Amicus Curiae: Information in the Service of Justice

From the pleas of Abraham on behalf of Sodom and Gomorrah1 to the appeals of Voltaire2 and Zola,3 intercessors for humanity4 have called for mercy and justice.5 In the legal system, such intonements have taken on the form of specialized briefs called amicus curiae (“friend of the court”).6 And through extension and by complement they have appeared in the form of law reviews, media articles, exposes, and books.7 Indeed, there is an oscillating relationship between amici and law reviews, which has been beneficial for scholarship and public discourse. In the end, it is the passion for justice that drives individuals, governments, academics, lawyers, journalists and other interested groups to befriend the courts.8

The amicus has the power to speak to many audiences simultaneously. In the courtroom, it is the honest broker; in the public media, it is the educator; in academia, it is scholarly analysis and historical perspective. Bounded by common law, court rules, and the conventions of publishing (briefs, articles or books), the amicus can yet move knowledge into venues where it is most needed. An amicus can serve as an “oral shepardizer,” expert witness, or quasi-litigant that extends the range of judicial notice and culls, concentrates and vets information into a case-specific resource.9

Still, there is a tension between the role of the amicus as independent expert offering facts and a party arguing an agenda, which can ultimately impact the quality and constitutionality of decision-making.10 Indeed, there are concerns that unregulated amicus practice can undermine development of case law by opening the door to issues and arguments beyond the threshold of standing and jurisdiction.11 Lastly, the free range of amicus briefs can exacerbate already problematic judicial information seeking behavior.12

Roman legal tradition fashioned the amicus into an interlocutor, an explainer in all kinds of cases. Today, their roles are circumscribed by court rule and common law.13 However, the scope of this article is confined to a discrete precinct of the amicus universe, criminal justice. For the pro se prisoner, and criminal law in general, the amicus often time becomes a necessary voice in constitutional adjudication.14 Indeed, some courts have appointed amici to invigorate the “case or controversy.”15 In this sense, the amicus can provide a leveling effect much as the right to counsel does for trial and first appeals as well as improving the quality of decision making and the evolution of justice. While post-conviction prisoners do not have a right to a lawyer, they have a right to hope that their plight will trouble the conscience of some trustee of truth willing to speak to their issues, some of whom might be found among the next generation of lawyers.16

The plight of the pro se prisoner paints a Dickensian picture of poverty, injustice and despair. So it is that law students in a clinic setting might bear witness to their experiences and find a new focus as a friend of the court and of the imprisoned poor. Without a doubt, an Amicus Clinic for pro se inmate cases could do much to educate judges about the conditions of confinement and other significant systemic issues.17 In such a learning environment, law students would gain experience in factual investigation, advanced legal research, and drafting Brandeis-type briefs for trial and appellate courts.18 Thus, a Pro Se Amicus Clinic could enrich future lawyers by enabling them to alchemize the human ink of unredressed grievances while serving as a friend of truth.19

Overall, this article is limited to describing noteworthy and recent scholarship concerning amicus work in the administration of justice as well as important developments in amicus theory and the quality of post-conviction advocacy.20

LAW REVIEWS

Democratic Theory of Amicus Advocacy, 35 Fla. St. U.L. Rev. 315 (2008)
“Amicus curiae (“friend of the court”) participation in litigation has flourished in recent years as many groups and individuals seek to influence the outcome of litigation. Amicus filers are not parties and judges have wide discretion to reject amicus briefs if they believe that the amicus participation does not add anything to the briefs already filed by the parties. In three recent cases, Seventh Circuit Court of Appeals Judge Richard Posner has rejected amicus filings and promised to closely scrutinize applications to file amicus briefs in the future. Judge Posner’s influence has led an increasing number of judges, primarily at the district court level, to deny leave to file amicus briefs. This Article argues for the importance of amicus participation in a democratic system. The Article proposes changes to the federal appellate standards for granting leave to file amicus briefs. Currently, court rules generally require that amicus briefs add something new to the arguments already made by the parties. This Article argues that the standards for sanctions under the Federal Rules of Civil Procedure should determine whether amicus briefs should be accepted for filing. This standard might increase the number of amicus briefs that are accepted for filing, but would also increase democratic participation in the court system. While placing some limits on amicus participation is important to the proper functioning of the judicial system, this Article argues that limits on amicus participation should be minimal in light of the democratic and constitutional values that amicus participation furthers.”

Effect of Counsel on Criminal Appeals, SSRN (2015)
“Iowa’s indigent defendants are represented on appeal by a combination of public defenders in the state appellate defender’s office and private court-appointed attorneys who contract with the state. Existing research about which type of lawyer — institutional defender or ad-hoc assigned attorney — provides better representation is mixed and muddled. This piece contains an original empirical study that explores two calendar years of Iowa criminal appeals and collects objective measures concerning appellate lawyers’ effectiveness. The data reveal that state appellate defenders provide better representation than court-appointed attorneys: appellate defenders obtain more favorable outcomes, they have better filings, and they seek and obtain state-supreme-court review more often.”

