A Taxonomy to Assess the Usefulness of Amicus Briefs
In recent years, the number of amicus briefs submitted to the Supreme Court, as well as to the lower courts, has increased. Generally, at the beginning of every brief is a “Statement of Interest,” which explains why the brief was filed. The statement of interest tends to convey two broad ideas. First, the brief purports to introduce some argument that is different than the arguments presented by the parties. An amicus brief that merely repeats what the parties argued is not very helpful. Second, the brief is signed by people who bring novel perspectives to the case. For example, they have relevant experience or expertise.
We can graph these two related concepts on an x-y axis.
First, the y-axis plots the novelty of the argument, ranging from expected arguments to unexpected arguments. Expected arguments in amicus briefs are already well-developed by the parties, and do not add much value to deliberations. By contrast, unexpected arguments in amicus briefs are not developed by the parties, and offer the Court valuable new ways to think about the case.
Second, the x-axis plots the identity of the signatories. There are many ways to measure this characteristic. To mirror the y-axis, I consider whether those who signed the brief are expected, or unexpected. Expected signatories are those people who are expected to support a specific result. At the other end of the spectrum are unexpected signatories. These are people you would not expect to support a particular side.
This plot separates the types of amicus briefs into four quadrants. Type I briefs present unexpected arguments from unexpected signatories. Type II briefs present unexpected arguments from expected signatories. Type III briefs present expected arguments from expected signatories. Type IV briefs present expected arguments from unexpected signatories. I also drew two lines that measure usefulness, which I’ll explain later.
Expected and Unexpected Arguments
One way to assess the usefulness of an amicus brief is to measure whether the arguments advanced are expected or unexpected. Briefs at one end of the spectrum simply parrot the sorts of arguments advanced by the parties. Perhaps amici provide a new spin on these arguments, but there is not much new. These briefs are not particularly helpful. Briefs on the other end of the spectrum make novel contributions. For example, scholars who write in a niche area of the law introduce some new argument that was not developed in the litigation. These briefs may be filed in support of neither part. Or, the brief offers an innovative way to read or reconcile older precedents. Most lawyers would boast that their arguments are unexpected. I’m doubtful. To be candid, most amicus briefs do not tread new ground–present company included. Usually, by the time a case gets to the Supreme Court, the issues have been fully and thoroughly vetted. These sorts of cases are won and lost based on well-honed briefing by the parties. From time to time, these unexpected briefs are written. But they are rare.
Expected and Unexpected Signatories
More often than not, the signatories on a brief are entirely expected. Scan through the docket on any Supreme Court
Article from Latest – Reason.com