The Utility of Pro Bono Representation of U.S.-Based Amicus Curiae in Non-U.S. and Multi-National Courts as a Means of Advancing the Public Interest

Fordham International Law Journal, Dec 2004

Among the myriad ways that the interests of underprivileged persons and groups can be protected and promoted, and other causes of public interest can be served, is through the participation by amicus curiae in litigation adjudicating relevant issues. Amici must "identify every person or entity, other than the amicus curiae, its members, or its counsel, who made a monetary contribution to the preparation or submission of the brief." An amicus who has been adversely affected as an individual by enforcement of a law that a corporate litigant is contesting may be able to poignantly present the law's ramifications through personal perspective and in eidetic detail. The benefits of such participation also may be apparent in public interest litigation, where an indigent or poorly-resourced litigant lacks adequate representation and amicus support advocates for a more promising disposition. Although the submission of briefs by amici can promote a greater understanding by the court of the potential impact and policy implications of its ruling, a number of issues have been raised about the advisability and utility of amicus participation. Pro bono representation of public interest amici is especially important in light of the increasingly common practice of filing amicus briefs, support for which typically is easier to marshal by the government and the private sector.

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The Utility of Pro Bono Representation of U.S.-Based Amicus Curiae in Non-U.S. and Multi-National Courts as a Means of Advancing the Public Interest

FORDHAMINTERNATIONAL LAWJOURNAL Fordham International Law Journal Madeleine Schachter - 2004 Article 2 Copyright c 2004 by the authors. Fordham International Law Journal is produced by The Berkeley Electronic Press (bepress). http://ir.lawnet.fordham.edu/ilj Madeleine Schachter Among the myriad ways that the interests of underprivileged persons and groups can be protected and promoted, and other causes of public interest can be served, is through the participation by amicus curiae in litigation adjudicating relevant issues. Amici must “identify every person or entity, other than the amicus curiae, its members, or its counsel, who made a monetary contribution to the preparation or submission of the brief.” An amicus who has been adversely affected as an individual by enforcement of a law that a corporate litigant is contesting may be able to poignantly present the law’s ramifications through personal perspective and in eidetic detail. The benefits of such participation also may be apparent in public interest litigation, where an indigent or poorly-resourced litigant lacks adequate representation and amicus support advocates for a more promising disposition. Although the submission of briefs by amici can promote a greater understanding by the court of the potential impact and policy implications of its ruling, a number of issues have been raised about the advisability and utility of amicus participation. Pro bono representation of public interest amici is especially important in light of the increasingly common practice of filing amicus briefs, support for which typically is easier to marshal by the government and the private sector. THE UTILITY OF PRO BONO REPRESENTATION OF U.S.-BASED AMICUS CURIAE IN NON-U.S. AND MULTI-NATIONAL COURTS AS A MEANS OF ADVANCING THE PUBLIC INTEREST Madeleine Schachter* INTRODUCTION Among the myriad ways that the interests of underprivileged persons and groups can be protected and promoted, and other causes of public interest can be served, is through the participation by amicus curiae in litigation adjudicating relevant issues. Amicus participation has a long and venerable tradition with civil rights and other social justice causes in the United States. Used in a judicious fashion with adequate safeguards, pro bono representation of amici can serve such interests in non-U.S. and multi-national tribunals. Although some have questioned whether the amicus curiae practice has lost sight of its role as a "friend of the court," and become instead a "friend of the party," amicus briefs have been filed with increasing frequency. It appears that courts give consideration to arguments advanced by amici, who assist the court by presenting alternative or supplementary arguments or empirical factual information, and thus play an important role in judicial analysis. In the international arena, amicus submissions can play a val* The author is Deputy General Counsel at Time Warner Book Group Inc., which is part of Time Warner Inc., and an Adjunct Professor at the Fordham University School of Law. The views expressed in this Article should not be understood as necessarily expressing the views of anyone other than the author or as constituting legal advice. The author is grateful to Joan Vermeulen, Executive Director, and Elise Colomer Grimaldi, Program Associate, of The Cyrus R. Vance Center for International Justice Initiatives, for suggesting exploration of these issues; Christopher Rizzo, Counsel, the Municipal Art Society of New York, for meeting to discuss the practice of amicus filings; Todd Crider of Simpson Thacher & Bartlett LLP, for conferring about the amicus curiaebrief filed by the Open Justice Society Initiative in Mauricio Herrera Ulloa and Ferndn Vargas Rohrmoser of "La Naci6n" Newspaper v. The Republic of Costa Rica, Case No. 12.367 (Inter-American Court of Human Rights, brief submitted May 2004) ; and Wynne P. Kelly, Josephine Liu, andJacob N. Gothia, students at the Fordham University School of Law, for their assistance with the citational review of this Article. uable role by presenting diverse experiences and perspectives to a court that may not previously have addressed the issue with which the court is confronted. Pro bono representation of underprivileged amici is critical as a means of fostering their interests, ensuring they are not over-shadowed by better-resourced amici, and providing assistance where other support has not adequately matured. Disclosures such as the nature of the amici's interests and sources of funding help promote credibility and deter misplaced inferences of bias. Because amici curiae, like other litigants, must avoid knowing misstatements of law or fact, efforts to influence the court's determination through the amici device is directed through a prism of analytical thought or empirical foundation that is visible to the litigants and the public at large. Advocacy through the amicus device thereby helps further the administration of justice by promoting consideration of diverse viewpoints. I. THE ORIGINS OFAMICUS CURIAE SUBMISSIONS The Latin phrase "amicus curiad' means "friend of the court." The term refers to "[a] procedure whereby an appellate court may be informed by persons not parties to a legal action, who are nonetheless particularly informed or interested in the outcome (or at least in the law being declared)."' The definition comports with the historical roots of the practice of amicus filings. The submission of amicus briefs in some form "may be more than a thousand years old, beginning in ancient Rome. Amici provided information, at the court's discretion, in areas of law in which the courts had no expertise or information."2 From this practice, or perhaps in a separately evolving practice,' the English common law developed the practice of amicus participation as a means of "helping judges avoid errors and in maintaining judicial honor and integrity by acting as 'the judiciary's impartial friend,' providing information beyond the court's expertise."4 For example, in 1686, Sir George Treby, a member of Parliament, appeared as amicus by leave of the court to advise the tribunal about the intended meaning of a law the court was charged with interpreting.5 "The function of the amicus curiaeat common law was a form of oral 'shepardizing,' the bringing up of cases not known to the judge. In this role, the amicus submission originally was intended to provide a court with impartial legal information that was beyond its notice or expertise, which is where the name amicus curiae, or 'friend of the court' is derived." 6 Chief Judge Judith S. Kaye of New York's highest court characterized the amicus in this type of situation as "a sort of legislative hotline."7 There was no requirement that the amicus be a lawyer, "and the general attitude of the courts was to welcome such aid, since 'it is for the honor of a court of justice to avoid error.' " One commentator observed that "[n] o longer a mere friend of the court, the amicus has become a lobbyist, an advocate, and, most recently, the vindicator of the politically powerless."9 The process has been envisaged less as one imparting unbiased scholarly guidance to the Court and more as one comprising dueling amici. This phenomenon has not been without critics, one of whom opined that "[n] otwithstanding thejudiciary's good intentions, the removal of restrictions on third party involvement has metamorphosed the amicus curiae doctrine into an adversarial weapon."l° Some interest groups have been established for the purpose of participating as amici in appellate cases. Such entities sometimes are described as "acknowledged adversaries" or "litigating 2004] amic[i]."" Others engage in both direct representation and participate as amici. For example, the American Civil Liberties Union ("ACLU") appears on behalf of litigants, and, with conspicuous frequency, as amicus. From 1969 through 1981, for instance, the ACLU participated in forty-four percent of all criminal cases in which an amicus brief was filed. 12 The ACLU has participated in such landmark rulings as Mapp v. Ohio, 3 Gideon v. Wainwright,"4 Escobedo v. Illinois, 5 and Miranda v. Arizona.1 6 The ACLU is among civil rights groups that regularly use the amicus device to protect and advance civil rights. Professional organizations, such as bar associations and medical associations, also participate in litigation as amici, as do corporations, unions, and banks. 7 Amici cross a range of political spectra; one commentator surmised that there may be "almost as many 'conservative' public interest groups as liberal 18 ones."' Groups with commercially-based interests have been created in order to advance the interests of their constituents. One such example is the Product Liability Advisory Council, Inc., 9 which is a non-profit association with more than a hundred members representing U.S. and international product manufacturers. z0 Another frequent amicus party is the government, at both the federal and State levels. This practice is believed to have originated nearly two centuries ago in Green v. Biddle."' In that case, Henry Clay appeared on behalf of the State of Kentucky as FOtDHAMINTERNATIONAL LAWJOURNAL amicus. The Office of the Solicitor General currently is among the most frequent amicus litigants in the U.S. Supreme Court. Although the amicus frequently tends to support one party's position in opposition to that asserted by the other party, amici also may participate to protect third party interests exclusively. In one early case, the court allowed the amicus to argue that the suit between the parties was collusive and would impact the marital status of the amicus.22 The amicus thereby sought to protect both the interests of the amicus and the interests of the court. Subsequent cases, notably involving amici that represent not-forprofit groups or underprivileged persons, position amici as advocates for persons not otherwise officially before the court or who might be precluded from appearance because of standing prerequisites. II. PROCEDURAL RULES GOVERNING AMICUS SUBMISSIONS A. Prerequisitesto Filing Rule 37 of the Rules of the Supreme Court specifically contemplates the submission of amicus briefs.2 ' Generally, in order to file an amicus brief, the amicus is required to secure the parties' consent or the Court's leave. Exceptions to consent and leave requirements in the Supreme Court apply to briefs submitted by the U.S. government and by States, including by State Attorneys General and authorized local law enforcement officers.2 4 Motions for leave to file are granted routinely, mitigating an inclination by parties' counsel to refuse consent. Yet courts occasionally deny such motions. The New York Court of Appeals recently refused to allow Assembly Speaker Sheldon Silver to appear as amicus25 in a bond bailout case, Local Gov't Assistance Corp. v. Sales Tax Receivable Corp2. 