Frenemies of the Court: The Many Faces of Amicus Curiae, 49 U. Rich. L. Rev. 361 (2015)
“Amicus curiae occupy a unique place in the courts: non-parties who are nevertheless advocates, who are not bound by rules of standing and justiciability, and who can present the court with new information and arguments. Amicus participation has increased dramatically in recent years, and threatens to alter the adversarial process. Yet scholars and courts treat amicus curiae as a single category, not fully recognizing that this friendly term actually covers several very different types, ranging from court appointed advocates of a particular position, to friends of a party (sometimes paid by the party), to persons or groups who just missed qualifying as interveners.
To understand the reality of amicus practice, this article develops a taxonomy of amicus based on the relationship to the court and the parties. The article supports this taxonomy with a look at the history of amicus, and a survey of the rules and judicial attitudes in different jurisdictions. I [Helen A. Anderson] also explore the persistence of a myth that amicus should be “disinterested,” a myth that has led to confused reasoning about the proper role of amicus.
The modern increase in friend of a party amicus has taken us far from the origins of amicus as one with special expertise or knowledge relevant to the litigation. The article concludes that the Supreme Court’s open-door amicus policy should not be mindlessly copied by our other courts. Friend of a party briefs by ambitious law reform and business advocates may exert great influence, particularly on elected courts. The growth in amicus briefs can lead to distorted views of appellate decision-making, so that a court’s work is seen more like legislation and amicus briefs more like lobbying. To preserve the usefulness of the amicus institution, courts should exercise their gatekeeping authority.”

High Court Studies: Is the New York State Court of Appeals Still “Friendless?” An Empirical Study of Amicus Curiae Participation, 72 Alb. L. Rev. 701 (2009)
“[T]here is little doubt that amicus filings have flooded the federal courts as an attempt to control, or at least influence, judicial decision-making. 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 [Matthew Laroche] 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.”

Influence of Amicus Curiae Briefs on U.S. Supreme Court Opinion Content, SSRN (2013)
“Scholars have dedicated substantial research efforts to investigating whether interest group amicus curiae briefs influence the behavior of Supreme Court justices. Despite this, there has been little systematic attention devoted to exploring what is arguably the most important aspect of the Court’s policy outputs – its majority opinions. We [Pamela Corley, Paul M. Collins Jr. and Jesse Hamner] remedy this state of affairs by using plagiarism detection software to assess the ability of amicus briefs to shape the content of judicial opinions. Our findings indicate that the justices incorporate language from amicus briefs into their opinions based primarily on the extent to which amicus briefs contribute to their ability to make effective law and policy. These results add fresh insight into how interest groups influence the development of federal law by the Supreme Court.”

Litigating Amicus Curiae: When Does the Party Begin After the Friends Leave?, 41 Am. U.L. Rev. 1243 (1992)
“Part I traces the development of the amicus curiae from common law England to the device’s introduction into the American federal judicial structure. Part I also reviews the current status of the amicus curiae within the federal structure. Part II discusses the emergence of the litigating amicus curiae, from its quiet judicial grant on governmental amici to its near grant of party status to private interests. The Comment, in Part III, addresses how the unchecked use of the amicus curiae at the district court level endangers Article III standing requirements, as well as third-party practice under the Federal Rules of Civil Procedure. Part IV postulates that despite the Sixth Circuit’s recent warning, danger still remains that courts may trample the present federal judicial structure in order to seek fairness and efficiency. As a result, Part V sets forth common law and Federal Rule-based solutions to bridle the elusive amicus device. Both approaches seek to limit vast district court discretion and place the amicus device within the confines of the Federal Rules of Procedure, while maintaining the aspects that have contributed to the longevity and usefulness of the amicus.”

Ordering Proof: Beyond Adversarial and Inquisitorial Trial Structures, SSRN (2015)
“In typical trials, judges and juries will find it easier to remember the proof that occurs early in the process than what comes later. Moreover, once a fact-finder starts to form a working hypothesis to explain the facts of the case, they will be biased towards interpreting new facts in a way that confirms that theory, rather than undermines it. These two psychological mechanisms will often combine to create a strong “primacy effect,” in which the party who goes first gains a subtle but significant advantage over the opposing party. In this article, I [Mark Spottswood] propose a new method of ordering proof, designed to minimize the inaccuracy or unfairness that can arise due to primacy effects. A neutral third person, rather than the parties, would have the responsibility to prepare an opening “statement of the dispute,” which would take the place of partisan opening statements. In lieu of separate, partisan cases-in-chief, this neutral third party would also decide the order in which witnesses testify, balancing considerations of clarity, efficiency, and neutrality between the parties. This proposed ordering would, however, be subject to variations by agreement among the parties. In a jury trial, the presiding judge could perform this function, while in non-jury trials, a magistrate judge or an appointed master would do so. After exploring the reasons why this new mode of ordering proof would be likely to improve the fairness and accuracy of our system without excessive cost or inconvenience, I propose a policy experiment, in which the proposed method is tested in a random selection of jurisdictions, so that its impacts on outcomes, costs, and litigant satisfaction can be measured.”

