CHAPTER 12 Briefs of Amicus Curiae

• Jurisdiction: United States

CHAPTER 12

Briefs of Amicus Curiae

12-1 Introduction

"Amicus curiae" literally means "friend of the court" in Latin. Originally, an author of an amicus brief was just that—a disinterested "friend" who helped the court by offering a unique legal perspective or helpful fact. Indeed, the term "amicus curiae" once "applied to a bystander, who without having an interest in the cause, of his own knowledge makes suggestion on a point of law or of fact for the information of the presiding judge."¹ Over the years, however, the role of the amicus changed, and today, the "institution of the amicus curiae brief has moved from neutrality to partisanship, from friendship to advocacy."²

Use of amicus briefs is on the rise. The number of amicus filings in the United States Supreme Court increased by more than 800 percent in the years 1946–1995.³ In the Court's 2017–2018 term, 100% of cases with signed majority opinions included at least one amicus brief at the merits stage.⁴ Likewise, the submission of amicus briefs in state courts of last resort has consistently increased.⁵

Whether and how much amicus briefs influence a court is the source of debate. Studies show that the United States Supreme Court increasingly cites amicus briefs. During the 1986–1995 terms, 37% of the Court's decisions referenced an amicus brief.⁶ By the Court's 2017–2018 term, that number had increased to 59%, up from 50% the previous term.⁷ The majority of those briefs cited were filed by the Office of the Solicitor General.⁸ Closer to home, both the Texas Supreme Court and Texas courts of appeals favorably cite helpful amicus briefs, occasionally noting the excellent assistance they provide.⁹ A survey of Texas appellate courts reveals that while rarely outcome-determinative, amicus briefs often can shape the reasoning of a decision.¹⁰

So amicus briefs can, and do, make a difference in some cases. But the evidence suggests that amicus briefs serve an important, and even critical, role only if they are well-written and bring something new to the table. Judges and law clerks alike have made clear that poorly written amicus briefs or ones that only mirror the parties' briefs are a burden, rather than a help, to the court. As Justice Posner famously stated:

After 16 years of reading amicus curiae briefs the vast majority of which have not assisted the judges, I have decided that it would be good to scrutinize these motions in a more careful, indeed a fish-eyed, fashion. The vast majority of amicus curiae briefs are filed by allies of litigants and duplicate the arguments made in the litigants' briefs, in effect merely extending the length of the litigant's brief. Such amicus briefs should not be allowed. They are an abuse.¹¹

And a survey of law clerks for the United States Supreme Court revealed that amicus briefs are too often "duplicative, poorly written, or merely lobbying documents not grounded in sound argument."¹² Thus, before deciding whether to recruit amicus support—or whether to author an amicus brief on behalf of another—one must consider whether the brief will serve a useful function for the court.

12-2 Functions of an Amicus Brief

The Texas Supreme Court's opinions over the last 15 years reveal that amicus briefs are most effective if they perform one of the following functions.

12-2:1 Examining Public Policy Implications

An amicus frequently occupies a unique position in the non-profit, government, business, or legal world and can shed important light on the public policy implications of a decision. An amicus brief serving this role can provide invaluable information to the court regarding the potential dangers or unintended consequences of a particular decision. Indeed, a survey of the Texas appellate judiciary revealed that one of the best ways to improve the quality of an amicus brief is to further develop the public policy issues involved in the case.¹³ An amicus is often uniquely qualified to provide such information because of its intimate familiarity with the matter at issue—and for the same reason may capture the attention of the court more effectively than the party.

For example, in one recent opinion, the Texas Supreme Court noted that pet-welfare amici, who "understand the deep emotional bonds between people and their animals," made a "forceful case" that public policy weighed against permitting non-economic damages for the loss of a pet.¹⁴ The Court extensively cited the public policy arguments made by animal welfare organizations regarding the dangers of permitting such recovery and ultimately held that such recovery was prohibited.¹⁵ In another case, the Court noted that the plethora of amicus briefs "from every corner of the [oil and gas] industry—regulators, landowners, royalty owners, operators, and hydraulic fracturing service providers—all oppose liability for hydraulic fracturing, almost always warning of adverse consequences in the direst language."¹⁶ The Court cited at length the long-term ramifications of a contrary decision as set forth by the various amici and held that damages for drainage by hydraulic fracturing were precluded by the rule of capture.¹⁷