6 The court, which allowed the Bank of New York to proceed as amicus as Successor Trustee under the 2004] Local Assistance Corporation Bond Resolutions2" and the New York State Conference to proceed as amicus,28 did not explain its decision regarding Silver's motion.29 Previously, the same court declined to bestow amicus status on legislators in cases determining the constitutionality of legislation.3" Richard Posner, Chief Judge of the U.S. Court of Appeals for the Seventh Circuit, addressed the tendency of judges to grant motions for leave to file amicus curiae briefs without adequate deliberation. 1 He noted that the vast majority of amicus briefs are filed by "allies of litigants" who repeat the arguments made in the parties' briefs, which merely serve to extend the length of each litigant's briefE.3 2 "Such amicus briefs should not be allowed. They are an abuse," he concluded. "The term 'amicus curiae' means friend of the court, not 'friend of a party.' 33 Judge Posner posited three instances in which submissions generally should be permissible: when a party is not represented competently or is not represented at all, when the amicus has an interest in some other case that may be affected by the decision in the instant case, and when the amicus has "unique information or perspective that can help the court beyond the help that the lawyers for the parties are able to provide."34 B. DisclosureRequirements Interests are rendered more transparent and possible biases of amici are probed in three general ways through disclosure requirements for submissions to the U.S. Supreme Court. First, amici are required to submit a statement of interest in their briefs, which helps inform the Court about the interest groups or other entities and persons they represent. 5 Second, Supreme 1. 31. See Ryan v. Commodity Futures Trading Comm'n, 125 F.3d 1062 (7th Cir. 1997). 32. See id. at 1063. 33. Id. (citations omitted). 34. Id. (citation omitted). 35. SuP. CT. R. 37.2(b), 37.3(b). Court Rules require amici, other than governmental amici, to disclose "whether counsel for a party authored the brief in whole or in part. 3' 6 Third, amici must "identify every person or entity, other than the amicus curiae, its members, or its counsel, who made a monetary contribution to the preparation or submission of the brief. 37 As one commentator observed, "if amici are less than perfectly candid with the appellate tribunal as to their true motivation behind filing the brief, their objectivity - and thus their ability to represent the important interests of non-parties in litigation - becomes questionable. Such interested amici may, therefore, actually subvert the judicial system's goal of serving the public interest." 8 State court procedural rules vary among states, leading another commentator to suggest that Florida courts adopt the Supreme Court rule to promote "greater disclosures regarding both who funded and who wrote the amicus brief.13 Mindful of the "creative use" of amicus briefs by interested parties,4" Rule 11 of the Texas Rules of Appellate Procedure requires amici to disclose the person or entity on whose behalf the brief is tendered and the source of any fee paid or to be paid for preparing the brief.4 The Rule has been criticized for failing to require disclosure of the author of the filing, "leaving open the possibility for a party's counsel to create the brief and have it signed by an outside attorney[, a] maneuver [that] effectively extends the page limits imposed on the parties. '4 2 In addition, concern has been expressed that the party's counsel may review and modify the amicus filing without apprising the court that it has done so, may handle similar cases that will be impacted by the ruling without so noting, or may be funded indirectly without disclosure.43 2004] C. Ethical Considerations The American Bar Association Model Rules of Professional Conduct require a lawyer to "act with reasonable diligence and promptness in representing a client" and contemplate "tak[ing] whatever lawful and ethical measures are required to vindicate a client's cause or endeavor."44 The Rules also provide that a lawyer should zealously advocate on his client's behalf.4 5 It is the client who determines the objectives of litigation.46 These principles have two basic implications in the context of amicus filings. First, the litigant's counsel may deem it a disservice to his client to urge the court to adopt a broader ruling, lest doing so dilute the impact of the client's primary objective.4 7 The amicus party can fill such a void or complement the range of perspectives presented to the court. Second, like the lawyer who represents a party, the lawyer who represents the amicus party works, within legal bounds, to advance his client's interests. Thus the amicus party's arguments focus on the application of the pertinent law to the amicus. III. THE FREQUENCY AND APPARENT EFFICACY OF AMICUS FILINGS The use of amicus briefing is increasing. In the 1965 to 1966 term of the U.S. Supreme Court, for example, thirty-five percent of cases decided by opinion included amicus filings; in the 1980 to 1981 term, seventy-one percent of such cases had amicus participation; by the 1998 to 1999 term, ninety-five percent had at least one amicus filing.48 Increasingly, too, cases have amicus filings by more than one amicus or group of amici. Some have questioned the utility of amicus participation. Criticism has been targeted primarily on the ground that the amicus party appears as a partisan advocate.4" The efficacy of the role of the amicus curiae party has been characterized as "limited," at least in part on the ground that his service as a friend to the court has been eclipsed by a loss of objectivity.5" Although precise measurements of the impact of amicus submissions on the judiciary are not feasible, Professors Joseph D. Kearney of Marquette University and Thomas W. Merrill of Northwestern University worked to examine the empirical impact of amicus curiaebriefs in the U.S. Supreme Court.5" Kearney and Merrill concluded definitively that the level of participation has increased dramatically over the second half of the last century; notwithstanding a decline in the number of cases that the Court disposed of on the merits during the same period, the number of amicus filings increased by more than 800 percent.52 The academicians also noted that amicus briefs supporting respondents enjoyed greater success rates than those supporting petitioners.5" While amicus briefs cited by the Court appeared no more likely to be associated with the winning side than those not cited by the Court, amicus briefs submitted by "more experienced" lawyers may have been more successful than those filed by "less experienced" ones.54 Dan Schweitzer, Supreme Court Counsel of the National Association of Attorney Generals, opined that "[a] micus briefs unquestionably have an effect on Supreme Court opinions."55 Among several illustrations he cited as to the utility of amicus filings for various purposes, he recounted that during oral argument in Grutterv. Bollinger5,6 a case concerning affirmative action issues, Justice Ruth Bader Ginsburg questioned petitioner's counsel about an amicus brief submitted on behalf of certain retired military officers; several minutes of oral argument were devoted to issues addressed in the brief.5 7 When the Court issued its decision, the amicus' arguments comprised a paragraph of the opinion, and seven other amicus submissions were cited as well.5" The Court specifically noted that the respondent law school's "claim of a compelling interest [was] further bolstered by its amici, who point[ed] to the educational benefits that flow from student body diversity."" Among the Court's citations was an amicus brief submitted by the American Educational Research Association that contended that "numerous studies show that student body diversity promotes learning outcomes, and 'better prepares students for an increasingly diverse workforce and society, and better prepares them as professionals."60 Schweitzer regarded this level of attention to amicus briefs to be relatively aberrational, but noted that "virtually all amicus briefs are read by the Justices and/or their clerks . "...61 In some instances, counsel for amici may even be permitted to present oral argument. In Gideon v. Wainwright6,2 for example, the Supreme Court granted certiorarito consider "the problem of a defendant's federal constitutional right to counsel in a state court[, which had] been a continuing source of controversy and litigation in both state and federal courts."63 The Court allowed, by special leave, the ACLU and the State of Alabama to argue the issue as amicus curiae6. 4 Kathryn Kolbert coordinated the submission of amici briefs on behalf of the ACLU and the Planned Parenthood Federation in Webster v. Reprod. Health Servs.,6" a case considering abortion rights that generated dozens of amicusbriefs. Kolbert noted that "several briefs made overlapping arguments which diluted the FORDHAM INTERNATIONAL LAWJOURNAL overall impact of the collection .... 66 She opined that, nonetheless, "there is little doubt that the pro-choice amici effort both influenced the Court and significantly contributed to the public debate on the abortion question. '"67 IV. PURPOSE OFAMICUS SUBMISSIONS Attorney Bruce Ennis credited amicus briefs with helping to shape court decisions by offering an analytical approach or furnishing factual information the parties did not discuss.68 Ennis states, "A good idea is a good idea, whether it is contained in an amicus brief or in the brief of a party."69 ChiefJudge Judith Kaye of New York opined that [a]mici have unquestionably been important in Supreme Court decisionmaking. Their voices may affect the outcome of petitions for certiorari, and in pending cases they have served to inform the Court of likely repercussions of a decision, as well as to keep it abreast of developing law. The views of [S]tates and other entities expressed as amici have time and again proved influential where rules fashioned for the litigants will likely affect them as well. In instances where the Court has thought that special expertise would be beneficial, or where the Court has not been satisfied that a significant issue would be adequately presented, it has sought out assistance by inviting particular amici. In the Second Circuit, too, amicus briefs have proved useful by identifying larger issues not emphasized by the parties, and by filling a vacuum where representation otherwise is inadequate; that court also has on occasion invited amicus participation. 70 The Supreme Court Rules expressly dissuade the submission of arguments duplicative of those presented by the parties. Rule 37.1 states that the brief "brings to the attention of the Court relevant matter not already brought to its attention by the parties. ''71 Richard Posner, ChiefJudge of the U.S. Court of Appeals for the Seventh Circuit, observed: 66. Kathryn Kolbert, The WebsterAmicus CuriaeBriefs: Perspectives on the Abortion Controversy and the Role of the Supreme Court, 15 AM. J.L. & MED. 153, 157 (1989). 67. Id. 68. See Ennis, supra note 17, at 604. 69. Id. 70. Kaye, supra note 3, at 13. 71. Sup. CT. R. 37.1. 