My comment: A problem from a constitutionalist standpoint is that all too often neither of the main parties is defending the Constitution. Both may find it convenient, for their own reasons, to violate it, and the resulting precedent, choosing from among two unconstitutional positions, is a further erosion of constitutional compliance. What is needed is not just /amici/ in such cases, but intervenors, and the FRJP should allow for intervenors to enter at the appellate level.
-------- Original Message -------- Subject: [Volokh] Eugene Volokh: Judicial Attitudes Towards Amicus Briefs: Date: Thu, 23 Jul 2009 13:51:16 -0400 From: [email protected] To: [email protected] Posted by Eugene Volokh: Judicial Attitudes Towards Amicus Briefs: 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[s],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 -- ------------------------------------------------------------------- Constitution Society 2900 W Anderson Ln C-200-322, Austin, TX 78757 512/299-5001 www.constitution.org [email protected] ------------------------------------------------------------------- ---------- _______________________________________________ Volokh mailing list [email protected] http://lists.powerblogs.com/cgi-bin/mailman/listinfo/volokh [Non-text portions of this message have been removed]
