Is the New York State Court of Appeals still "friendless?" An empirical study of amicus curiae participation.

AuthorLaroche, Matthew
PositionHIGH COURT STUDIES

INTRODUCTION

Amici--because they have a wider perspective, or simply a different perspective--can be of inestimable value to courts in discharging their responsibility that extends beyond the litigants. An amicus can alert the court, as the parties perhaps cannot or would not wish to, that a large issue lurks in an appeal; that a case of seeming insignificance has potentially wide ramifications and will likely have major impact when a ruling is applied in other factual settings; or that a case of obvious major significance could conceivably have wholly unanticipated effects. Amici can sensitize the court--when it may be irrelevant to the litigants, whose objective is to win--to the appropriateness of narrowing or limiting a holding, and with other factual situations in mind they can suggest alternate rationales for achieving results urged by the parties.

Judge Judith S. Kaye (1989) (1)

The New York State Court of Appeals decides a wide range of significant statewide issues which have long-lasting effects on the citizens of the State of New York. Similar to the United States Supreme Court in the federal arena, the primary function of the Court of Appeals is "declaring and developing an authoritative body of decisional law for the guidance of the lower courts, the bar and the public." (2) During any given year, the court decides appeals involving state and federal constitutional law, administrative law, products liability law, environmental issues, zoning matters, rent cases, criminal cases, and tort issues, among many others. Based on this amount of authority, one would expect that non-parties would choose to advocate before the court if there was any mechanism to influence the decision-making process. In fact, there is such a mechanism available: the amicus curiae brief. Through this form of participation, non-parties to appeals are able to engage the court by submitting briefs as amicus curiae, or as a "friend of the court." (3) As of 1989, however, the court has been notably "friendless." (4)

In 1987, the Court of Appeals decided 369 appeals of which only thirty involved amicus briefs. (5) The U.S. Supreme Court, by contrast, consistently decides individual cases in which dozens of amicus briefs are filed. (6) In fact, in 1989, the Court heard one case, Webster v. Reproductive Health Services, (7) in which more amicus briefs were filed than during the entire term of the New York State Court of Appeals. (8) Over the past fifty years, the federal court system has seen a clear and rapid influx of amicus curiae submissions. (9) Whereas between 1946-1955 the percentage of cases decided with at least one amicus brief was only 23% in the U.S. Supreme Court, that number jumped to over 85% of cases between 1986-1995. (10)

The disparity in the number of filings becomes even more surprising considering the Court of Appeals' policy towards amicus briefs. Not only have individual judges encouraged the practice, (11) but the court has expressed interest in amicus filings by amending its rules to enable it, sua sponte, to invite submissions. (12) In December of 1988, the court even added a preamble to its weekly list of new filings which encourages the submission of amicus briefs. (13) Moreover, the court overwhelmingly grants motions for amicus curiae relief. (14)

Not everyone would identify the lack of amicus curiae participation in the court as a negative. Perhaps unsurprisingly, judges have not hesitated at expressing their opinions concerning the value of amicus briefs. Judge Posner has lamented that the "vast majority" of amicus curiae briefs "have not assisted the judges," and are "an abuse" of non-party participation. (15) Justice Scalia, in reference to several amicus curiae submissions in one case, noted that "[t]here is no self-interested organization out there devoted to pursuit of the truth in the federal courts." (16) Justice Alito, however, has argued that "an amicus who makes a strong but responsible presentation in support of a party can truly serve as the court's friend." (17)

The more important inquiry may be what effect these briefs have on a court's decision-making process. Although most literature concerning the manner in which courts engage in decision-making is rooted in a normative approach, or by arguing, on a case-by case basis, that the court simply got the law wrong or right, (18) amicus curiae briefs are peculiarly suitable for study from a social science perspective. That is, by using empirical data to assess their impact on the outcome of litigation. (19) In fact, several studies have done just that by addressing the impact of amicus curiae briefs on the Supreme Court. (20) Notably, these studies have focused almost exclusively on the federal courts.