2004] The bane of lawyers is prolixity and duplication, and for obvious reasons is especially marked in commercial cases with large monetary stakes. In an era of heavy judicial caseloads and public impatience with the delays and expense of litigation, we judges should be assiduous to bar the gates to amicus curiae briefs that fail to present convincing reasons why the parties' briefs do not give us all the help we need for deciding the appeal.7 2 One of the ways the federal appellate rules deter amici briefs that merely reiterate those submitted by the primary litigants is through the timing of the filings. The amicus brief is not due on the date the named party's brief is submitted, but may be filed thereafter,7 3 which affords the amicus time to review the party's brief to avoid repetition. A. Amicus Submissions at the Certiorari Stage Amicus submissions serve different purposes at different stages of the proceedings. Those supporting a grant of a petition for certiorarigenerally present one or more of the following arguments: • There is a conflict among the federal courts of appeal and/or among the supreme courts of multiple States. * The issue is one of profound importance. * The decision issued by the court below conflicts with Supreme Court precedents. * The Supreme Court left the issue open when it ruled in prior cases. * There is tension among decisions issued previously by the Supreme Court.74 Thus, such briefs are designed to alert the Court to adverse ramifications were the decision issued by the court below allowed to stand. By illustration, the State of Ohio submitted an amicus brief in City ofBoerne v. Flores7,5 which concerned the constitutionality of the Religious Freedom Restoration Act and its application to denial of a permit to enlarge a church based on an ordinance dealing with historic preservation. The amicus brief argued that the dispute extended beyond issues exclusively relating to zoning regulations because it affected State prison systems. Certiorariwas granted even though there was no extant split in circuit court decisions.76 B. Amicus Submissions at the Merits Stage Amicus briefs submitted at the merits stage, when either the Court has granted a writ of certiorarior the appeal has proceeded as of right, serve myriad purposes. First, the amicus party may offer guidance as to the legal constructs applicable to the case, as when the amicus presents alternative or supplementary arguments to support a conclusion or brings to the court's attention the existence of other pending cases that might bear on the ruling issued. Second, the amicus may be in a position to present empirical factual information that can help inform the court's understanding of the pragmatic impact of its decision. Third, the amicus might persuade a judge by enhancing the credibility of an argument by virtue of the very nature of the amicus party or simply due to the fact that increased attention has been placed on the case in light of the additional involvement of the amicus demonstrating divergent reach of the law. 1. Presentation of Alternative or Supplementary Arguments One of the most important ways amicus curiaeserve the administration of justice is by providing courts with an array of legal rationales that offer either alternative or supplementary grounds on which to premise rulings. Amici thereby assistjudges with their efforts to more fully grasp the applicable substantive law and pragmatic implications of the decisions they craft. Chief Judge Chris W. Altenbernd of the Second District Court of Appeal of the State of Florida observed that [a]micus briefs are best used where the court really does need an objective friend with some expertise. Appellate judges are about the only general practitioners remaining in Florida. We must study the law in all of its breadth. Ultimately, we must rule and possibly create precedent in fields where we have little personal experience or expertise. 77 76. See generally Hares, 521 U.S. at 507. See Schweitzer, supra note 55, at 530. 77. Walbolt & Lang, supra note 2, at 276 n.30 (quoting Chris Altenbernd, Chief Judge, Fla. 2d Dist. Ct. App.). 2004] Because amici are not parties to the case and often represent somewhat disparate interests, they may present arguments for more extensive or more narrow relief than those advanced by the primary litigants. Such amici may be less constrained than the parties by tactical considerations that affect the overall posture of the case. For example, a party may decide to confine his argument to an assertion that the statute in issue is inapplicable to him; an amicus may assert that the statute is generally unenforceable and should be invalidated. Conversely, a party may argue that the statute in issue is unconstitutional; an amicus may have an interest in preserving the law while acknowledging that its application to the party is inappropriate and unlawful. One example of a case in which the amici sought a more narrow ruling was Askew v. Sonson.7 s In that case, the Florida Supreme Court considered the plaintiffs' allegation that their "root of title" had remained of record and unchallenged for more than thirty years.79 The defendants contended that the application of the Marketable Record Title Act against them would be unconstitutional because the lands in issue had been designated for school purposes under an Act of Congress that granted lands to the State of Florida."° The court expressly characterized the briefs filed by the parties and the amici as "excellent," noting: The order requesting additional briefs restated and broadened the questions initially presented, so as to include the application of the marketable record title act to all [S]tate lands, of which section sixteen lands are merely one category. The question framed by the Court encompasses all categories of [S]tate properties, including sovereignty lands. Among the other categories of [S]tate properties are internal improvement lands, swamp and overflow lands, railroad lands, indemnity lands, and Murphy Act lands. The amici curiae urge the Court to reserve ruling on those arguments until they are presented in the context of a proper controversy. In other words, they urge us to confine our ruling to the question initially presented."' The court accepted the amici's contention that the broader question of the statute's application to State-owned lands gener78. 409 S.2d 7 (Fla. 1981). 79. See id. at 7. 80. See id. at 7-8. 81. Id. at 8. ally should be deferred and ruled on a more narrow question. The court noted: It is a wise rule that courts will only determine issues which are based on a genuine controversy, supported by a sufficient factual predicate. This rule is particularly appropriate where complex issues of great public interest are concerned. This Court has stated that it will not address issues, particularly those of constitutional import, which are neither directly presented nor necessary to the resolution of the dispute at hand. 2 An example of a case in which the amici sought to broaden the scope of the court's determination can be found in Braschi v. Stahl Associates Co., which addressed tenants' rights.8 3 In that case, the ACLU represented the named plaintiff, the surviving gay life partner of the prime tenant, on his appeal to the New York Court of Appeals. The plaintiff faced eviction from a rentcontrolled apartment after his partner, the prime tenant, died. The amici curiae emphasized the civil rights aspect of the case and broadened the claim beyond the gay community. For example, The Legal Aid Society argued that its poor clients lived together as families without legal sanction because in many cases they could not afford lawyers to get divorces or adoptions. The City of New York, the Association of the Bar of the City of New York, Community Action for Legal Services, Gay Men's Health Crisis, Lambda Legal Defense and Education Fund and others pointed out to the [S]tate's highest court how the court's ruling would widely impact the community and demonstrated the breadth of the political support for the position. In a landmark decision, the New York Court of Appeals in Braschi, held that family included non-legally recognized relationships for purposes of succession rights to rent controlled apartments.8 4 A corollary point is that an amicus may wish to emphasize a point that received scant attention from the parties, lest the issue be overlooked or relegated to cursory review. The presentation by an amicus of arguments supplementary to those put forth by a party in the suit has two significant purposes. First, the amicus 2004] may effectively provide the court with additional rationales in support of the desired holding, thereby fortifying the court's conviction in its conclusion and buttressing the bases of its analysis. Perhaps, as well, such supplementary analyses may persuade a justice to concur in a plurality opinion on another ground. A notable example of the presentation by amici of an alternative argument is Mapp, in which the Supreme Court considered an appeal by a woman convicted of knowing possession of lewd and lascivious books, pictures, and photographs in violation of Ohio's penal code.85 The appellant challenged the constitutionality of the obscenity statute.86 The ACLU, appearing as amicus, urged the Court to review Wolf v. Colorado, in which the Court previously had held "that in a prosecution in a State court for a State crime the Fourteenth Amendment does not forbid the admission of evidence obtained by an unreasonable search and seizure."87 The Mapp Court observed that "appellant chose to urge what may have appeared to be the surer ground for favorable disposition and did not insist that Wolf be overruled . "..."88Indeed, when counsel for appellant was "pressed" during oral argument as to whether he was urging the Court to overrule Wolf, he "expressly disavowed any such purpose."89 Instead, it was "the amicus curiae, who was also permitted to participate in the oral argument, [who] urge[d] the Court to overrule WolfW" 9 0 which was the ground upon which the majority Court rested its decision to reverse. Ultimately, the Court concluded that "all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissi'91 ble in a state court. 1 Second, an alternative or supplementary doctrinal frame85. See Mapp v. Ohio, 367 U.S. 643 (1961). 86. See id. at 646; see also id. at 672-73 (Harlan, J., dissenting) (stating "the new and pivotal issue brought to the Court by this appeal is whether § 2905.35 of the Ohio Revised Code making criminal the mere knowing possession or control of obscene material, and under which appellant has been convicted, is consistent with the rights of free thought and expression assured against state action by the Fourteenth Amendment. That was the principal issue which was decided by the Ohio Supreme Court, which was tendered by appellant's Jurisdictional Statement, and which was briefed and argued in this Court.") (emphasis in original) (footnotes omitted)). 87. Wolf v. Colorado, 338 U.S. 25, 33 (1949). 88. Mapp, 367 U.S. at 646 n.3. 89. Id. at 673 n.6 (Harlan, J., dissenting). 90. Id. at 646 n.3. 91. Id. at 655. work offered by an amicus may affect the way that the court's ruling is applied to the amicus party. It may influence the disposition of subsequent litigation, even when the rationale is relegated to mere dicta. As Supreme CourtJustice Arthur Goldberg observed, "A traditional function of an amicus is to assert 'an interest of its own separate and distinct from that of the [parties]' . . . . It is 'customary for those whose rights [depend] on the outcome of cases .. .to file briefs amicus curiae, in order to protect their own interests.' Th[e] Court has recognized the power of federal courts to appoint 'amici to represent the public interest in the administration ofjustice."92 This is especially important in the context of amicus briefs submitted on behalf of under-represented litigants, whose positions may not be highlighted adequately in judicial, legislative, and other contexts. Furthermore, such litigants might benefit prospectively from court rulings that effectively deter potential exposure for liability and the ensuing costs and burdens associated with having to defend against claims that otherwise could have been deemed cognizable. One example of a Supreme Court justice's reliance on amicus briefing to frame his opinion is that written for the majority Court by Justice Anthony Kennedy in Romer v. Evans9.3 The Court noted that the Colorado law in issue effectively placed homosexuals "in a solitary class with respect to transactions and relations in both the private and governmental spheres. The amendment withdraws from homosexuals, but no others, specific legal protection from the injuries caused by discrimination, and it forbids reinstatement of these laws and policies."94 Much of the analysis was consistent with the arguments put forth in an amici brief submitted by, among others, Laurence Tribe of Harvard Law School, that the law constituted a per se violation of the equal protection guarantees embodied in the Fourth Amendment. 5 Even when the court rejects an amicus' position, its decision may reflect consideration of the arguments put forth. One illustration of a State court case in which the court's comments 92. United States v. Barnett, 376 U.S. 681, 738 (1964) (Goldberg, J., dissenting) (citations omitted). 93. 517 U.S. 620 (1996). See Lucas, supra note 2, at 1610. 