Putting Justice Kagan’s “Hobbyhorse” Through Its Paces: An Examination of the Criminal Defense Advocacy Gap at the U.S. Supreme Court, 103 Geo. L.J. 228 (2014)
“I [William C. Kinder] argue that the criminal defense advocacy gap observed by Justice Kagan does exist; that the advocacy gap places criminal defendants at a distinct disadvantage before the Court; and that to close this advocacy gap, more criminal defense attorneys should accept assistance from Supreme Court specialists once a case reaches the merits stage of Supreme Court litigation. Part I presents a statistical analysis of Justice Kagan’s assertion that criminal defendants are more likely than other litigants to be represented at the Supreme Court by inexperienced advocates. I test that assertion by comparing the Supreme Court experience of criminal defense attorneys appearing at oral argument with that of opposing government counsel and other Supreme Court advocates during the last five Supreme Court Terms. The results show that Justice Kagan is correct: criminal defendants are significantly more likely than other litigants to be represented by counsel making their first Supreme Court argument. This disparity increases when the experience of defense attorneys is compared with that of their opposing government counsel. Part II of this Note asks whether the criminal defense experience deficit is a problem. It answers that question by presenting the results of empirical studies that show an attorney with previous Supreme Court experience is more likely to achieve a positive outcome for his client at the merits stage than counsel without Supreme Court experience. These studies suggest that criminal defendants who are represented by inexperienced counsel are at a distinct disadvantage at the Supreme Court, especially in light of the extensive Supreme Court expertise often wielded by their government adversaries. Further, these studies suggest that the criminal defense experience deficit is a cause for concern for the entire country because the decisions made by the Court in criminal cases shape civil liberties for all who live, work, and travel in the United States. Part III examines the implications that these data have for criminal defense attorneys who reach the merits stage of Supreme Court litigation. Although there may be some promise in making systemic reforms to improve criminal defense advocacy at the Supreme Court, I argue that the simplest and most effective way to address the criminal defense advocacy gap is for criminal defense attorneys who lack Supreme Court experience to be more willing to accept briefing and argument help from Supreme Court experts.”

Should the Supreme Court Stop Inviting Amici Curiae to Defend Abandoned Lower Court Decisions?, 63 Stan. L. Rev. 907 (2011)
“Forty-three times since 1954 – approximately twice every three Terms – the Supreme Court has heard a case in which no party argued one side of the issue before the Court, generally because the party who prevailed in the lower court refused to defend its victory below. When faced with this unusual, nonadversary posture, the Court has tapped an attorney to brief and argue the case as an amicus curiae in support of the orphaned argument. This practice raises a number of questions: First, at the most basic descriptive level, why has it been necessary? If the respondents themselves did not wish to defend their victories below, then whom were the appointed amici representing? Second, did these uncontested cases run afoul of Article III’s limitation of federal jurisdiction to “cases” and “controversies,” or the American tradition of adversarial litigation? And third, even if the invitations were constitutionally permissible, was it prudent for the Court to spend its scarce certiorari grants on them rather than waiting for more traditional cases to present the same issues?
This Note explores some answers to those questions. It identifies four broad categories into which these cases fall, based on the reasons the appointment of an amicus was deemed necessary, and evaluates each against the principal goals of the adversary system. Often the Court’s role as a neutral adjudicator of disputes is aided by the assistance of an amicus curiae who can represent the lower court’s position on an issue of independent interest to the courts, such as subject matter jurisdiction. But there are some questions that the Court is not empowered to answer unless they are contested, such as issues and arguments that the parties are entitled to waive – and sometimes have actively chosen to waive – or those that have become moot on appeal. To the extent appointing an amicus enables the Court to resolve legal questions that are not squarely presented by a live controversy, the practice itself should be abandoned, lest the Court appear to be reaching out to address issues that do not arise organically. Even where a live controversy does remain, it may be imprudent to choose less-than-fully-adversarial cases as vehicles to set national precedent. The Note concludes by proposing three criteria to determine the propriety of inviting an amicus to argue an unrepresented position, and finds that under those criteria, fifteen of the forty-three appointments were probably ill-advised.”

Social Science and the Courts: The Role of Amicus Curiae Briefs, 15 Law & Hum. Behav. 1 (1991)
“Social scientists have increasingly become involved in the submission of amicus curiae or “friend of the court” briefs in legal cases being decided by state and federal courts. This increase has triggered considerable debate about the use of briefs to communicate relevant social science research. This article evaluates the strengths and weaknesses of various methods of summarizing social science research for the courts. It also reviews the procedures for submitting briefs developed by the American Psychology-Law Society which, in collaboration with the American Psychological Association, has submitted its first brief in Maryland v. Craig, a case recently decided by the U.S. Supreme Court.”

