A Taxonomy to Assess the Usefulness of Amicus Briefs

In recent years, the number of amicus briefs submitted to the Supreme Court, as well as to the lower courts, has increased. Generally, at the beginning of every brief is a “Statement of Interest,” which explains why the brief was filed. The statement of interest tends to convey two broad ideas. First, the brief purports to introduce some argument that is different than the arguments presented by the parties. An amicus brief that merely repeats what the parties argued is not very helpful. Second, the brief is signed by people who bring novel perspectives to the case. For example, they have relevant experience or expertise. We can graph these two related concepts on an x-y axis. First , the y-axis plots the novelty of the argument, ranging from expected arguments to unexpected arguments. Expected arguments in amicus briefs are already well-developed by the parties, and do not add much value to deliberations. By contrast, unexpected arguments in amicus briefs are not developed by the parties, and offer the Court valuable new ways to think about the case. Second , the x-axis plots the identity of the signatories. There are many ways to measure this characteristic. To mirror the y-axis, I consider whether those who signed the brief are expected , or unexpected . Expected signatories are those people who are expected to support a specific result. At the other end of the spectrum are unexpected signatories. These are people you would not expect to support a particular side. This […]

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