94. Romer, 517 U.S. at 627. 95. See Lucas, supra note 2, at 1609. about the amicus brief substantiated the court's review was Polaroid v. Travelers Indem. Co.,9 6 in which a Massachusetts court addressed issues raised by an amicus when it upheld the refusal by insurers to settle pollution claims of the insured.9" Another purpose of amicus briefs is to apprise a court of the possible consequences of a particular ruling that might not be readily apparent from the context of the proceeding. Amici can serve an important function in this manner by alerting the court to practical, albeit potentially unintended, effects of its decisions in ways that the litigants either have not considered or with which they are not concerned. For example, a ruling might affect a type of party that is not before the court. This potential effect is especially significant in the context of amicus filings by underprivileged litigants, who may be susceptible to having a court fail to appreciate the effects on them or on a not-for-profit organization of a decision issued in a commercial dispute. 2. Presentation of Empirical, Scientific, or Other Technical Data In addition, amicus submissions at the merits stage can furnish the court with empirical factual information that is not necessarily contained Within the appellate record. Such matter is known colloquially as a "Brandeis Brief' 8 after a brief filed by Louis Brandeis in Muller v. Oregon.9 9 In that case, Louis Brandeis had marshaled evidence about the hazardous effects of long work hours on women's health and presented it to the Court in support of an argument that the public interest would best be served if the number of hours worked by women was regulated. Thereafter, the Supreme Court relied on Brandeis Briefs in such landmark rulings as Brown v. Board of Edu. of Topeka,'0 0 in which the Court cited several social science publications to support its conclusion that segregation generates a feeling of inferiority among African-Americans. In Roe v. Wade,'' the Court relied on numerous submissions by legal, medical, and religious organizations to discuss the physical risks of abortion at various 96. 610 N.E.2d 912 (Mass. 1993). 97. See generally Lucas, supra note 2, at 1610. 98. Such factual information also has been referred to as "legislative facts." 99. 208 U.S. 412 (1908). 100. 347 U.S. 483 (1954). 101. 410 U.S. 113 (1973). 2004] 8 3 Another means of potential distortion may occur injurisdictions in which judges are elected, such as Texas. One commentator expressed concern that "an interest group - albeit in an amicus brief - may dangle its support in front of the judge by communicating its concern regarding how the court will decide a particular issue.""8 4 With rare exceptions,1 8 5 however, amici typically are opposed by other amici. Thus, countervailing viewpoints are argued to the court. This practice highlights the importance of encouraging pro bono representation of not-for-profit groups, indigent litigants, and other under-served groups and persons to ensure that their viewpoints receive attention and are not overshadowed by amici who have more resources but are offering countervailing positions. Indeed, despite the criticism of the amicus process as tantamount to sanctioned lobbying, its utility has been recognized as a tool for protecting the underprivileged; recall the commentator who characterized the amicus party as the "vindicator of the politically powerless.' 8 6 C. Reciprocity of Submissions In the event that non-U.S. courts are receptive to the submission of amicus briefs by U.S. citizens or U.S.-based parties, there likely will be an expectation of reciprocity by tribunals in the United States. Some U.S. courts already have accepted such submissions; one example is the recent filing of amicus briefs in Atkins v. Virginia,8"7 in which the Supreme Court ruled that executing mentally retarded defendants constituted cruel and unusual punishment.18 8 In determining the Eighth Amendment violation, the Court specifically noted the "national consensus" 183. Kearney & Merrill, supra note 51, at 823. 184. Sorenson, supra note 38, at 1248. 185. One such exception isJaffee v. Redmond, 518 U.S. 1 (1996), in which the Court considered whether statements made by a police officer to her therapist during counseling sessions after a fatal shooting were protected from compelled disclosure in a federal civil action brought by the family of the deceased. Fourteen briefs were submitted on behalf of the respondent, but none was submitted in support of the petitioner. The Court affirmed the appellate decision and held that the communications with the therapist were privileged under Rule 501 of the Federal Rules of Evidence. See id. at 18. 186. See Lowman, supra note 9 at 1245. 187. 536 U.S. 304 (2002). 188. See id. against such executions, citing an amicus brief submitted by the European Union."8 9 The amicus had pointed out that "[w]ithin the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved ... ."190 Schweitzer pointed out that the case illustrates the utility of amicus submissions as a means of amplifying a point that received more cursory attention in a litigant's submission, noting that while the European Union's brief discussed the argument "at length, . . .Atkins' brief made th[e] point in a mere sentence and footnote."191 When the U.S. Supreme Court considered affirmative action issues in Grutterv. Bollinger,two concurring justices observed that a race-conscious program having "'a logical end point' . . . accords with the international understanding of the office of affirmative action. 11 02 For example, The International Convention on the Elimination of All Forms of Racial Discrimination, ratified by the United States in 1994, endorses special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them, for the purposes of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms.1"3 Yet another example of such amicus filings was seen in connection with the proceedings involving detentions at GuantAmamo Bay, Cuba. In the consolidated cases of Rasul v. Bush and Al Odah v. United Sttates,194 a bipartisan coalition of national and international NGOs filed an amicus brief in support of the petitioners. 9 ' They argued collectively that the federal 2004] courts have jurisdiction to hear the habeasclaims of the petitioners, hundreds of people held by the United States at its military base in Guant~mamo Bay.!96 The amici also offered multi-national legal perspectives about the confinements, arguing that Israeli, British, and international law all required review of the legality of the executive detentions."97 Another amicus brief was submitted by Abdullah A1-Joaid, a Saudi Arabian citizen who is the brother of a Saudi national confined at Guantimamo Bay. 198 Yet another amicus brief was filed in support of the petitioners by 175 members of both Houses of Parliament of the United Kingdom, 199 and still another brief was filed by the Commonwealth Lawyers Association.2 °° Developments in online and other forms of communication and increased travel (including more opportunities for international dialogue among judges) have contributed to the globalization of consideration of legal process and the evolution of statutes and jurisprudence. Accordingly, cross-pollination and dialogue between jurisdictions is increasingly occurring. As judgments in different countries increasingly build on each other, mutual respect and dialogue are fostered among appellate courts. Judges around the world look to each other for persuasive authority, rather than some2 0j1udges being "givers" of law while others are "receivers." U.S. courts may find it useful to accept amicus briefs from non-U.S. nationals for the same reasons that filings by U.S. amici help non-U.S. and multi-national courts. Such briefs enhance the range of perspectives brought to the court, present diverse cultural and empirical experiences, and provide substantive expertise on matters of non-U.S. law. Consideration by the U.S. Supreme Court of matters of nonU.S. law and norms has not been without its critics. In Lawrence v. Texas, the Supreme Court struck down state criminal sodomy laws.2 ° 2 The majority opinion took into account a case decided by the European Court of Human Rights.2 °" ButJustice Antonin Scalia lamented in dissent that [c]onstitutional entitlements do not spring ...into existence, as the Court seems to believe, because [non-U.S. N]ations decriminalize conduct. . . . The Court's discussion of.. . [non-U.S.] views (ignoring, of course, the many countries that have retained criminal prohibitions on sodomy) is therefore meaningless dicta. Dangerous dicta, however, since f"athsihsioCnsouornt.A..msehroicualnds.n"o20t4impose [non-U.S.] moods, fads, or But Justice Sandra Day O'Connor noted that while the Supreme Court generally has been reluctant "to look to international or [non-U.S.] law in interpreting our own Constitution and related statutes," the Court has "looked to international-law notions of sovereignty when shaping our federalism jurisprudence and to international-law norms in boundary disputes between [U.S. S]tates. ' '20 5 She indicated that she anticipated increasing attention to international legal standards in U.S. contexts; because issues of "international and [non-U.S.] law are being raised in our courts more often and in more areas than our courts have the knowledge and experiences to address," she emphasized the importance of "expanded knowledge in this field. '2 6 U.S. Supreme Court Justice O'Connor characterized the relevance of conclusions reached by other Nations and the international community as "transjudicialism. ''20 Such norma2004] tive principles, she noted, "should at times constitute persuasive authority in [U.S.] court[s]," notwithstanding that such laws are rarely binding on U.S. tribunals.2°8 One way consideration of non-U.S. law by the U.S. Supreme Court has been accomplished is through the amicus device. In the context of international human rights issues in particular, an amicus brief was submitted by a group of international legal scholars and human rights specialists in support of a federal civil rights action pursuant to the Violence Against Women Act.2 09 The amicus emphasized the International Covenant on Civil and Political Rights, which had been ratified by the United States, and contended that the United States was obligated to provide remedies for victims of gender-based violence. 210 Likewise, in Nguyen v. INS, Equality Now submitted an amicusbrief in connection with the constitutionality of a federal law that imposed disparate requirements on U.S. male and female citizens who sought to confer citizenship on children born outside the United States. 2 1' As Professor Schneider observed, however, "growing invocation of transnational sources by lawyers and consideration by judges does not solve the vexing questions of how these laws should be integrated into our complex system of federalism and what weight they should have, if considered. 212 D. Principles of Comity and Respect for CulturalDiversity Decisions issued by non-U.S. courts that are repugnant to the U.S. system of justice nevertheless may be legally countenanced in the Nation in which they were issued. Conversely, efforts to enforce certain decisions by non-U.S. tribunals in the United States may be challenged on constitutional grounds. One notable example is the resistance non-U.S. litigants have encountered in connection with efforts to enforce libel verdicts secured in courts that do not have legal standards commensurate with U.S. First Amendment jurisprudence. Thus, in Matusevitch v. Telnikoff the court granted summary judgment to a writer 208. Id. 209. See Brzonkala v. Morrison, 529 U.S. 598 (2000) (cited by Schneider, supra note 201, at 709). 210. See Schneider, supra note 201, at 709-10 & n.122. 211. See 533 U.S. 53 (2001). 212. Schneider, supranote 201, at 700. against whom a British court had issued a libel judgment. 2t3 The U.S. court determined that the plaintiff, a public figure, was required to obtain recognition of the judgment in order to enforce it.2 14 But the court also determined that under the Uniform Foreign-Money Judgments Recognition Act of 1962,215 the plaintiff could not do so because British libel standards were repugnant to the public policies of the United States and the State of Maryland. 