Supreme Court and Junk Social Science: Selective Distortion in Amicus Briefs, 72 N.C.L. Rev. 91 (1993)
“Against the backdrop of the Supreme Court’s three most recent cases deciding the constitutionality of punitive damages, Professors Rustad and Koenig examine the way partisan organizations distort empirical social science research in amicus briefs. They label this “junk social science” because the empirical findings presented to the Justices have the aura of social science but do not follow the scientific truth-seeking norms that regulate valid research. Although the amicus briefs contained no outright fabrications, Professors Rustad and Koenig find a pattern of over-generalizations from limited social science data, selective distortions of findings, normative statements that appear to be empirical information, and citations to questionable research specifically produced for litigation. They conclude that amici curiae have been transformed from “friends of the court,” whose role was to inform the Court of overlooked precedent or facts, to “lobbyists of the Court.” The politicization of amici briefs is disturbing because the Justices have no suitable mechanism for independently assessing the validity of empirical research submitted for constitutional fact-finding. To solve this problem, Professors Rustad and Koenig propose several mechanisms: providing court-appointed social science experts and social science special masters; increasing government funding for independent social science research into contested claims; encouraging social science associations to file amici briefs that advocate neither side; and expanding disclosure of the methodology and underlying data cited in amicus briefs.”

‘Too Many Notes’? An Empirical Study of Advocacy in Federal Appeals, SSRN (2015)
“The warp and woof of American law are threaded by the appellate courts, generating precedents on constitutional provisions, statutory texts, and common-law doctrines. While the product of the appellate courts is regularly the subject of empirical study, less attention has been given to the sources and methods of appellate advocacy. Given the central role of written briefs in the appellate process, we should examine seriously the frequent complaint by appellate judges that briefs are too long and that prolixity weakens persuasive power. In a study of civil appeals in the United States Court of Appeals for the Ninth Circuit, we discover that, for appellants, briefs of greater length are strongly correlated with success on appeal. For the party challenging an adverse decision below, persuasive completeness may be more important than condensed succinctness. The underlying cause of both greater appellant success and accompanying longer briefs may lie in the typically complex nature of the reversible civil appeal. In light of our findings, the current proposal to reduce the limits on number of words in federal appellate briefs may cut more sharply against appellants. Experienced appellate advocates submit that familiarity with appellate courts, the honed ability to craft the right arguments with the appropriate style in briefing, and expertise in navigating the appellate system provide superior legal representation to clients. Our study lends support to this claim. We found a positive correlation between success and experience for lawyers representing appellees, thus warranting further study of lawyer specialization.”

Trouble with Amicus Facts, 100 Va. L. Rev. 1757 (2014)
“The number of amicus curiae briefs filed at the Supreme Court is at an all-time high. Most observers, and even some of the Justices, believe that the best of these briefs are filed to supplement the Court’s understanding of facts. Supreme Court decisions quite often turn on generalized facts about the way the world works (Do violent video games harm children? Is a partial birth abortion ever medically necessary?) and to answer these questions the Justices are hungry for more information than the parties and the record can provide. The consensus is that amicus briefs helpfully add factual expertise to the Court’s decision-making.
The goal of this article is to chip away at that conventional wisdom. The trouble with amicus facts, I [Allison Orr Larsen] argue, is that today anyone can claim to be a factual expert. With the Internet, factual information is easily found and cheaply manufactured. Moreover, the amicus curiae has evolved significantly from its origin as an impartial “friend of the court.” Facts submitted by amici are now funneled through the screen of advocacy. The result is that the Court is inundated with eleventh-hour, untested, advocacy-motivated claims of factual expertise. And the Justices are listening. This article looks at the instances in recent years when a Supreme Court Justice cites an amicus for a statement of fact. It describes the way the brief, rather than the underlying factual source, is cited as authority and the failure of the parties to act as an adequate check. I challenge this process as potentially infecting the Supreme Court’s decisions with unreliable evidence, and I make suggestions for ways to reform it. It is time to rethink the expertise-providing role of the Supreme Court amicus and to refashion this old tool for the new purpose to which it is currently being used.”

Utility of Pro Bono Representation of U.S.-Based Amicus Curiae in Non-U.S. and Multi-National Courts as a Means of Advancing the Public Interest, 28 Fordham Int’l L.J. 88 (2004)
“Among the myriad ways that the interests of underprivileged persons and groups can be protected and promoted, and other causes of public interest can be served, is through the participation by amicus curiae in litigation adjudicating relevant issues. Amicus participation has a long and venerable tradition with civil rights and other social justice causes in the United States. Used in a judicious fashion with adequate safeguards, pro bono representation of amici can serve such interests in non-U.S. and multi-national tribunals. Although some have questioned whether the amicus curiae practice has lost sight of its role as a “friend of the court,” and become instead a “friend of the party,” amicus briefs have been filed with increasing frequency. It appears that courts give consideration to arguments advanced by amici, who assist the court by presenting alternative or supplementary arguments or empirical factual information, and thus play an important role in judicial analysis. In the international arena, amicus submissions can play a valuable role by presenting diverse experiences and perspectives to a court that may not previously have addressed the issue with which the court is confronted. Pro bono representation of under-privileged amici is critical as a means of fostering their interests, ensuring they are not over-shadowed by better-resourced amici, and providing assistance where other support has not adequately matured. Disclosures such as the nature of the amici’s interests and sources of funding help promote credibility and deter misplaced inferences of bias. Because amici curiae, like other litigants, must avoid knowing misstatements of law or fact, efforts to influence the court’s determination through the amici device is directed through a prism of analytical thought or empirical foundation that is visible to the litigants and the public at large. Advocacy through the amicus device thereby helps further the administration of justice by promoting consideration of diverse viewpoints.”

