblogs/volokh/posts/1248111047.html
6. file://localhost/var/www/powerblogs/volokh/posts/1248111047.html
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