The myth of the neutral amicus: American courts and their friends, 1790-1890.

• Author: Banner, Stuart

An amicus curiae ("friend of the court") is, in modern American practice, a non-party to a case who nevertheless has a strong enough interest in the case's outcome to file a brief. Common amici include the federal and state governments, ideological organizations like American Civil Liberties Union or the Washington Legal Foundation, commercial groups like the Chamber of Commerce or the AFL-CIO--in short, anyone with a stake in influencing the content of judge-made law. The name amicus curiae is generally acknowledged as something of a misnomer, in that very few amici intend primarily to help the court. Virtually every amicus hopes instead to advance its own interest by helping one party or the other win the case. This mismatch between name and function is embodied, for example, in court rules that typically require amici to identify the party to the case on whose behalf they wish to argue.

The misnomer is conventionally understood to be a vestige of a time when amici actually did render disinterested advice, for the purpose of helping the court rather than one of the parties. The original role of an amicus, on this view, was that of a neutral bystander, someone without a stake in the outcome of a case, who offered information to the court gratuitously, just to help the court avoid error. The function of an amicus has changed, the story goes, but the name has not. This understanding of the amicus's history traces back to a 1963 Yale Law Journal article by the political scientist Samuel Krislov, who located the supposed "shift from neutrality to advocacy" in the nineteenth century. Krislov's conclusion has been repeated many times since. (1)

In recent years, many courts have even relied on this supposed history to refuse to permit interested non-parties to file amicus briefs, on the theory that only the disinterested are eligible to become amici. As one federal district judge reasoned in 1999, it would be improper to allow a non-party to participate as an amicus where the non-party "has a specific pecuniary interest in the defendant's perspective," or where the non-party "makes no attempt to present itself as a neutral party." (2)

To put the history of the amicus this way, however, only raises further questions, questions that to my knowledge have not been raised previously. Who exactly were these neutral amici in the early nineteenth-century United States? Why were they offering disinterested help to judges? Was there really a time when gratuitous public-spirited legal advice was more plentiful than it is today?

We might approach these questions with some skepticism about the conventional story of a transformation from neutral to partisan amici, because the story fits so perfectly into a common but unrealistically nostalgic version of the history of American legal practice. (3) If one believes that the law was once a noble profession, staffed by officers of the court rather than mere advocates, and if one thinks of American lawyers as having gradually degenerated into paid mouthpieces for their clients, then one can readily believe that the institution of the amicus curiae has undergone the same decline. But if one considers the American lawyers of today no more or less venal than ever, the assumed change in the function of the amicus curiae becomes a puzzle.

There is a second reason for revisiting the issue. Krislov wrote in the early 1960s, before the existence of computerized legal research, so he had no easy way of counting cases. He drew his conclusion from a very small sample, a sample that nevertheless included cases clearly at odds with the point he was trying to prove. Today, with the benefit of an enormous word-searchable database of court opinions, we can do better.

In this paper I accordingly investigate the role of the amicus curiae in early American practice. The paper concludes that:

(1) There was never a time in American practice when an amicus was only allowed to offer neutral advice. Some amici were partisan even in the early nineteenth century.

(2) Neutral amici were slightly more common than partisan amici through the 1820s. Beginning in the 1830s, however, partisan amici seeking to advance the interests of their clients became much more common than neutral amici, and remained so through 1890, the study's endpoint.

(3) Before the 1870s most neutral amici did not file written submissions. Neutral amici were almost always lawyers who happened to be present in court, watching the oral argument of a case in which they were not involved, and their advice was given orally and spontaneously.

(4) The change in the middle decades of the nineteenth century, to amici that were much more likely to be representing the interests of a client than offering disinterested advice, was most likely caused by the shift from an oral to a written practice, not by any loss of neutrality on the part of lawyers.

These conclusions are at odds with the conventional understanding of the history of the amicus curiae.

1. THE CASES

   I conducted a Lexis search of all state and federal cases decided between 1790 and 1890 containing the words "amicus" or "amici" or the phrase "friend of the court," and then weeded out the cases in which an amicus did not actually appear. (4) Joseph Gratz, technical editor at Constitutional Commentary, then conducted a similar Westlaw search, which picked up some additional relevant cases. (5) The result was 308 reported cases with amicus participation. All 308 cases are listed in the appendix. (In all but a few, the person designated as the amicus was a lawyer. Today it is the lawyer's client who is designated as the amicus, but that shift in terminology did not occur until the twentieth century.) For each case, I tried to figure out, from the account in the reports, the amicus's motive in appearing. This proved impossible in 56 of the cases, leaving 252 in which I had a sense of why the amicus was participating.

   The resulting group of 252 cases has some strengths and some weaknesses as a basis from which to infer the motives of amici generally. These are worth discussing before examining the data.

   Because the Lexis and Westlaw databases now include all or nearly all reported American cases, dating back to the beginning of published case reports in each state, we know that the sample is extremely small relative to the total number of reported cases. Lexis includes 692 cases decided in January 1850 alone, for instance, and that is just one of the 1,212 months covered by the sample. It is possible that amici participated in reported cases that are not included in the sample, either because their participation was not reported or because it was reported in a way that was not picked up by our searches. The sample is also heavily weighted toward the end of the century, but in that respect it is representative of the set of reported cases generally, in part because of improvements in case reporting, but mostly because the number of litigated cases rose along with the population.

   The total number of reported cases, moreover, is very small relative to the total number of decided cases, a number that is unknown and most likely unknowable. Worse, the reported cases are a biased subset of the decided cases. They were reported because they were considered the most important--because they were decided by federal courts or by the highest state courts, because they required the development of legal principles of wide interest, because they involved high stakes, or because of some combination of these factors. This bias would make the reported cases a poor sample from which to infer the percentage of cases in which amici participated, because amici would almost certainly have been more likely to participate in a case destined to be reported than in an unreported case.

   If one is interested in the motives of amici rather than the frequency of their appearance, however, the bias created by the reporting system would pose a problem only if the importance of a case disproportionately attracted amici of one variety or another. An important case was probably more likely than an ordinary case to draw an amicus seeking to advance the interest of a client, but it was probably also more likely than an ordinary case to draw an amicus wishing to offer disinterested information to the court. We have no reason to expect that one kind of amicus would have been more attracted to the important cases than the other.

   The case reports are a more useful source of data than readers of today's case reports might expect, because nineteenth-century reports often included detailed accounts of oral proceedings in court, summaries of the arguments of counsel, and histories of the progress of the case in lower courts. It is often easier to tell why a lawyer is participating in a nineteenth-century case than it would be today. Over the course of the nineteenth century, however, this style of case reporting gradually began to change into the modern, less informative style, and that change introduces two biases into the data.

   First, the likelihood that an oral remark would be reproduced in the reports declines over the century, so the shift in the data from oral to written amicus participation is in part an artifact of the change in reporting style. It is possible that oral amici were more likely to be disinterested than written amici; if so, part of the shift in the data from neutral to partisan amici is also an artifact of the change in reporting style.

   Second, the modern style most likely concealed the interest of many amici in the later part of the century. There were probably many lawyers listed simply as "amici curiae" in reports toward the end of the century, who, earlier in the century, would have been described as representing a client or advancing the interest of someone other than the court. The percentage of cases I had to exclude from the sample because of reporting too terse to identify the amicus's motive rises...