AMERICAN LAW REPORT

Validity, Construction, Application, and Effect of Civil Rights of Institutionalized Persons Act [CRIPA], 42 U.S.C.A. SS 1997-1997j, 93 A.L.R. Fed. 706 (1989)
“Several cases have addressed issues concerning CRIPA’s effect as to the propriety of intervention or amicus curiae participation by the United States in civil actions (S 7). It has been held that S 1997c’s provision for the intervention of the United States in federal civil actions seeking relief from alleged unconstitutional conditions in state institutions is constitutional (S 7[a]), that the United States would not be held to comply with S 1997c’s procedural provisions where it had intervened prior to the enactment of CRIPA (S 7[b]), that the United States’ right to intervene under other civil rights statutes was not affected by CRIPA (S 7[c]), and that the United States would not be required to satisfy CRIPA’s procedural requirements in order to maintain status as amicus curiae, which had been granted prior to the enactment of CRIPA (S 7[d]). As to another intervention issue, two courts have ruled that institutionalized persons themselves were not precluded by the provisions of CRIPA from intervening in CRIPA actions (S 8).”

SECONDARY SOURCES21

Amicus Briefs (National Association of Criminal Defense Lawyers)
“The Amicus Curiae Committee’s mission is to provide amicus assistance on the federal and state level in those cases that present issues of importance to criminal defendants, criminal defense lawyers, and/or the criminal justice system as a whole. Membership in NACDL is not a prerequisite either for amicus assistance from the Committee, or for authorship of an NACDL amicus brief.”

Amicus Curiae Briefs (American Law Sources On-line)22
“This page provides links to on-line versions of amicus curiae briefs (along with selected pleadings and briefs by parties in some cases) that were filed in the U.S. Supreme Court, the federal appellate courts, and state courts (including U.S. district courts) in the United States.”

Brief Bank (Innocence Network)
“We [Innocence Network] invite you to use this site to learn more about our members and exciting news, our annual conference and our membership guidelines and as a resource for past amicus briefs on post-conviction innocence claims.”

Civil Rights Litigation Clearinghouse (University of Michigan Law School)
“The Civil Rights Litigation Clearinghouse, at the University of Michigan Law School, brings together and analyzes information and documents about important civil rights cases across the United States.”

Preview of United States Supreme Court Cases: Briefs (ABA)
“Preview is an eight-issue subscription publication that provides, in advance of oral argument, expert, plain-language analysis of all cases given plenary review by the Supreme Court. Preview Issues 1-7 precede the Court’s seven argument sessions from October to April. Published in July following the close of the Court’s term at the end of June, Preview Issue 8 reviews the term using a combination of charts, statistics, case summaries, and essays.” The web site features links to briefs from the current term and the preceding ten years.

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1 See Genesis 18:16-33 (KJV).

2 See Ken Armstrong, Broken on the Wheel, The Marshall Project, Mar. 12, 2015 (“For Voltaire, the Calas case was but the beginning of his life’s last chapter. In his twilight years he became an 18th Century version of the Innocence Project, taking on, and prevailing in, one case after another. For so long a darling of high society, he became a champion of the people.” Id.); Voltaire –Father of the Innocence Campaign, Justice Denied, Winter 2007, at 29.

3 See Donald E. Wilkes, Jr., “J’accuse …!” Emile Zola, Alfred Dreyfus, and the Greatest Newspaper Article in History, Flagpole Mag., Feb. 11, 1998, at 12. See also Douglas G. Morris, Chp. 8 “A German Dreyfus Affair: The Rule of Law, Reaction, and Honor in the Fechenbach Case” in Justice Imperiled: The Anti-Nazi Lawyer Max Hirschberg in Weimar Germany (U. Mich. Press 2005)(“Thus, the Dreyfus Affair and the Fechenbach case involved convictions of persons with claims of different types of innocence, but to actual innocence nonetheless—whether because the crime was pinned on the wrong person, as with Dreyfus, or because innocent acts were criminalized, as with Fechenbach.” Id. at 187).

