Volokh on Amicus Briefs

Eugene Volokh has a post on the subject of amicus briefs that was prompted by the exchange between he, Clayton Cramer and myself over the ACLU. Cramer criticized the ACLU for not filing a brief in a particular case (without ever bothering to answer if he actualy knew they hadn't filed one or just assumed so because they aren't mentioned in the ruling). Volokh and I both pointed out that this is a very weak basis for criticizing the ACLU, or any public interest legal group, because there are lots of reasons why they may not have filed a brief in a particular case.

They may not have known of the case in time to file, they may have been too busy with other cases to complete a brief in time, or they may have felt that the legal issues were sufficently covered by other briefs already filed in the case. To use the mere non-filing of a brief as evidence that they oppose the principle in the case is an incredibly weak argument and, frankly, a rather lazy one. And when accompanied by the fact that the ACLU has consistently upheld that principle in numerous other cases, I would argue that this type of argument is dishonest as well.

In this most recent post, Volokh addresses the issue of when a group should and shouldn't file an amicus brief and he points out that under the Supreme Court and appellate court rules, a brief should not be filed unless it addresses questions not adequately addressed by other groups who have filed briefs in the case:

That's made explicit in Rule 37.1 of the U.S. Supreme Court Rules:

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.

Rule 29 of the federal Rules of Appellate Procedure, which applies to the federal courts of appeals, likewise states:

The motion [for leave to file an amicus brief] must be accompanied by the proposed brief and state...the reason why an amicus brief is desirable and why the matters asserted are relevant to the disposition of the case...

Now sometimes groups do file briefs just because they feel a burning need to participate in a case -- perhaps because they want to impress donors, or because they think their very name might help influence the judges. But that's not what courts really want them to do, and it's both expensive and possibly counterproductive (since judges might get annoyed when they feel that a group is wasting the judge's time by filing briefs that add nothing really new). It also wastes the time of lawyers on the other side, who have to read the briefs closely and figure out whether they indeed have anything to say.

Having filed briefs in Federal court a few times, I can tell you that it's quite a process to go through. It's expensive and time-consuming and it shouldn't be done lightly or for frivolous reasons.