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
Copyright c 2004 by the authors. Fordham International Law Journal is produced by The
Berkeley Electronic Press (bepress). http://ir.lawnet.fordham.edu/ilj
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
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
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.
(Inter-American Court of Human Rights, brief submitted May 2004)
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
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
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
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
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
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
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
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
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
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
31. See Ryan v. Commodity Futures Trading Comm'n, 125 F.3d 1062 (7th Cir.
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
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
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
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).
68. See Ennis, supra note 17, at 604.
70. Kaye, supra note 3, at 13.
71. Sup. CT. R. 37.1.
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
• 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
* There is tension among decisions issued previously by the
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.).
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
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
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,
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
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
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)
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
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).
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
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
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
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
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.
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
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
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
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 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.
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
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.
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
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
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
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.,
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
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
A brief that explains U.S. jurisprudence and the policies
un253. See FED. R. Civ. P. 44.1
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
("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,  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].
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
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
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
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
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.
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.
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
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,
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.