4 Indeed, the concept of collective responsibility for justice likely began with the question: “Am I my brother’s keeper?” See Genesis 4:9 (KJV). See generally Eyal Benvenisti, Sovereigns as Trustees of Humanity: On the Accountability of States to Foreign Stakeholders, 107 A.J.I.L. 295 (2013); Paul Mertenskotter, National Courts as “Trustees of Humanity”?, 46 N.Y.U. J. Int’l L. & Pol. 291 (2013).

5 The friends of justice come from many walks of life. See generally John Dugdale, Facts and Fictions: Literary Advocates of Justice, The Guardian, June 17, 2009.

6 See generally Padideh Ala’i, Judicial Lobbying at the WTO: The Debate Over the Use of Amicus Curiae Briefs and the U.S. Experience, 24 Fordham Int’l L.J. 62 (2000)(“The use of amicus curiae briefs dates back to Roman law. “The function of the amicus curiae at common law was one of oral ‘shepardizing'” or “the bringing up of cases not known to the judge.” Amicus curiae also included testimony by those who had been involved in the legislative process and in cases where the meaning of a statute was at issue. Any bystander, including non-lawyers, was allowed to appear as amicus curiae if they possessed either a knowledge of the fact or the law that was deemed by the court to be relevant in achieving a just result. Historically an amicus curiae “did not even have to be an attorney to intervene, and the general attitude of the courts was to welcome such aid, since ‘it is for the honor of a court of justice to avoid error.'”” Id. at 84-85 (footnotes omitted).); Michael K. Lowman, The Litigating Amicus Curiae: When Does the Party Begin After the Friends Leave, 41 Am. U.L. Rev. 1243 (1992) (“[T]he amicus curiae has a long lineage extending from Anglo-American common law, from as far back as the 14th century, and Roman law. Traditionally, the amicus curiae was not a party to the litigation, but served as an impartial assistant to the judiciary, providing advice and information to a mistaken or doubtful court. . . . No longer a mere friend of the court, the amicus has become a lobbyist, an advocate, and, most recently, the vindicator of the politically powerless. As federal courts confronted ever more complex cases and sought innovative techniques to manage judicial resources and secure fair representation of interests outside their jurisdiction, the amicus curiae device provided a potential solution. . . . As evidenced in recent litigation, the amici performed various roles normally reserved for party participants.” Id. at 1243-1246).

7 Posthumous case investigations are another species of amicus addressed to present and future generations. See, e.g., Paul C. Giannelli, Junk Science and the Execution of an Innocent Man, 7 N.Y.U. J.L. & Liberty 221 (2013) (“Cameron Todd Willingham was tried and executed for the arson deaths of his three little girls. The expert testimony offered against him to establish arson was junk science. The case has since become infamous, the subject of an award-winning New Yorker article [David Grann, Trial by Fire: Did Texas Execute an Innocent Man?, The New Yorker, Sept. 7, 2009], numerous newspaper accounts, and several television shows.”); James S. Liebman et al., Los Tocayos Carlos, 43 Colum. Hum. Rts. L. Rev. 711 (2012) (“The Wrong Carlos and this accompanying website help to answer these haunting questions. Based on one of the most thorough investigations of a criminal case in U.S. history, the groundbreaking book by Columbia Law School Professor James Liebman and a team of his former students: Shawn Crowley, Andrew Markquart, Lauren Rosenberg, Lauren Gallo White and Daniel Zharkovsky, uncovers evidence that Carlos DeLuna, a poor Hispanic man with childlike intelligence who was executed in Texas in 1989, was innocent.” See also James S. Liebman and the Columbia DeLuna Project, The Wrong Carlos: Anatomy of a Wrongful Execution (Colum. U. Press 2014)); Paul Finkelman, U.S.-Dakota War of 1862: ‘I Could Not Afford to Hang Men for Votes.’ Lincoln the Lawyer, Humanitarian Concerns, and the Dakota Pardons,” 39 Wm. Mitchell L. Rev. 405 (2013) (“In 1862 there was a short war in Minnesota initiated by some members of the Dakota (Sioux) Nation. The Dakota fought against settlers in central Minnesota, and ultimately against the Minnesota militia and U.S. Army elements. After the War was over the Army tried nearly 400 Dakota soldiers by military commissions, and sentence 303 to death. President Lincoln, acting under the militia act of 1862, refused to sign the warrants of execution for 87 percent of those sentenced to die. In the end Lincoln reprieved 265 of the condemned men. The remain 38 were eventually hanged. This even was both the largest mass hanging in American history and also the largest mass pardon of my people sentenced to death.”). See also Mary Kelly Tate, Temporal Arbitrariness: A Back to the Future Look at a Twenty-Five-Year-Old Death Penalty Trial, SSRN (2015)(“This essay grapples with a previously unexamined feature of the death penalty: temporal arbitrariness. How does the circumstance of time affect capital defendants? What might this mean for the stability of our notions of justice? I [Mary Kelly Tate] explore these questions using a 25-year-old death penalty trial as a case study, examining the procedural and factual highlights of the case and situating it in its temporal milieu. I then explore how the roles of doctrine, policy, and cultural attitudes would dramatically alter the nature and probable outcome of the case today, illustrating how temporal arbitrariness further exposes the death penalty’s unsteady administration and indeed, its crumbling legitimacy.”).

