Academic journal article The Review of Litigation

An Empirical Study of Amici Curiae in Federal Court: A Fine Balance of Access, Efficiency, and Adversarialism

Academic journal article The Review of Litigation

An Empirical Study of Amici Curiae in Federal Court: A Fine Balance of Access, Efficiency, and Adversarialism

Article excerpt

I. INTRODUCTION

It has long been accepted procedure for courts to allow interested non-parties such as amici curiae to influence judicial decisionmaking by offering legal and factual insights that are relevant to the issues in a case but are not found in the trial or appellate record that facilitate the court's decisionmaking process. One of the more famous examples of the U.S. Supreme Court's willingness to accept such data is found in Muller v. Oregon,1 in which the Court upheld the constitutionality of a state law limiting the number of hours that female employees could work.2 In that case, Louis Brandeis, serving as counsel for the State of Oregon, filed a brief containing social science data regarding the detrimental effects of long work hours on women's health and asserting that the law at issue was necessary to protect women's health and safety.3 The unanimous Court accepted the brief, notwithstanding the fact that it contained reports and data that were not part of the appellate record, and noted that the information showed "a widespread belief that woman's physical structure, and the functions she performs in consequence thereof, justify special legislation . . . ."4 Amicus briefs have been influential in many other landmark cases declaring social policy, including Brown v. Board of Education,5 in which the Court cited information offered by amici that segregation generates a feeling of inferiority among persons of color,6 and Roe v. Wade,7 in which the Court relied upon information supplied by amici describing the risks of abortion and recounting beliefs concerning the beginning of life.8

Although non-party participation by amici curiae has been acceptable procedure in federal courts for quite some time, there has been a tremendous surge in amicus activity over recent decades. In fact, during the last half of the twentieth century, the Supreme Court saw an astonishing 800% increase in the number of amicus filings on its docket.9 This increase manifested as an increase in the number of briefs filed as well as an increase in the number of participants cosigning the amicus submissions.10 Several scholars have studied this tremendous surge in non-party participation and established that the influence of amicus briefs on litigation success depends upon many factors, including, for example, the prestige and experience of the entity filing the brief (with the U.S. Solicitor General showing the greatest success), whether the brief supports the respondent or the petitioner (briefs supporting the respondents enjoy higher success rates), and the disparity in number of briefs offered for each side (a small number of briefs for one side with no briefs for the other side sometimes translates into higher success rates, but larger disparities do not).11

This surge of amicus activity has given rise to concern among some judges.12 Several circuit courts have criticized the lack of scrutiny that is common in granting leave to file amicus briefs and at least one circuit has articulated a policy regarding the limited types of amicus filings that it will allow.13 In March, 2006, a federal circuit court refused to accept amicus briefs from three senators, even though none of the parties to the litigation opposed the filing.14 Notwithstanding these concerns, at least one circuit court has expressed support for an open door model toward granting permission to file amicus briefs, expressly rejecting arguments that amici must be impartial and not motivated by pecuniary concerns. 15

In order to evaluate the varying views on amicus participation, we must consider the reasons that amici curiae are seeking to participate in federal litigation in significantly greater numbers than they did fifty years ago. One important factor appears to be the ripening of the public law model of litigation. In 1976, Professor Abram Chayes identified an emerging model of public law litigation which focused on the vindication of constitutional or statutory policies rather than on private disputes. …

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