6 In another case, however, Dow Jones & Company ("Dow Jones"), a U.S. corporation, failed to secure a declaratory judgment in a New York federal court that an article it had published was not defamatory as a matter of U.S. law.2 y Specifically, Dow Jones had argued that an action for defamation based on the article would be summarily dismissed under the federal and State constitutional law of any U.S. jurisdiction because the publication comprised only non-actionable expression of opinion based on true statements and contained no facts capable of being proved false.2 1 ' However, the U.S. Court of Appeals for the Second Circuit affirmed the trial court's holding that the action was non-justiciable because it was not ripe for adjudication.2 19 The court below declined to exercise jurisdiction to hear the case under the Declaratory Judgment Act on the grounds that no useful purpose would be served by a declaration and that it would contravene principles of international comity.12 Concerns about transgressing principles of comity or trepidation about subverting or usurping. diplomatic and treaty-making efforts through the amicus device in non-U.S. courts are largely absent when the United States is a signatory to the applicable treaty that established the court because jurisdictional and standing issues effectively have been accommodated. In some situations, as is the case, for example, with the Inter-American Commission on Human Rights, alleged victims must have exhausted U.S. remedies at the national level as a prerequisite for consideration of their petitions.2 2' As one of the Commission's lawyers observed, "This requirement is crucial and underlines the general principle of international law that the international system plays a subsidiary role and is triggered by the failure of national law to function properly."222 Therefore, the institutional structure of the proceeding presupposes prior involvement by participants in courts other than the adjudicating multinational tribunal to which the amicus briefs are submitted. The offer of positional statements by U.S. parties is legitimized and receptivity to non-U.S.-based amicus briefs likely will fare relatively well in such multi-national courts. When the matter is pending in a local court, a brief submitted by a U.S. citizen or entity sometimes can still be very useful, most notably by offering another perspective or detailing experience with the analysis of a similar or related issue. This role is especially important as to a number of matters involving the public interest. Even when the arguments advanced by amici are not dispositive, they can be instructive. The solicitude paid by the U.S. legal system to freedom of speech, for instance, furthers a free press, helps deter and expose governmental corruption and other malfeasance, and perpetuates robust and open dialogue about political, scientific, literary, artistic, and other matters of inherent importance to the populace. Libel law has developed jurisprudentially, with a significant constitutionally-rooted gloss, and thus provides a framework for the resolution of competing interests in the free flow of information and protection of reputation. An amicus brief sub220. See DowJones I, 237 F. Supp. 2d at 439, 443-46. 221. See Cerna, supra note 131, at 200. 222. Id. mitted by a member of a U.S. press entity to a non-U.S. court adjudicating efforts to censor or impose sanctions on journalists who reported about political issues could offer significant guidance to the court. Current U.S. law on the public official/public figure and private figure dichotomy, which was addressed most prominently in cases that spanned a decade before the U.S. Supreme Court, could be succinctly summarized to a non-U.S. tribunal. 22' Legislation enacted by the U.S. Congress to address efforts to hold Internet speech providers accountable for online defamatory speech created by third parties, 224 and the ensuing court decisions that applied the statute, 2 25 likewise could assist non-U.S. judges as they grapple with the appropriate allocation of liability. Nevertheless, in some cultures and under certain circumstances, U.S.-based amici risk offending a court if they submit unsolicited briefs grounded in U.S. policy or law and presenting arguments as superior to locally-evolved precedent or norms. Although amici in U.S. courts generally need not satisfy traditional notions of standing otherwise imposed on the original litigants or intervenors, such amici typically demonstrate some basis for participating in the pending litigation that suggests an interest in the outcome of the determination by the court. These interests attenuate when amici appear before a court that lacks jurisdiction to enforce a ruling against the amici who seek to opine about the matter. It is especially important, therefore, that such amici, while zealously advocating fundamental principles of justice, remain sensitive to the normative principles governing the adjudicating tribunal. E. Transparency of Interests Critical to the fair administration of justice - as well as to the nearly equally important objective of the appearance of the fair administration of justice - is transparency of the nature of interested parties. The U.S. Supreme Court has appropriately 2004] established requirements for disclosure about the nature and sponsorship of the amici parties and the influence of the primary litigant on the brief submitted.22 6 Although latent biases still may exist, as when an industry trade group is anonymously funded by a litigant, disclosure rules such as those implemented by the Court deter support for a party that cannot be recognized and taken into account by the tribunal. Even when non-U.S. or multi-national court procedures do not require such disclosures by amici, a practice of transparency should be adopted. Those who represent important interests of others can help legitimize their position by identifying the basis on which they proceed in the court. In addition, disclosures by amici enhance their credibility before the court, both by openly identifying interests and potential biases and by negating any biases that a court might erroneously or presumptively infer. F. The Proffer of Scientific and Other Technical Data That Dehors the Record The submission of empirically-based social science and other data that dehors the record has been the subject of controversy.227 The appellate process is designed to contain factual matters that the higher court can review, focusing its attention on factual evidence that has been adequately tested through the adversarial process in the court(s) below. The presentation of scientific or other technical studies by an amicus has been questioned as circumventing this process. Nevertheless, it is important to recognize that even in a Brandeis Brief, the amicus typically is not offering corroborative or rebuttal evidence directly probative of the parties' dispute, but rather is presenting social science or other information designed to inform the court's decision generally. Thus, for example, in Roe v. Wade, the Supreme Court noted that Appellants and various amici refer to medical data indicating that abortion in early pregnancy, that is, prior to the end of the first trimester, although not without its risk, is now relatively safe. Mortality rates for women undergoing early abortions, where the procedure is legal, appear to be as low as or 226. See supra notes 35-37 and accompanying text. 227. See supra notes 98-125 and accompanying text. lower than the rates for normal childbirth. 228 The amici's data was neither designed nor considered to test the plaintiff's specific allegations that she "could not afford to travel to another jurisdiction in order to secure a legal abortion under safe conditions. 229 Moreover, it is clear that judges routinely take into account extra-judicial matters when they formulate their opinions. This is the case with respect to the development of various legal doctrines. By illustration, much of U.S. common law privacy jurisprudence derives from a law review article written by Samuel Warren and Louis Brandeis published in 189020 and a taxonomy of causes of action fashioned by William Prosser.23' In 1977, the Restatement (Second) of Torts outlined the same cluster of invasions of privacy rights. 232 All of these sources have been relied on extensively by courts adjudicating privacy disputes. Courts also may review factual data obtained in ways other than Brandeis Briefs. In Mapp, the Supreme Court not only considered briefing and argument submitted by amicus ACLU,233 but the Court also took into account the remarks of Herbert Hoover, then Director of the Federal Bureau of Investigation. Although the federal courts had operated under the exclusionary rule for almost a century before considering a similar issue in Elkins v. United States,214 "'it ha[d] not been suggested either that the Federal Bureau of Investigation ha[d] thereby been rendered ineffective, or that the administration of criminal justice in the federal courts ha[d] thereby been disrupted.'" 23 5 In considering the empirical impact of its prior rulings and those of the state courts, the Mapp Court noted that "[t]here is no war between the Constitution and common sense. 236 Indeed, judges often are influenced by a wide range of scholarly and other writings, even when they do not necessarily 228. Roe v. Wade, 410 U.S. 113, 149 (footnote omitted). 229. Id. at 120. 230. See Samuel D. Warren & Louis Brandeis, The Right to Privacy, 4 HARV. L. REV. 193 (1890). 231. See William L. Prosser, Privacy, 48 CAL. L. REV. 383, 389 (1960). 232. See RESTATEMENT (SECOND) OF TORTS § 652. 233. See supra notes 85-91 and accompanying text. 234. 364 U.S. 206 (1960). 235. Mapp v. Ohio, 367 U.S. 643, 660 & n.10 (1961) (citing Herbert Hoover, Director of the Federal Bureau of Investigation). 236. Mapp, 367 U.S. at 657. attribute the reasoning or phrasing to another. Among the most well-known of Justice Harry Blackmun's pronouncements is his endorsement of affirmative action in Regents of the Univ. of Cal. v. Bakke that "[i] n order to get beyond racism, we must first take account of race. There is no other way." 23v The New York Times reporter Linda Greenhouse spent several weeks reviewing Justice Blackmun's collected papers in the Library of Congress and discovered in his file on the Bakke case an article on affirmative action. The article, which had been published in the November 1977 issue of the Atlantic Monthly, was marked by Justice Blackmun as having been read on May 6, 1978, "in other words, as he was preparing the opinion that was issued the next month ...."2 The article's author, McGeorge Bundy, former National Security Advisor and Dean of Harvard, had written: "To get past racism, we must take account of race. There is no other present way. "239 Justice Blackmun's opinion did not attribute his apparent use of the quotation, however. Factual information similarly comes to the Court's attention independently of the parties' record on appeal. As of the writing of this Article, the Supreme Court has been considering the question of whether U.S. President George W. Bush's administration improperly declared Jos6 Padilla an "enemy combatant" and wrongfully detained him. Weeks after briefing was completed and oral argument concluded in the case, the Department of Justice declassified and released documents that reportedly supported the government's position that Padilla had "plot[ted] to detonate a radiological 'dirty bomb' or blow up an apartment building ...."240 Although "the new material is not expected to be entered into the record,"24 1 it might nonetheless "have 'an inevitable spillover in unduly influencing the high court just as it nears a decision in the case,'" noted counsel for amicus the National Association of Criminal Defense Lawyers. 42 Access to press reports and even to the newly-released material itself might influence the Court - or fail to persuade it - in ways neither Padilla nor the amici can contest or possibly even know. Is it conceivable that the U.S. Supreme Court is unmindful of the abuses at the Abu Ghraib, Iraq prison that were reported by the press as the Court deliberates about the legality of executive detentions at Guantdmamo Bay, Cuba in Rasul v. Bush and Al Odah v. United States? Indeed, in an open letter to U.S. President George Bush, Britons Shafiq Rasul and Asif Iqbal, who had been held at GuantAmamo Bay, accused U.S. military guards of subjecting them to abuses similar to those perpetrated in the Abu Ghraib prison. 