8 See, e.g., First Amendment Amicus Brief Clinic (UCLA Law); Robert S. Chang, The Fred T. Korematsu Center for Law and Equality and Its Vision for Social Change, 7 Stan. J. C.R. & C.L. 197(2011) (“I [Robert S. Chang] present the Korematsu Center’s approach to its work that integrates research, advocacy, and education. I discuss two of our major initiatives, our Civil Rights Amicus Project and our efforts to address racial disproportionality in Washington State’s criminal justice system. Both of these efforts show how our integrated approach that combines research, advocacy, and education can provide a model for how a center located within a law school can help to achieve durable social change.” Id. at 200.).

9 Indeed, the role of amicus can approach the status of parties, third party intervenors, public advocates, class actions, compulsory joinder or consolidation, private attorney generals, jus tertii, special masters and conceptually resemble standby counsel, second prosecutors, trustees, guardians, magistrates and law clerks, without the encumbrances of procedural or jurisdictional boundaries. See Lowman, supra note 6, at 1246 (“[S]ome federal district courts have permitted the amicus to actively engage in oral argument, to introduce physical evidence, to examine witnesses, to conduct discovery, and even to enforce previous court decisions upon party-participants to the litigation.” Id.).

10 There is the subtle problem of amicus facts entering into the content of judicial opinions without sufficient screening, a collateral consequence of “cut-and-paste” opinion writing and the vagaries of independent judicial research. See Pamela Corley et al., Influence of Amicus Curiae Briefs on U.S. Supreme Court Opinion Content, SSRN (2013)(methodology included use of “plagiarism detection software”); Matthew Laroche, High Court Studies: Is the New York State Court of Appeals Still “Friendless?” An Empirical Study of Amicus Curiae Participation, 72 Alb. L. Rev. 701 (2009)(citation study). See generally Ken Strutin, Case Law in an Era of Heightened Scrutiny, LLRX, Aug. 18, 2014 (citing cut-and-paste studies). Thus, overreliance on amici without sufficient vetting of their facts and hidden biases might dilute impartial fact-finding. See Allison Orr Larsen, Trouble with Amicus Facts, 100 Va. L. Rev. 1757 (2014).

11 See Brian P. Goldman, Should the Supreme Court Stop Inviting Amici Curiae to Defend Abandoned Lower Court Decisions?, 63 Stan. L. Rev. 907 (2011).

12 See Larsen, supra note 10.

13 See, e.g., R. Sup. Ct. U.S. Rule 37; Fed. R. App. Proc. Rule 29.

14 See Bruce A. Green, Gideon’s Amici: Why Do Prosecutors So Rarely Defend the Rights of the Accused?, 122 Yale L.J. 2336 (2013)(“In Gideon v. Wainwright, [372 U.S. 335 (1963)] twenty-three state attorneys general, led by Walter F. Mondale and Edward McCormack, joined an amicus brief on the side of the criminal accused, urging the Supreme Court to recognize indigent defendants’ Sixth Amendment right to appointed counsel in felony cases. This was a unique occurrence.”).

15 See, e.g., Davis v. United States Sentencing Comm’n, 716 F.3d 660 (D.C.C. 2013) (Pro se prisoner, appellant Brian A. Davis, challenged federal sentencing laws on grounds of equal protection. To explore and further explain the habeas-channeling rule raised by his motion for declaratory relief, the Circuit court appointed amicus counsel. “Davis appealed, and we appointed an amicus to brief and argue the case on his behalf.” Id. at 662. The dismissal of his complaint was reversed.). See generally Brian P. Goldman, Should the Supreme Court Stop Inviting Amici Curiae to Defend Abandoned Lower Court Decisions?, 63 Stan. L. Rev. 907 (2011).

16 See generally Ken Strutin, Post-Conviction Representation, Pro Se Practice and Access to the Courts, LLRX, Feb. 19, 2013.

17 See Ken Strutin, Realignment of Incarcerative Punishment: Sentencing Reform and the Conditions of Confinement, 38 Wm. Mitchell L. Rev. 1313 (2012); Ken Strutin, Justice Without ‘Bounds’ and the Poverties of Confinement, N.Y.L.J., Sept. 23, 2014, at 5. Indeed, some commentators have suggested that attorneys would benefit from consulting with super-litigants, akin to amici, based on their expertise in knowledge, formats and forums. See, e.g., William C. Kinder, Putting Justice Kagan’s “Hobbyhorse” Through Its Paces: An Examination of the Criminal Defense Advocacy Gap at the U.S. Supreme Court, 103 Geo. L.J. 228 (2014). See also Tyler J. Buller, The Effect of Counsel on Criminal Appeals, SSRN (2015). Notably, a prisoner’s ability to express their position and concerns is circumvented by the limited right to file a supplemental pro se brief and sometimes the opposition of an Anders brief [Anders v. California, 386 U.S. 738 (1967)] filed by appellate counsel, which can indirectly reduce an imprisoned petitioner to an amicus in their own case. See generally Eric B. Schmidt, A Call to Abandon the Anders Procedure that Allows Appointed Appellate Criminal Counsel to Withdraw on Grounds of Frivolity, 47 Gonz. L. Rev. 199 (2011); Martha C. Warner, Anders in the Fifty States: Some Appellants’ Equal Protection Is More Equal than Others’, 23 Fla. St. U. L. Rev. 625 (1995-1996).