Alerting the court to the potential ramifications of a recent decision can also be influential at the motion for rehearing stage. For example, Justice Hecht, in a dissenting opinion on motion for rehearing, stated: "Centex moved for rehearing, supported by twenty-three amici curiae representing virtually the entire Texas home building industry, which counts among its ranks thousands of small businesses as well as four of the five biggest home builders in America. Centex and the amici argue that the Court has misunderstood their industry—no doubt, they say, because of the spare factual record in this case—and that its decision is likely to cause unintended harm. . . . I would grant the motion for rehearing."¹⁸ Justice Owen likewise dissented on the basis of the amicus briefs: "I have become convinced by the amicus briefs filed in this case that the Court would benefit from granting rehearing and scheduling another argument. . . . We have no idea what the practical impact of our holding will be on consumers."¹⁹

12-2:2 Providing Information From First-Hand Experience or Specialized Expertise

An amicus typically has day-to-day experience with how a particular law or statute operates in the real world, and thus can provide useful information to the court that a party does not have or that is more credible coming from an amicus. For example, in one recent case, the Texas Supreme Court repeatedly cited amici who weighed in on the deleterious effects of single-use plastics.²⁰ In another, the Court noted that a "well-established practice" regarding assignment of acreage was supported by the fact that "the numerous amici who filed briefs in this case nearly all agree that the operator, not the [Railroad] Commission, 'assigns' lands to proration units."²¹ In another case, the Court noted the anecdotal evidence provided by amici City of Fort Worth, City of Sulphur Springs, and City of Mesquite that property owners rarely invoke the right to appeal nuisance findings by city standards boards.²² And in another, the Court noted that amicus Property Casualty Insurers Association of America, "a trade association representing more than 1,000 property casualty insurance companies doing business throughout the nation," held the view that parties to an automobile liability policy reasonably expect the policy to cover against the risk of automobile accidents, not the injury-producing event in this case—negligent exposure to a communicable disease on a bus.²³

12-2:3 Providing Non-Record Statistical or Empirical Information

An amicus often can provide factual or empirical data relevant to the appeal, which can be helpful to the court in determining the potential ramifications of its decision. For example, in a recent case, the Court determined that a patent agent who "stays within the sphere of patent law," has no need for a supervising attorney because the agent can provide all the same services.²⁴ In support, the Court cited the Intellectual Property Owners Association's amicus brief, which stated that non-attorney patent agents working without attorney involvement or supervision make up "roughly 13% of the practitioners who appear before the Patent and Trademark Office."²⁵ In another case, the Court reaffirmed that a railroad's duty is not to clear its right-of-way of things that may obstruct sight at a crossing but rather to give adequate warning of approaching trains given whatever obstructions or other conditions exist.²⁶ In so holding, the Court noted that amicus Association of American Railroads "cites data indicating that the regulation of railroad crossings has, from 1980 to 2004, coincided with a 71% decrease in collisions and a 56% decrease in collision fatalities."²⁷ The court stated: "Public policy does not require us to disturb a positive regulatory scheme."²⁸ In another case, the Court considered a suit for declaratory judgment that use of staff attorneys to represent insureds did not constitute the unauthorized practice of law.²⁹ The Court stated that an amicus curiae brief, "submitted by five insurers who use staff attorneys to defend insureds, states that fifteen insurers employ 220 staff attorneys in Texas in 39 offices. Another amicus curiae brief, received from insurance, corporate counsel, and business interests, estimated that in September 2005, over 10,000 cases in Texas were being defended by staff attorneys."³⁰

12-2:4 Providing Support for a Party's Legal Arguments

Often, the amicus will focus on a particular legal issue, and its analysis of that issue can come into play in a number of different ways. Rather than repeating the party's brief, however, an amicus should focus only on the aspects of the legal issue pertinent to its position.

12-2:4.1 Supporting a Party's Primary Legal Argument

If the case involves a complex area of the law with which the amicus is...