24 3 In establishing standards for military detention of prisoners in the pending case, it seems highly likely that the justices will recall the vivid images reported in the press of the abuses at Abu Ghraib. Likewise, a memorandum prepared for U.S. Secretary of Defense Donald Rumsfeld in March 2003 concluded that President Bush was not bound by either an international treaty that proscribes torture or by federal anti-torture prohibitions.244 When the memorandum was made public in June 2004, The New York Times noted that the lawyers who drafted the memorandum contended that any torture committed at Guantdnamo Bay would not violate the federal statute "because the base was under [U.S.] legal jurisdiction and the statute concerns only torture committed overseas. '245 The newspaper observed, "[t] hat view is in direct conflict with the position the administration has taken in the Supreme Court, where it has argued that prisoners at Guantinamo Bay are not entitled to constitutional protections because the base is outside [U.S.] jurisdiction."24 6 While public attention to these issues is critical, it appears that the Court's consideration of these issues may be grounded in sources other than those submitted to the Court. Judges naturally bring their experience and recollections to the matters they adjudicate and it is not necessarily inappropriate for courts to be influenced by extra-judicial matters simply because they are outside the record. 243. See, e.g., Suzanne Goldenberg, et al., GuantdmamoAbuse Same As Abu Ghraib, Say Britons, GUARDIAN, May 14, 2004, at 1. 244. See, e.g., Neil A. Lewis & Eric Schmitt, Lawyers Decided Bans on Torture Didn't Bind Bush, N.Y. TIMES, June 8, 2004, at Al. 245. Id. 246. Id. The amicus process, though, has laudable procedural, ethical, and disclosure requirements that sometimes may be lacking in certain press reports and other sources. Amicus filings offer a mechanism to influence the court in a fashion open to scrutiny by the primary litigants and the public at large. Judges are positioned to premise their decisions on empirically-founded or statistically significant data, rather than having to resort to potentially distorted personal impression or mere recollection. Sources of persuasion are thereby better known to the public and to those interested in the outcome of the proceeding and are subject to challenge or endorsement. Amicus briefs are submitted through a prism of procedural requirements that demand (or should demand) revelation of matters pertaining to possible biases, such as sources of funding for the briefs. Participation by amici who support the public interest is especially critical to ensuring that such viewpoints receive adequate attention. Furthermore, the amicusdevice in such circumstances offers a critical means by which positions that disserve the under-represented public can be viably contested. When such participation takes the form of a Brandeis Brief, disclosure requirements should be more extensive. The amicus litigant should be expected to explain the methodology utilized to obtain the proffered data and disclose whether the findings put forth are statistically significant. Directly conflicting studies known to the amicus should be identified, just as an amicus party would be expected to disclose in connection with a legal argument that the decision upon which he relies has been reversed by an appellate court. Moreover, disclosure requirements pertaining to funding should extend beyond the specification of persons or entities who financially supported the submission of the brief and identify as well those who sponsored the underlying research. Such transparency would help enable assessment by opposing litigants, including opposing amici and the judicial arbiter, of the credibility, reliability, and relevance of the data proffered. Pro bono support of public interest amici seeking Brandeis Brief-type participation is especially important to the fair administration of justice. Unlike an amicus filing premised exclusively on matters of legal interpretation, a Brandeis Brief may necessitate research investigation. Securing factual support for a position often may be more costly and more cumbersome than undertaking legal research, thereby requiring a greater commitment of financial and other resources. The amicus device allows a legitimate and appropriate way for persons or groups with a lower threshold level of interest to meaningfully participate in the litigants' dialogue with the court. In contrast to legislative endeavors, direct lobbying efforts or other direct communications with judges in order to influence the outcome of litigation typically are not available options. Amicus briefs can be submitted by diverse factions in a controversy in order to cogently express viewpoints in connection with the court's deliberations about a case. VII. A MODEL FOR PRO BONO AMICUS PARTICIPATION IN NON-U.S. AND MULTI-NATIONAL TRIBUNALS The submission of amicus curiae briefs should be encouraged by non-U.S., multi-national, and U.S. courts. The primary reason that courts should be receptive to such filings is that they can help advance the judiciary's ultimate objective of issuing principled, reasoned decisions that are premised on adequate consideration of competing interests. Additional briefing helps ensure that more perspectives are considered, thatjudicial pronouncements do not have unintended consequences, and that court rulings fairly contemplate (or pointedly exempt) application to persons or groups who should not be covered by the decisions. U.S. parties may perhaps be in a position to offer a perspective from experience, perhaps because U.S. jurisprudence may have considered the issue or because a public interest group or other organization may have deliverated about the underlying policies or conducted relevant empirical research. Courts, including non-U.S. and multi-national tribunals, regularly grapple with the fashioning of legal precepts that have expansive, and thus predictive, application. Justice Harlan admonished that "it is the task of the law to form and project, as well as mirror and reflect[; thus] we should not, as judges, merely recite the expectations and risks without examining the desirability of saddling them upon society. ' 24 7 Nearly a century ago, the U.S. Supreme Court commented, "Legislation, both statutory and constitu247. United States v. White, 401 U.S. 745, 786 (1971) (Harlan, J., dissenting). tional, is enacted ... from an experience of evils .... [But] its general language should not ... be necessarily confined to the form that evil had theretofore taken .... [A] principle to be vital must be capable of wider application than the mischief which gave it birth. 24 8 By adding to the scope and diversity of perspectives to which the court has access, amici assist the judiciary as it works to fashion more durable pronouncements because amici can sensitize judges to the interstitial application of nuanced phrasing of rulings that might otherwise escape notice. Robust speech, even when conflicting and cacophonous, enhances the "marketplace of ideas" 24 9 from which the court can divine and craft principled analysis. It should not be surprising that the highest volume of amicus filings are in cases involving profound matters of privacy and social policy, such as those considering end-of-life issues. 25 ° A non-U.S. court that is called upon to adjudicate such issues without the benefit of amicus submissions presumably faces a more daunting task. As the New Jersey Supreme Court stated when it considered an issue of "transcendent importance, involving questions relating to the definition and existence of death, 251 when such issues do arise, "[l]aw, equity and justice must not themselves quail and be helpless in the face of modern technological marvels presenting questions hitherto unthought of." ' 2 5 2 Diverse sources of perspective and experience help courts fashion decisions in a deliberative and well-founded manner. These considerations are particularly important in the context of matters that affect the public interest and in cases that adjudicate the rights of under-represented persons or groups that otherwise might have their concerns or advocacy overshadowed by opposing litigants with better resources. Absent submissions by amici in support of their positions, courts might lose sight of arguments favoring underprivileged litigants or be inadequately directed to focus on competing considerations that af248. Weems v. United States, 217 U.S. 349, 373 (1910). 249. See, e.g., Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting). 250. See supra notes 122-24 and accompanying text. 251. In re Quinlan, 355 A.2d 647, 652 (NJ. 1976), cert. denied sub nor. Garger v. NewJersey, 429 U.S. 922 (1976). 252. Id. at 665. fect them. In non-U.S. locales where public interest organizations have not been established or have not matured to the point of adequately serving these interests, the need for pro bono assistance by U.S. and other amici is even more acute. Nevertheless, unfettered entitlement to file amicus briefs in the absence of procedural and other safeguards risks manipulation of the process to the detriment of the very litigants most deserving of protection and support. Accordingly, while amicus filings should be encouraged, both the approach and the requisite procedural requirements should be considered. When participation by U.S. litigants is contemplated in multi-national tribunals, as when the United States is a signatory to a treaty conferring jurisdiction on U.S. citizens, concerns about participation by U.S.-based amici dissipate. In other circumstances, however, the U.S. amicus may want to participate in the process while evincing respect for the jurisdiction's law and culture. One meaningful way that civil rights and other social justice causes can be furthered is through pro bono representation not just of litigants but also of amici. A useful model for advancing the interests of under-served persons and organizations in nonU.S. and multi-national courts can be found in an amicus brief that offers the U.S. view contextualized within an international perspective. This method may be especially valuable when the amicus is not aligned, in whole or in part, with either party. This approach also comports with U.S. legal paradigms about the proffer of expert testimony to assist the court on matters relating to non-U.S. law. The Federal Rules of Civil Procedure specifically contemplate the admissibility of such expert testimony.253 Indeed, in determining a matter of non-U.S. law, a U.S. court may consider "any relevant material or source . . .whether or not submitted by a party or admissible under the Federal Rules of Evidence. '254 A federal court may apply non-U.S. law in this situation even when neither party so requests.255 A brief that explains U.S. jurisprudence and the policies un253. See FED. R. Civ. P. 44.1 254. Id. 255. See, e.g., Vishipco Line v. Chase Manhattan Bank, N.A., 660 F.2d 854 (2d Cir. 1981), cert. denied, 459 U.S. 976 (1982). derlying due process rights for criminal defendants, for example, might well assist a non-U.S. or multi-national court assess the inherent fairness of the manner in which a defendant has been prosecuted. By offering an established analytical framework for the adjudication of the charges, the amicus may successfully furnish principles for adoption - albeit even with some modification - by the non-U.S. tribunal. One notable recent illustration of this approach can be fRoouhnrmdosiner tohfe"LcaaNseacoi6fnM"NauewriscpioapHerervr.eTraheURlleopaubalnicdoFfCeronsdtanRVicaarg25a6s ("La Nacin case"). There the Open Society Justice Initiative submitted an amicus curiaebrief in support of the application by the Inter-American Commission on Human Rights to order Costa Rica to revoke the criminal defamation conviction of Mauricio Herrera Ulloa "and bring its criminal libel and insult laws in line with international standards. 257 The Open Society Justice Initiative amicus brief pointed out the requirements of Article Thirteen of the American Convention and the standards of the European Court of Human Rights, as well as relevant legal principles of Argentina, Australia, Germany, India, Japan, New Zealand, Pakistan, the Philippines, South Africa, and the United Kingdom.258 The Committee to Protect Journalists ("CPJ") also submitted an amicus curiaebrief to the Inter-American Court of Human Rights in support of the Costa Rican journalist, likewise objecting to his conviction of criminal defamation.259 Joining CPJ in the amicus effort were The Associated Press, Cable News Net256. Case No. 12.367, [2001] Inter-Am. C.H.R. Report No. 128/01. 