As a byproduct of these studies, several theories have emerged concerning the manner in which amicus briefs affect the decisionmaking process of courts. The first, and simplest, theory is that amicus briefs have no effect on the outcome of cases. (21) This theory, which statisticians would call the null-hypothesis, is consistent with the attitudinal model of judicial decision-making which suggests that judges have preconceived ideologies and will decide cases in a manner consistent with these views. (22) Thus, even if amicus curiae briefs provide supplemental information to the court, this information would be irrelevant since judges need very little information to decide issues beyond the basic facts and questions presented. (23)

In contrast, two other theories have emerged arguing that amicus curiae briefs do have a quantifiable effect on judicial decisionmaking: the information theory and the affected groups theory. (24) The information theory suggests that certain amicus briefs are more effective as a litigation tool because they provide useful information to the court that is not already present in the record. (25) This theory is consistent with the legal model of judicial decision-making, which holds that judges decide cases based on their interpretation of the relevant law and facts irrespective of outside influences. (26) The statements of Judge Kaye above suggest this theory implicitly. (27)

The affected groups theory suggests that amicus briefs have utility, not from their legal arguments, but simply from being filed. (28) Assuming judges try to resolve cases consistent with public sentiment, the number of amicus briefs filed for a particular party can act as a barometer of public opinion. (29) In turn, judges are then able to construct decisions consistent with public opinion measured by group participation as amicus curiae. This theory is consistent with the interest group model of judicial decision-making, which assumes that judges attempt to satisfy the needs of the most organized interest group before them in court. (30)

Still, there is little doubt that amicus filings have flooded the federal courts as an attempt to control, or at least influence, judicial decision-making. (31) At least as of 1989, the same cannot be said for the New York State Court of Appeals. The question remains, why does the Court of Appeals, which decides issues of statewide significance, have minimal participation from non-parties when amicus curiae briefs are encouraged by the court? Moreover, has it changed? Have the words of Judge Kaye gone unheeded, or have they inspired more amicus filings over the last twenty years? And if it has changed, what impact have amicus briefs had on the court's decision-making process?

In an attempt to answer these questions, I conducted an empirical study of amicus curiae participation in the Court of Appeals over the last twenty years. To accomplish this task, I assembled a large database consisting of all Court of Appeals cases which yielded a published opinion from 1988-2007, as well as selected years in the past for comparison. For each decision, I recorded, among other things, the outcome of the case, whether an amicus brief was filed, the number of amicus briefs supporting appellant, the number of briefs supporting respondent, and the author of each amicus brief. In addition, I also conducted a citation study to identify how often amicus briefs are cited in the court's opinions. After constructing the database, I used statistical techniques to assess trends in amicus filings, as well as the influence of amicus briefs on the outcome of cases in the Court of Appeals.

  1. THE RISE OF AMICUS CURIAE BRIEFS IN STATE COURTS

    The study of amicus curiae briefs, unsurprisingly, has focused almost exclusively on the federal courts. Amicus curiae participation is booming in the federal court system and plays an important role in judicial decision-making. This section explores the origin of the amicus curiae brief and tracks its evolution in state courts.

    1. The Origin and Transformation of the Amicus Curiae Brief

      Amicus curiae, or "friend of the court," refers to the tradition of courts permitting non-parties to litigation to submit their opinion on issues involved in the proceedings. (32) Although not always having a personal interest in the outcome of the case, amicus curiae are often particularly informed on the issues, or at least interested in the underlying ruling and its policy implications. In order to participate in a case, an amicus almost always needs permission of the court to file a brief as a non-party. (33)

      Amicus curiae have a long history in judicial proceedings. (34) Some scholars assert that amicus curiae are rooted in the Roman Law, and were court appointed to offer non-binding opinions to the court. (35) The more common conception of amicus curiae, however, traces back to the English Common Law in the seventeenth century. (36) First used at common law primarily for oral "Shepardizing," amicus filers also called attention to "manifest error, to the death of a party to the proceeding, and to existing appropriate statutes." (37) For example, in Prince's Case, (38) two amici alerted the court to a...

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