17 Sep Why Do Amicus Briefs Exist? Question, Not a Comment
I want to follow up Roger’s post on law professor sign on amicus briefs with a really basic, genuinely naive question. I am not a litigator and do not know very much about litigation. I have never really understood the rationale behind courts accepting amicus briefs – law professor briefs, or any other kind. I’m not putting this as a snarky comment hiding behind a question. I find it genuinely puzzling. I understand the etymology – friend of the court – but the ones I have worked on seemed to have two distinct functions or rationales. One was as a mechanism for getting the interests of a non-party somehow worked into the litigation. The other seemed to be about informing the court, but regardless of the high toned language, always as an advocate. I don’t believe I have ever worked on or ever seen an amicus brief that I could describe as a genuinely neutral, non-advocacy, purely informative “friend of the court” brief. Was there ever historically any practice of actually neutral, purely informative briefs, not holding a semi-covert brief for one side or the other, or for some third party? And why do courts accept these things? I also wonder whether any of our OJ readers from outside the US legal system find the system of amicus briefs as puzzling as I, as a non-litigator, do. I would welcome any explanation of how the system works, where it comes from, and why it exists as it does. Is there any body of scholarly literature devoted to it? As I recall, my colleague at WCL Padideh A’lai has written a well-regarded article on the use of amicus briefs in the WTO, but that’s the only thing in the literature (which I have certainly not researched) I’m aware of. Comments welcome, please.
Ken,
Funny you should ask, because I was thinking about responding to Roger’s post myself and it’s safe to say that my perspective on your question is absolutely unique: I’m a layman who’s filed two amicus briefs, pro se no less — one with the US Supreme Court, the other with the US District Court for the District of Columbia.
It wasn’t something I undertook lightly either, but a friend of mine pressed me to try, so I sat down with the rules of the Supreme Court to prove it was hopeless…
And after a day of study, I’d failed. US Supreme Court Rule 37(1) 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.”
And there I was in early 2004, after fully two years of all out day and night effort on my preposterous little project. At first, I’d only been interested in the detainee cases as a window on the administration’s detainee policies, since I knew that the legal profession would be all over the habeas issues like fleas on a stray dog and my own focus was a criminal investigation of the administration’s war crimes.
But I did read the briefs, <i>all</i> of them (having registered for a PACER account early on for just that purpose), and much as I admired the work and acumen of the attorneys, I grew increasingly frustrated by what I perceived as a failure to adequately address some of the most important issues, and equally, to refute head on some of the government’s most outrageous claims. Then the 4th Circuit handed down it’s opinion in Hamdi v. Rumsfeld, 316 F.3d 450 (CA4 2003), which I regarded as nothing less than a judicial war crime. Up to that point, I’d tried to stay narrowly focused on the law of war issues at the heart of my project, but after, the scope of my efforts expanded to the full range of the civil and constitutional issues in the habeas cases.
So I gave it try and actually managed to pull it off, though it definitely wasn’t easy, and each of the two briefs has a long story I’ll omit here. But I can explain why I thought it necessary to file them very easily — res ipsa loquitur:
BRIEF OF AMICUS CURIAE CHARLES B. GITTINGS JR. IN SUPPORT OF PETITIONERS, Hamdi v. Rumsfeld, No. 03-6698 (S. Ct. 2004.02.23).
BRIEF OF AMICUS CURIAE CHARLES B. GITTINGS JR. AND CROSS-MOTION FOR SUMMARY JUDGEMENT IN SUPPORT OF PETITIONERS, In re Guantanamo Detainee Cases, lead dkt. No. 02-cv-299 (D.D.C. 2004.10.14)
PS:
I’ve been getting a powerful itch to try it again lately, but this time around I do not want to attempt it pro se. So if anyone reading this is an attorney who is admitted to the D.D.C. bar and would be willing to represent me pro bono, they can contact me at cbgittings@yahoo.com.