Briefs amicus curiae;

• Jurisdiction: United States

Section 88. Briefs amicus curiae; position of private counsel. —With briefs amicus curiae, as with reply briefs, the basic question is whether to file at all. There is no need here to discuss the problem of those who do not need consent of the parties to file¹⁶⁶—the Solicitor General, who is frequently constrained to conclude that the United States lacks the burning interest in given private litigation that enthusiastic General Counsels of particular Federal agencies profess to find there; and State Attorneys General, whose duty it is to defend, as amici curiae, legislation in their own States that is similar to or identical with legislation from other States actually under challenge.¹⁶⁷ It is similarly unnecessary to discuss the position of the crusading organizations; these have their own standards, their own pet causes, and their own urges, none of which can or will be deflected in any degree by outside arguments. The problem posed by this section is that confronting the private practitioner.

No doubt the soundest view is that the filing of a brief amicus curiae on behalf of a client should be seriously considered only when such filing is plainly necessary to protect that client's interest, but not when the only justification for such a course would be the desire to add a "me too," or even a conviction that "anything-you-can-say-I-can-say-better."

A good yardstick for differentiating between the two situations is the Supreme Court rule that sets forth the showing required to be made in a motion for leave to file a brief amicus curiae, namely, "facts or questions of law that have not been, or reasons for believing that they will not adequately...