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 �hostility� and even
as a �crusade.�
While acknowledging that we are now �beyond the original meaning�
of �amicus curiae,� and that �an adversary role of an amicus has
become accepted,� Judge Posner is nevertheless insistent that there
be �limits.� 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 �have heavy caseloads� and so �need to
minimize extraneous reading�; (2) amicus briefs may be used to
�make an end run� around limitations on the length of party briefs;
(3) amicus briefs �drive up the cost of litigation�; and (4) amicus
briefs often reflect an effort to �inject interest group politics�
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 �in chambers� 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 �policy of this court.�
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 Posner�s opinions will be treated as a �useful guide� in
ruling on motions for leave to file in that court. Following that
�guide,� 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 Posner�s 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
Posner�s �policy� 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 Posner�s opinions. Practitioners should be
particularly careful to ensure that their proposed amicus filings
are not perceived as �me too� 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
Posner�s position on amicus briefs has few defenders. Leading
appellate practitioners have been highly critical. One has argued
that Judge Posner�s �reflexively negative view� towards amicus
briefs �makes no sense� given �the simple fact that many appellate
decisions have profound effects that far exceed the boundaries of
the dispute between the parties.� And within the federal courts of
appeals, Judge Posner�s position clearly reflects the �minority
view.� Although there have been isolated instances of courts
outside the Seventh Circuit denying motions for leave to file for
reasons other than untimeliness, the �general practice in the
federal courts of appeals is to grant leave to file an amicus brief
in most situations.�
The majority view is comprehensively set forth in an opinion by
another of the country�s most respected judges: then-Judge Alito of
the Third Circuit. His opinion rejects the �restrictive standards�
reflected in Judge Posner�s opinions, on the grounds, among others,
that they may �convey an unfortunate message about the openness of
the court� and �create at least the perception of viewpoint
discrimination.� Judge Alito�s 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
�important assistance to the court� -- for example, by collecting
relevant ��background or fact[s],�� providing ��expertise not
possessed by any party,�� explaining ��the impact a potential
holding might have�� on a particular group, or arguing ��points
deemed too far-reaching�� by a party. The opinion also points out
that requiring a prospective amicus to undertake the �distasteful
task� of demonstrating the incompetence of the attorney for the
party would likely �discourage amici� in cases where the party�s
brief is �less than ideal� and an amicus submission would be
�valuable to the court.� Finally, the opinion notes that a
restrictive policy is �an unpromising strategy for lightening a
court�s work load,� because the time required for �skeptical
scrutiny� of proposed amicus briefs might equal or exceed the time
required for studying the briefs if leave were granted, and
�unhelpful amicus briefs� likely claim only �a very small part� of
a court�s time in any event.
Judge Alito�s approach is thus diametrically opposed to Judge
Posner�s. 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 Alito�s opinion puts it, courts should grant
leave to file �unless it is obvious that the proposed briefs do not
meet Rule 29�s criteria as broadly interpreted� -- i.e., unless it
is obvious that the movants do not meet the broadly interpreted
requirements of �(a) an adequate interest, (b) desirability, and
(c) relevance.� Judge Alito�s opinion notes, correctly, that this
approach �is consistent with the predominant practice in the courts
of appeals.�
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 Alito�s opinion observes, the parties
recognize that �leave to file would be granted [even] if consent
were withheld,� and thus it is typical for consent to be �freely
given.� Practitioners may find that consent is less freely given in
the Seventh Circuit, because, under that court�s 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 �professional
courtesy� 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
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