257. Brief as Amicus Curiaeof Open Society Justice Initiative in Support of the Inter-American Commission on Human Rights' Application at 1 [hereinafter Justice Initiative Brief], Mauricio Herrera Ulloa and Fernn Vargas Rohrmoser of "La Nacitn" Newspaper v. The Republic of Costa Rica, Case No. 12.367 (Inter-American Court of Human Rights, submitted May 2004) . 258. See id. at 7-30. 259. See Brief as Amici Curiae of the Associated Press, Cable News Network LP, LLLP, El Comercio, Committee to Protect Journalists, the Hearst Corporation, the Miami Herald Publishing Company, El Neuvo Dia, La Prensa, the Reforma Group, Reuters Ltd, El Tiempo and Tribune Company in Support of Mauricio Herrera Ulloa and Fernan Vargas Rohromoser, Mauricio Herrera Ulloa and Ferndn Vargas Rohrmoser of "La Nacidn" Newspaper v. The Republic of Costa Rica, Case No. 12.367 (InterAmerican Court of Human Rights, submitted Feb. 18, 2004) , available at http://www. cpj.org/news/2004/Costal9febO4_AmicusBrief.pdf (last visited Nov. 2, 2004) [hereinafter CPJ Brief]. law. work LP, LLLP, El Comercio, El Nuevo Dia, El Tiempo, The Hearst Corporation, La Prensa,The Miami Herald Publishing Company, The Reforma Group, Reuters Ltd, and the Tribune Company. 26 ° These amici, represented on a pro bono basis by Debevoise & Plimpton LLP,26 ' argued that Costa Rica's criminal conviction of the journalist violated international standards of defamation 26 2 This approach also comports with Judge Posner's elucidation of one of the key purposes that an amicus serves when the amicus has "unique information or perspective that can help the court beyond the help that the lawyers for the parties are able to provide." 26 3 The amicus briefs filed by the Open Society Justice Initiative and CPJ broadened the perspectives put before the Inter-American Court of Human Rights and enabled it to consider how liability for criminal libel is analyzed by several other legal systems. In July 2004, the court ordered Costa Rica to annul the conviction of the reporter, "emphasiz[ing] that public officials and public figures must be more open to criticism than private individuals . . . and [holding] that the Costa Rican trial court had wrongly forced the reporter to prove the truth of statements that originally appeared in another publication. '26 4 Amici counsel characterized the former point as "a tenet that many Latin American legal systems have been slow to recognize, 26' a point the amici helped highlight for the court. The amici's lawyers further noted that "[u]ntil the last several years, it was widely accepted in Latin America that government officials received greater protection from criticism by the press than private individuals." 2 66 Even when U.S. amici are not participating in a multi-national court established by a treaty with jurisdiction over the amici, participation by amici curiae in human rights and other public interest contexts can help further intrinsic principles of justice. As well, the presentation by the amici of an array of multi-national legal approaches also serves to dilute a potential negative perspective that a U.S.-based organization presumptuously seeks to have a court adopt the laws or jurisprudence of the United States. Furthermore, the argument that numerous other nations' laws already have recognized the position advanced by the amici buttresses their position, as was the case when the Open Society Justice Initiative contextualized its argument within an international consensus on the issue. U.S.-based amici can serve a valuable function even when they premise arguments exclusively on federal or state law. They can explain the historical experience of U.S. jurisprudence, perhaps by expounding on rationales that have been discredited by courts in favor of principles that evolved through examination of the empirical impact of earlier rulings. Concerns about the presumptuousness of appearances by U.S. amici may attenuate in connection with the submission by U.S. amici of Brandeis Briefs. In such cases, there may be a greater tendency by a tribunal to recognize that factual support for the position advanced may not be available from other sources because investigation and research had not been undertaken elsewhere. A countervailing consideration is that certain factual investigation, such as that involving social science research, may encompass cultural norms unique to U.S. society. U.S. amici may offer perspectives while remaining sensitive to disparate cultural practices and experiences. This approach is somewhat analogous to the U.S. federal system, which precludes the admission of expert testimony on matters of U.S. law.267 When non-U.S. law is at issue, however, a 266. Id. at 42-43 (emphasis in original). 267. See FED. R. EVD. 702; see also Nieves-Villaneuva v. Soto-Rivera, 133 F.3d 92, 99 federal court may admit testimony from an expert as to the law of another country. 26 8 Thus, the U.S. paradigm accommodates the solicitation of testimony by experts on matters of non-U.S. law, even as it recognizes the U.S. judge as the paramount determinant of U.S. law issues. Because U.S. amici are not proffering expert testimony on matters of another nation's sovereign law, they are not presumptively foreclosed from arguing how another country's law should be interpreted or applied. But when the U.S. amici participate to elucidate U.S. legal principles (which are a matter of non-U.S. law to the adjudicating tribunal), the amici's perspectives on the U.S. experience may well constitute the "unique information or perspective" envisaged byJudge Posner.269 Procedural requirements should be imposed on amici, even if such requirements effectively are self-imposed absent explicit court rules. Thus, amici should disclose the nature of the amici parties, any meaningful authorship by a party to the litigation, and the sources of funding for the amicus submission, including the sponsorship of any empirical research. 27 ° Such disclosures should presumptively apply as well, for example, when a primary litigant party receives extensive funding for his filing from another, including from a U.S.-based entity. The Open Society Justice Initiative expressly noted in its amicus brief submitted in the La Naci6n case that it is an organization that pursues law reform activities grounded in the protection of human rights, and contributes to the development of legal capacity for open societies. The Justice Initiative combines litigation, legal advocacy, technical assistance, and the dissemination of knowledge to secure advances in five priority areas: national criminal justice, international justice, freedom of information and expression, equality and citizenship, and anticorruption. Its offices are in Abuja, Budapest, and New York.27' The Open Justice Initiative also informed the court, both by so (1st Cir. 1997) (stating, "It is black-letter law that 'it is not for witnesses to instruct the jury as to applicable principles of law, but for the judge.'") (citations omitted). 268. See FED. R. Civ. P. 44.1. 269. See Ryan v. Commodity Futures Trading Comm'n, 125 F.3d 1063 (7th Cir. 1997). 270. See supra notes 35-37 and accompanying text. 271. Justice Initiative Brief, supra note 257, at 2. Indeed, the amicus' Statement of Interest comprised more than another page of its brief. See id. noting on its brief and by so stating in a cover letter, that it was assisted in the preparation of the brief by the New York-based law firm Simpson Thacher & Bartlett LLP, which acted as of counsel on a pro bono basis. 272 Another important disclosure concerns explanation of the methodology utilized by amici proffering scientific or other technical data, such as in the form of a Brandeis Brief. In addition, sources of the funding for the research should be disclosed. Such transparency measures enable the court to more accurately scrutinize possible biases and interests not otherwise readily apparent from the mere identity of the amicus. CONCLUSIONS Non-U.S. and multi-national courts should be receptive to participation by non-U.S. amici. Such participants should respect principles of comity and normative cultural diversity while working to advocate principles of fundamental fairness in the adjudicatory process and the application of inherent principles of justice. Tension between these objectives may exist, but it behooves amici appearing in non-U.S. and multi-national courts to prioritize efforts to promote justice and the public interest over an attempt to harmonize international law merely for the sake of consistency with U.S. statutes and jurisprudence. The partisan nature of many amici briefs is neutralized by requirements of disclosure as to interest, authorship, and sources of funding, and is legitimized by counter-point party and amici submissions and by the role of judges and clerks as impartial arbiters. But partisanship is important in the context of advocating on behalf of public interest causes, both as a means of urging justice for underprivileged factions and in order to rebut opposing positions. Pro bono representation of public interest amici is especially important in light of the increasingly common practice of filing amicus briefs, support for which typically is easier to marshal by the government and the private sector. 'As Judge Posner ob272. See id.; see also Letter from James A. Goldston, Executive Director of Open Society Justice Initiative, to Pablo Saavedra Alessandri, Secretary of Inter-American Court of Human Rights (May 6, 2004); Simpson Thacher & Bartlett LLP, Practice, Pro Bono, available at http://www.simpsonthacher.com/practice.htm (last visited Nov. 9, 2004). FORDHAMINTERNA TIONAL LAWJOURNAL served, one of the most important purposes served by amicus filings is to assist a party who is not represented competently or is not represented at all.2 7 3 Even when the primary litigants are well represented, the not-for-profit sector can highlight the effects of the law's application on underprivileged parties, supplement the parties' arguments, and rebut assertions by parties and other amici that support positions antithetical to the public interest. Lawyers who undertake on a pro bono basis to represent amici to advance the causes of such parties provide a critical service in the fair administration of justice. Issues amici raise can be considered by the court before it renders its ruling, in effect offering an opportunity to save the tribunal from erroneously interpreting a law, failing to take into account unintended effects of its ruling, omitting consideration of important factual information, or inadvertently ignoring other pending cases or exigent relevant circumstances. Amici can help facilitate the rational development of the law, enhance access by courts to diverse viewpoints, and exploit a legitimate, productive, and visible means of insurgency against injustice. Pro bono representation of public interest amici offers an opportunity to participate as a significant catalyst for the preservation and advancement of justice. Accordingly, notwithstanding the inevitable self-interest of the amici in furthering their causes, the amici are, as the lexicon suggests, "friends of the court." And amici who participate to advance important causes of the public interest are, as well, friends of justice. 1. Arthur Allen Leff , The LeffDictionary of Law: A Fragment ,94 YALE L.J. 1855 , 2012 ( 1983 ). 2. Sylvia H. Walbolt & Joseph H. Lang , Jr., Amicus Briefs: Friend or Foe of Florida Courts ?, 32 STETSON L . REv . 269 , 270 ( 2003 ) ; see also Allison Lucas, Friendsof the Court? The Ethics of Amicus Brief Writing in First Amendment Litigation, 26 FORDHAM URB . L.J. 1605 , 1607 & n. 10 ( 1999 ). 3. See, e.g., Judith S. Kaye, OneJudge's View of 'Friendsof the Court," 61 N.Y. ST. BARJ ., Apr., at 12- 13 ( 1989 ). 4. Walbolt & Lang, supra note 2, at 270. 5. See Samuel Krislov , The Amicus Brief: From Friendshipto Advocacy , 72 YALE L.J. 694 , 695 ( 1963 ). 6. Allison Lucas , Friendsofthe Court? The Ethics ofAmicus Brief Writing inFirstAmendment Litigation , 26 FORD -AM URB . L.J. 1605 , 1607 ( 1999 ) (footnotes omitted). 