Frenemies of the Court: The Many Faces of Amicus Curiae

Helen A. Anderson

University of Washington - School of Law

December 31, 2014

49 U. Rich. L. Rev. 361-416 (2015)
University of Washington School of Law Research Paper No. 2014-25

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 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.

Number of Pages in PDF File: 56

Keywords: amicus, amicus curiae, appellate procedure, litigation

Open PDF in Browser Download This Paper

Date posted: August 2, 2014 ; Last revised: October 30, 2015

Suggested Citation

Anderson, Helen A., Frenemies of the Court: The Many Faces of Amicus Curiae (December 31, 2014). 49 U. Rich. L. Rev. 361-416 (2015); University of Washington School of Law Research Paper No. 2014-25. Available at SSRN: https://ssrn.com/abstract=2474729 or http://dx.doi.org/10.2139/ssrn.2474729

Contact Information

Helen A. Anderson (Contact Author)
University of Washington - School of Law ( email )
William H. Gates Hall
Box 353020
Seattle, WA 98105-3020
United States

Feedback to SSRN

Paper statistics
Abstract Views: 1,667
Downloads: 179
Download Rank: 127,596