18 See Jeffrey C. Dobbins, New Evidence on Appeal, 96 Minn. L. Rev. 2016, 2052 (2012); Ellie Margolis, Beyond Brandeis: Exploring the Uses of. Non-Legal Materials in Appellate Briefs, 34 U.S. F. L. Rev. 197. (2000); Ellie Margolis, Teaching Students to Make Effective Policy Arguments in Appellate Briefs, Perspectives, Winter 2001, at 73. In addition, clemency clinics offer an example of how such a program might take shape. See Ken Strutin, Clemency Clinics: A Blueprint for Justice, LLRX.com, June 17, 2012. See generally Ken Strutin, Clemency: A Remedy in Need of Revival, N.Y.L.J., Aug. 21, 2013, at 4; Ken Strutin, Clemency: Justice to the Nth Degree, N.Y.L.J., Apr. 20, 2012, at 4. What is more, such a clinic would open the door to addressing systemic issues such as forensic evidence reform. See Ken Strutin, Forensic Clemency: Using Science to Bend the Arc of Justice, N.Y.L.J., Sept. 25, 2012, at 5. And they would offer the opportunity for interdisciplinary collaboration. See, e.g., Ken Strutin, Allied Learning Experiences: Multidisciplinary Internship Collaborations, AALS Sect. on Teach. Methods Newsl., Winter 2011-2012, at 21. See generally Robert R. Kuehn and David A. Santacroce, 2013-14 Survey of Applied Legal Education (Center for the Study of Applied Legal Education 2015).

19 See generally Ken Strutin, Post-Conviction Justice in the Information Age: The Trial Never Ends, N.Y.L.J., Nov. 19, 2013, at 5. An example of amicus interest in prisoner cases is the filings in the long running litigation that resulted in the Supreme Court’s decision in Brown v. Plata, 131 S.Ct. 1910 (2011). See Schwarzenegger, Gov. of California v. Plata, Docket No. 09-1233 (ABA Sup. Ct. Preview); Plata v. Brown / Coleman v. Brown Three-Judge Court (Civ. Rts. Litigation Clearinghouse). On the other hand, it is sometimes necessary for a potential amicus to join such litigation as a full-fledged party in interest. See, e.g., CRIPA Investigation of the New York City Department of Correction Jails on Rikers Island (U.S. Atty S.D.N.Y. Aug. 4, 2014)(“The Department [of Correction] is currently the subject of a class action lawsuit brought by current and former inmates at Rikers alleging system-wide, unconstitutional use of force by staff against inmates. See Nunez v. City of New York, 11 Civ.5845 (LTS) (THK).” Id. at 3 n. 5); Benjamin Weiser et al., U.S. Plans Suit Over Conditions at Rikers Island, N.Y. Times, Dec. 19, 2014, at A1 (“Instead of filing a separate lawsuit against the city, Mr. Bharara’s office asked a federal judge in Manhattan on Thursday for permission to join in an existing class-action lawsuit over brutality at Rikers, Nunez v. City of New York, that had been filed by the Legal Aid Society and two private law firms, Emery Celli Brinckerhoff & Abady and Ropes & Gray. In contrast to Mr. Bharara’s investigation of the treatment of adolescent inmates, the Nunez case focuses on all Rikers inmates, regardless of age.”); John F. Wagner Jr., Validity, Construction, Application, and Effect of Civil Rights of Institutionalized Persons Act [CRIPA], 42 U.S.C.A. SS 1997-1997j, 93 A.L.R. Fed. 706 (1989).

20 The legislatures’ role in amicus work, an extension of interpellation, is beyond the scope of this article. See, e.g., Judithanne Scourfield McLauchlan, Congressional Participation as Amicus Curiae before the U.S. Supreme Court (American Legal Institutions 2005).

21 This is only a select list of resources. Amicus briefs can be found on official court sites, on the web pages of the parties themselves, and in the brief banks of law libraries, academic centers and legal publishers.

22 This site includes a very useful guide for constructing web searches and an insightful observation about the limits of amicus collections: “NOTE:—Experience has shown that maintaining a collection of links to amicus curiae briefs is impractical (for a small staff, at least). Briefs are numerous and transitory on the internet, and finding new links is inordinately time-consuming. Therefore, while the links on this page will be preserved for as long as they are viable, new links will not be added.” And with the advent of the Internet, electronic court filing, and legal databases, the search for amicus briefs can go well beyond the collections of courts, parties and law libraries.

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