Posted by Orin Kerr:
Amicus Briefs at the Cert Stage:
http://volokh.com/archives/archive_2008_11_30-2008_12_06.shtml#1228500774
Over at [1]Slate, Adam Chandler has an interesting essay on the use of
Supreme Court amicus briefs at the cert stage. (In English, those are
written legal arguments filed by "friend of the court" -- that is,
people other than the litigants themselves -- on whether the Supreme
Court should take a case.) These are almost always briefs urging the
Justices to take a particular case, designed to get a law clerk's
attention and make a case appear more important and increase the
chances the court will take the case. Almost no one files amicus
briefs against certiorari, as it would backfire: Such a brief would
tell the Court that you think the case is so important that you've
written in to keep the Justices out, which only makes them more
interested. Some stats from the essay:
Between May 2004 and August 2007, nearly 1,000 private
organizations filed cert-stage briefs. Only a few make it a
habit�just 16 groups filed eight or more early-bird briefs a piece.
Ten of those top amici serve business interests and conservative
causes. They include the Products Liability Advisory Council, the
Pacific Legal Foundation, and the National Association of
Manufacturers. And the king of the amici, the U.S. Chamber of
Commerce, filed 55 briefs over the period studied, or about 17 each
year.
Among the top 16 cert-stage amicus filers, the National
Association of Criminal Defense Lawyers is the only one that might
be considered a liberal interest group. It ranked second to the
Chamber of Commerce with 33 briefs. The American Civil Liberties
Union tallied just two cert-stage amicus briefs during the three
years under review.
I wonder if cert-stage amicus briefs might be a good project for
some of the law school clinics that are cropping up and are looking
for cases. It's less sexy to write a cert-stage amicus brief than a
merits brief, of course. But such briefs can have a recognizable
impact by explaining the stakes of a case in a way that petitioners
themselves often can't.
References
1. http://www.slate.com/id/2206039/
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