11.1. Amicus Briefing Opens the Field to Many Stories

• Jurisdiction: United States
• Publication year: 2021

11.1. AMICUS BRIEFING OPENS THE FIELD TO MANY STORIES

A writer for a would-be friend of the court enjoys two liberations. One, usually, is from a fee budget. The other is from many rules and conventions of party briefing. Most rule sets require a brief to contain only a statement of the amicus party's interest, a table of contents, a table of authorities, an argument, and a recital that no party to the case has funded or participated in the brief.

At the start of an amicus project, I have often found my mind filled with the beginning of John Gillespie Magee's poem, High Flight: "Oh! I have slipped the surly bonds of Earth And danced the skies on laughter-silvered wings." And it is a special joy when a court cites one's brief as helpful or adopts its language.

11.1.1. Merits Stage Briefing

The primary difference between a party brief and a merits amicus brief is the latter's claim of a right to rely on facts outside the record. This hearkens back to Louis Brandeis's brief in Muller v. Oregon, 208 U.S. 412 (1908). Brandeis supported a law restricting the hours women could work, based almost entirely on unpublished social science research supervised by Brandeis himself.¹ Authors intending to present facts outside the record should consider the issues discussed in subsection 5.3.3. The nature of facts acceptable in briefs and permissible for judicial reliance is controversial and beyond my scope here.²

Getting a merits amicus brief accepted can be difficult in intermediate appellate courts. Most of the California Court of Appeal is unfriendly to amicus practice, and some presiding justices have had reputations for denying all applications. This illustrates that seeking local knowledge—and generally hiring known local counsel—is critical. The Seventh Circuit is famous for hostility to amicus briefs.³ Fortunately, a published 2020 chambers order expresses a more balanced view.⁴ It also declares the first rule of amicus briefing: provide something new and helpful. And it elucidates eight ways a brief can provide value by supplying new information:

1. Offering a different analytical approach to the legal issues before the court.
2. Highlighting factual, historical, or legal nuance glossed over by the parties.
3. Explaining the broader regulatory or commercial context in which a question comes to the court.
4. Providing practical perspectives on the consequences of potential outcomes.
5. Relaying views on legal questions by employing the tools of social science.

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