7. Kaye, supra note 3, at 10. 8. Lucas, supranote 6, at 1607 & n.16 (quoting Protector v . Geering, 145 Eng. Rep . 394 ( Ex . 1656)). 9. Michael K Lowman , The LitigatingAmicus Curiae: When Does the PartyBegin After the Friends Leave? , 41 Am.U. L. REV. 1243 , 1245 ( 1992 ). 10. MichaelJ. Harris, Amicus Curiae: Friend OrFoe? The Limits ofFriendshipin AmericanJurisprudence,5 SUFFOLKJ . TRIAL & Ap' . ADvoc. 1 , 6 ( 2000 ). 11. Walbolt & Lang, supra note 2, at 271 (citing Krislov, supra note 5 , at 704). 12. See Gregg Ivers & Karen O'Connor , Friendsas Foes: The Amicus CuriaeParticipation and Effectiveness of the American Civil Liberties Union and Americans for Effective Law Enforcement in Criminal Cases, 1969 - 1982 , 9 J.L. & POL 'Y 161 , 168 ( 1987 ). 13. 367 U.S. 643 ( 1961 ). 14. 372 U.S. 335 ( 1963 ). 15. 378 U.S. 478 ( 1964 ). 16. 384 U.S. 436 ( 1966 ). 17. See generally Bruce J. Ennis , Symposium on Supreme CourtAdvocacy: Effective Amicus Briefs, 33 CATH. U. L. REv. 603 ( 1984 ). 18. Id . at 604 & n.3. 19. See , e.g.V, ictor E. Schwartz , The Restatement (Third) of Torts: ProductsLiability - The American Law Institute'sProcessof Democracy andDeliberation ,26 HOFSTRA L. REv . 743 , 755 n. 57 ( 1998 ). 20. See , e.g., Brief of the Product Liability Advisory Council, Inc. as Amicus Curiaein Support of Appellants , In re Bridgestone/Firestone, Inc. Tires Prods. Liab. Litig., Nos . 00 - 8003 , 02 - 8004 , 02 - 8005 ( 7th Cir . 2002 ). 21. 21 U.S. 1 ( 1823 ). 22. See Coxe v. Phillips, 95 Eng. Rep. 152 (KB. 1736). 23. See Sup. CT. R. 37 . Other rules apply to such filings, such as Rule 29, governing filing and service; Rule 30, addressing computation of time; and Rule 33, specifying format, page limits, and the colors of covers . See Sup. CT. R . 29 , 30 , 33 . 24. See Sup. CT. R. 37 .4. 25. See Local Gov't Assistance Corp . v. Sales Tax Receivable Corp., Motion No. 334 , 2004 N.Y. LEXIS 949 (N.Y. May 4, 2004 ). 26. See Local Gov't Assistance Corp . v. Sales Tax Receivable Corp., 813 N.E. 2d 587 (N.Y . 2004 ). 27. See Local Gov't Assistance Corp . v. Sales Tax Receivable Corp., Motion No. 293 , 2004 N.Y. LEXIS 595 (N.Y. Apr. 1 , 2004 ). 28. See Local Gov't Assistance Corp . v. Sales Tax Receivable Corp., Motion No. 335 , 2004 N.Y. LEXIS 952 (N.Y. May 4, 2004 ). 29. See Local Gov't Assistance Corp . v. Sales Tax Receivable Corp., Motion No. 334 , 2004 N.Y. LEXIS 949 (N.Y. May 4, 2004 ). 30. See CourtDenies Silver Amicus Status in Bond Bailout Case , N.Y.L.J. , May 5 , 2004 , at 36. Sup . CT. R. 37.6 37. Id . 38. Nancy Bage Sorenson , The Ethical Implications of Amicus Briefs: A Proposalfor Reforming Rule 11 of the Texas Rules of Appellate Procedure, 30 ST . MARY'S LJ . 1219 , 1222 ( 1999 ). 39. Walbolt & Lang, supra note 2, at 308. 40. Sorenson , supra note 38, at 1222. 41. See TEX. R. App . P. 11 . 42. Sorenson , supra note 38, at 1222-23. 43. See id. at 1223. 44. MODEL RULES OF PROF'L CONDUCT R . 1 . 3 ( 1983 ). 45. See MODEL RULES OF PROF'L CONDUCT R. 1.3 cmt. 1; see also MODEL CODE OF PROF'L RESPONSIBILITY Canon 7 ( 1980 ). 46. See MODEL RULES OF PROF'L CONDUCT R. 1.2(a) & cmt. 1. The clear exception to this rule is when a client wants the lawyer to perpetuate or aid in the commission of a crime or fraud . See MODEL RULES OF PROF'L CONDUCT , R. 1 .16 cmt. 2; MODEL CODE OF PROF'L RESPONSIBILITY DR 2-110(b ) ( 1980 ). 47. See , e.g., infra notes 78-97 and accompanying text. 48. See Alexander Wohl, F7iends with Agendas, A.B.A. J. , Nov . 1996 , at 46; see also Ennis, supra note 17 , at 603 ( reviewing 90 cases argued before the Supreme Court in the 1998-99 term) . 49. See infra notes 168-69 and accompanying text. 50. See Harris, supranote 10 , at 7. 51. SeeJoseph D. Kearney & Thomas W. Merrill , The Influence ofAmicus CuriaeBriefs on the Supreme Court , 148 U. PA. L. REv . 743 ( 2000 ). 52. See id. at 749. 53. See generally id . 54. See id. at 749. 55. Dan Schweitzer , Development andPracticeNote: Fundamentalsof Preparinga United States Supreme Court Amicus Brief 5 J. App. PRAC. & PROCESS 523 , 542 ( 2003 ). 56. 539 U.S. 306 ( 2003 ) (addressing the race-based admissions policy of the University of Michigan Law School) . 57. See Schweitzer, supra note 55 , at 523-24 nn.2 -3 (citing U.S. Sup . Ct. Official Transcr. at 7-13 , 19 - 23 , Grutter v. Bollinger , 539 U.S. 306 ( 2003 ), No. 02 - 241 (argued Apr. 1 , 2003 ), available at http://www.supremecourtus.gov/ (last visited Oct. 27 , 2004 ) (referring to the Brief for Julius W . Becton, Jr. , et al. as Amicus Curiae)). 58. See Grntter, 539 U.S. at 330. 59. Id . 60. Id . (citation omitted). 61. Schweitzer , supra note 55, at 524. 62. 370 U.S. 335 ( 1963 ) 63. Id . at 338. 64. See id.; see also Mapp v. Ohio , 367 U.S. 643 ( 1961 ) (allowing counsel for amicus American Civil Liberties Union ("ACLU") to be heard during oral argument). 65. 492 U.S. 490 ( 1989 ). 72. Ryan v. Commodity Futures Trading Comm'n, 125 F.3d 1062 , 1064 ( 7th Cir . 1997 ) (Posner , J.). 73. See FED. R. App . P. 29 (e); see also Harris, supranote 10 , at 14-15. 74. See generally Sup . CT. R. 10. See Schweitzer, supra note 55 , at 527-28. 75. 521 U.S. 507 ( 1997 ). See Schweitzer, supra note 55 , at 530. 82. Id . (citations omitted). 83. See generally 74 N.Y.2d 201 ( 1989 ). 84. Lynn M. Kelly , Lauyeringfor Poor Communitieson the Cusp of the Next Centuiy, 25 FORDHAM URB . L.J. 721 , 723 - 24 ( 1998 ). 189. Id . at 316 & n.21. 190. Id . at 316 n.21. 191. Schweitzer , supra note 55, at 536. 192. 539 U.S. 306 , 342 (Ginsburg, J., concurring) ( citations omitted) (Justice Breyerjoined in the concurrence ). 193. Id . 194. See Rasul v. Bush , 126 S. Ct . 2686 ( 2004 ). 195. See Brief as Amicus Cuiae Bipartisan Coalition of Nat'l and Internat'l NonGovernmental Organizations in Support of Petitioners, Rasul v . Bush , 126 S. Ct . 2686 ( 2004 ), Nos. 03 - 334 , 03 - 343 (submitted Jan. 14 , 2004 ). The coalition was comprised of the Lawyers' Committee for Human Rights, Amnesty International, Human Rights Watch, the ACLU, the Anti-Defamation League, the Association of the Bar of the City of New York, the National Association of Criminal Defense Lawyers, the National Association of Social Workers Legal Defense Fund, the People for the American Way Foundation, the Rutherford Institute, Trial Lawyers for Public Justice, the American Jewish Committee, Islamic Circle of North America, National Council of the Churches of Christ in the U.S.A., and the Union for Reform Judaism . See id. at 1-5. 196. See id. at 8 , 11 . 197. See id. at 23. 198. See Brief as Amicus CuriaeAbdullah Al Joaid in Support of Petitioners at 1, Rasul v . Bush , 124 S. Ct . 2686 ( 2004 ), Nos. 03 - 334 , 03 - 343 (submitted Jan. 14 , 2004 ). 199. See Brief as Amicus Curiaeof 175 Members of Both Houses of Parliament of the United Kingdom, Rasul v . Bush , 124 S. Ct . 2686 ( 2004 ), Nos. 03 - 334 , 03 - 343 (submitted Jan. 14 , 2004 ). 200. See Brief for the Commonwealth Lawyers Association as Amicus Curiaein Support of the Petitioners, Rasul v . Bush , 124 S. Ct . 2686 ( 2004 ), Nos. 03 - 334 , 03 - 343 ( submittedJan . 14, 2004 ). Signatories to the brief are members of the English bar . See id. at 1. 201. Elizabeth M. Schneider , Ann Hirsch Lecture: TransnationalLaw as a Domestic Resource: Thoughts on the Case of Women's Rights, 38 NEw ENG . L. Riv. 689 , 693 ( 2004 ) (quoting Claire L'Heureux-Dube, The Importance ofDialogue: Globalization and the InternationalImpact of the Rehnquist Court, 34 TULSA L .J. 15 , 17 ( 1998 ) (emphasis omitted)). 202. See Lawrence v. Texas , 539 U.S. 558 ( 2003 ). 203. See id. 204. Id. (Scalia , J., dissenting) ( citation omitted) (emphasis in original). 205. Sandra Day O'Connor , Justice O'Connor Predicts Greater Domestic Reliance on Norms of InternationalLaw andPraisesInstitute' s IncreasingTransnationalFocus, 24 (4) A.L.I. REPORTER , Summer 2002 , availableathttp://www.ali.org/ali/R2404 4_Norms. htm (last visited June 21 , 2004 ). 206. Id . 207. Id . 213. See 877 F. Supp . 1 (D.D .C. 1995 ) ; see also Bachchan v . India Abroad Publ'ns , Inc., 585 N.Y.S. 2d 661 (N.Y. Sup . Ct. 1992 ). 214. See Matusevitch v. Telnikoff , 877 F. Supp . 1 , 2 (D.D .C. 1995 ). 215. MD. CODE ANN., Cts . & Jud . Proc. § 10 - 704 ( b)(2) ( 2004 ). 216. See Matusevitch, 877 F. Supp . at 3-4. 217. See DowJones & Co., Inc. v. Harrods, Ltd., 346 F.3d 357 ( 2d Cir . 2003 ) [hereinafter Dow Jones I1] . 218. See Dow Jones & Co., Inc. v. Harrods, Ltd., 237 F. Supp . 2d 394 , 402 (S.D.N .Y. 2002 ) [hereinafter Dow Jones I]. For example, Dow Jones asserted that under British law: (1) the defendant bears the burden of proving the truth of defamatory statements; (2) defamation is a strict liability tort and the plaintiff need not prove that the defendant acted with fault, in contrast with the "actual malice" standard that applies to libel claims asserted by public figures and public officials under American First Amendment principles; (3) protection for expression of opinion is severely limited; (4) only limited protection is available for statements about public officials or public figures; (5) aggravated damages are permitted if certain defenses are asserted, such as when a defendant seeks to justify the publication; (6) the plaintiffs attorneys fees and costs must be paid by the unsuccessful defendant; and (7) multiple, repetitive suits are allowed for each individual publication, for example, for different media or various places of publication . See id. at 403 n.18. 219. See DowJones II , 346 F.3d at 359 -60. 223. See generally Gertz v . Robert Welch , Inc., 418 U.S. 323 ( 1974 ); N.Y. Times Co. v. Sullivan, 376 U.S. 254 ( 1964 ). 224. See Communications Decency Act, 47 U.S.C. § 230 ( 2000 ). 225. See , e.g., Zeran v . America Online Inc., 129 F.3d 327 ( 4th Cir . 1999 ), cert. denied, 524 U.S. 937 ( 1998 ). Cf Lunney v . Prodigy Services Co., 723 N.E. 2d 539 (N.Y . 1999 ) (considering similar issues without resorting to application of the Communications Decency Act), cert . denied, 529 U.S. 1098 ( 2000 ). 237. 438 U.S. 265 , 407 ( 1978 ). 238. Linda Greenhouse , Correspondence/TheBlackmun Papers; At a Shrine ofAmerican Documents, Pathos, Poetry and Blackmun's 'Rosebud,' N.Y. TIMES , Mar. 7 , 2004 , § 4, at 7. 239. Id . (quoting McGeorge Bundy, ATL . MONTHLY, Nov. 1977 , available at http:// www.etsu.edu/cas/history/docs/bundy.htm (last visited Oct. 3 , 2004 )). 240. Eric Lichtblau , U.S. Spells Out DangersPosed By Plot Suspect , N.Y. TIMES , June 2, 2004 , at Al. 241. Id . 242. Id . (quoting Donald G . Rehkopf, Jr.). 260. See id. 261. See Debevoise & Plimpton LLP , Departments, Pro Bono, availableat http:// www.debevoise.com/practices/group.asp? groupid=6 (last visited Nov. 3 , 2004 ) ( describing its pro bono work "[c]ounseling and litigating for the Committee to ProtectJournalists in support of its efforts to combat violations of press freedom worldwide," and noting that the firm "filed amicus briefs for CPJ in the Inter-American Court of Human Rights, the Inter-American Commission on Human Rights and the courts of Croatia and Taiwan to challenge criminal libel prosecutions of journalists ... . 262. See CPJ Brief, supra note 259, at 20-40. 263. Ryan v. Commodity Futures Trading Comm'n, 125 F.3d 1063 ( 7th Cir . 1997 ) (citations omitted). 264. Erik Bierbauer & Pablo Valverde, Inter-American Court Rules for Defendants in Two CriminalDefamation Cases: A Step Forwardfor the Pressin Latin America , MLRC MEDIAIAwLETrER, Oct. 2004 , at 41. The ruling effectively voided the sentence that had been imposed against the reporter in 1999 on the ground that the state "violated the right to freedom of thinking and expression, in the terms of Article 13 of the American Convention on Human Rights." Costa Rica: Court Overturns Costa Rican DefamationSentence; CPJ Welcomes Decision,2004 NEws ALERT (Comm . to ProtectJournalists), Aug. 4 , 2004 , available at http://www.cpj.org/news/2004/Costa04aug04na.html (last visited Nov. 2 , 2004 ) (quoting court decision). The court also ordered Costa Rica to pay Herrera Ulloa U .S.$ 20 ,000 in damages and U.S.$ 10 , 000 for legal fees . See id. 265. Bierbauer & Valverde, supra note 264, at 41.


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Madeleine Schachter. The Utility of Pro Bono Representation of U.S.-Based Amicus Curiae in Non-U.S. and Multi-National Courts as a Means of Advancing the Public Interest, Fordham International Law Journal, 2004,