{ 411 on Amicus Briefs }

I wanted more info on this Amicus brief thing, so I found the basics on Wikipedia. It’s pretty interesting. Looks like our friendly legislators are counting on their brief to sway the court, (not that they need much swaying after what they did in May). And why am I not surprised that the ACLU is, of course, one of the organizations that frequently submits these briefs, and they are also tangled up in the fight to invalidate Proposition 8.

Amicus curiae
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Amicus curiae or amicus curiæ (plural amici curiae) is a legal Latin phrase, literally translated as “friend of the court”, that refers to someone, not a party to a case, who volunteers to offer information on a point of law or some other aspect of the case to assist the court in deciding a matter before it. The information may be a legal opinion in the form of a brief, testimony that has not been solicited by any of the parties, or a learned treatise on a matter that bears on the case. The decision whether to admit the information lies with the discretion of the court.

History

The amicus curiae figure originates in Roman law. Starting in the 9th century, it was incorporated to British law, and was later extended to most of common law systems. Later, it was also introduced in international law, in particular concerning human rights. From there, it was integrated in some civil law systems (it has recently been integrated in Argentina]. Today, it is used by the European Court of Human Rights, the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights.

Presentation

The role of an amicus is often confused with that of an intervener. The role of an amicus is as stated by Salmon LJ (as Lord Salmon then was) in Allen v Sir Alfred McAlpine & Sons Ltd [1968] 2 QB 229 at p.266 F-G where he said:

I had always understood that the role of an amicus curiae was to help the court by expounding the law impartially, or if one of the parties were unrepresented, by advancing the legal arguments on his behalf.

The situation most often noted in the press is when an advocacy group files a brief in a case before an appellate court to which it is not a litigant. Appellate cases are normally limited to the factual record and arguments coming from the lower court case under appeal; attorneys focus on the facts and arguments most favorable to their clients. Where a case may have broader implications, amicus curiae briefs are a way to introduce those concerns, so that the possibly broad legal effects of court decisions will not depend solely on the parties directly involved in the case.

In prominent cases, amici curiae are generally organizations with sizable legal budgets. Non-profit legal advocacy organizations such as the American Civil Liberties Union, the Electronic Frontier Foundation, the American Center for Law and Justice or NORML frequently submit such briefs to advocate for or against a particular legal change or interpretation. If a decision could affect an entire industry, companies other than the litigants may wish to have their concerns heard. In the United States, federal courts often hear cases involving the constitutionality of state laws. In this case, other states may file briefs as amici curiae when their laws are likely to be affected.

Amici curiae that do not file briefs often present an academic perspective on the case. For example, if the law gives deference to a history of legislation of a certain topic, a historian may choose to evaluate the claim using their expertise. An economist, statistician, or sociologist may choose to do the same.

The court has broad discretion to grant or to deny permission to act as amicus curiae. Generally, cases that are very controversial will attract a number of such briefs.

Legal interpretations

[A] phrase that literally means ‘friend of the court’ – someone who is not a party to the litigation, but who believes that the court’s decision may affect its interest.
—William H. Rehnquist, The Supreme Court, p. 89

Rules defining use in the United States

An amicus curiae brief that brings to the attention of the Court relevant matter not already brought to its attention by the parties may be of considerable help to the Court. An amicus curiae brief that does not serve this purpose burdens the Court, and its filing is not favored.
—Rule 37(1), Rules of the Supreme Court of the U.S.

FRAP 29. BRIEF OF AN AMICUS CURIAE A brief of an amicus curiae may be filed only if accompanied by written consent of all parties, or by leave of court granted on motion or at the request of the court, except that consent or leave shall not be required when the brief is presented by the United States or an officer or agency thereof, or by a State, Territory or Commonwealth. The brief may be conditionally filed with the motion for leave. A motion for leave shall identify the interest of the applicant and shall state the reasons why a brief of an amicus curiae is desirable. Save as all parties otherwise consent, any amicus curiae shall file its brief within the time allowed the party whose position as to affirmance or reversal the amicus brief will support unless the court for cause shown shall grant leave for a later filing, in which event it shall specify within what period an opposing party may answer. A motion of an amicus curiae to participate in the oral argument will be granted only for extraordinary reasons.
—Rule 29. Federal Rules of Appellate Procedure (FRAP)

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