The Amicus Curiae Phenomenon - Theory, Causes and Meanings

Transnational Law & Contemporary Problems (TLCP) (2019)

62 Pages Posted: 9 Apr 2019 Last revised: 7 Jul 2020

See all articles by Shai Farber

Shai Farber

Bar-Ilan University - Faculty of Law

Date Written: February 26, 2019

Abstract

This Article examines the phenomenon of the “Amicus Curiae” which is used in Common law, Civil Law, and International law. The article will show that in a short period of time, many countries around the world, including, among others, developing countries in Latin America, Asia, Africa, Eastern Europe, and including many international institutions, have adopted the practice of the Amicus Curiae or have substantially increased its use. In addition to the primary use of the Amicus Curiae procedure in various courts around the world, there is an increase in the range of issues in which Amicus briefs are submitted, namely; increase in the diverse courts who are willing to allow the Amicus Curiae procedure; increase of the Amicus in significant cases, including cases which deal with fundamental issues; an increase in the range and type of the entities that began making use of the Amicus. [As described below: The “Amicus Curiae Phenomenon”].

The article will show that the Amicus Curiae Phenomenon is tied to the changes occurring in court systems, the courts perception of their role in the judiciary process, and the way litigation is conducted. In the last three decades, we have witnessed a significant rise in courts involvement in society. This trend of greater involvement of courts in society is widespread in many countries, including countries with different legal systems and different political traditions. The courts have become increasingly aware of their social role, as well as society demands, and accordingly, the courts have become more involved in shaping society. In this context, there is a growing trend of reliance on different legal procedures to regulate and settle a wide range of issues which in the past were never litigated in the Judiciary Systems.

The article will show that Amicus Curiae create profound changes to the judiciary and in courts work because it is part of various procedures which are reshaping the function of the courts. The Amicus Curiae practice has helped develop the concept that the judicial process in many cases turns into a multi-dimension process with numerous players and wide-ranging implications. In many ways, this approach is the revival of the approach of the judicial process as a social process in which not only the formal parties are involved but also other entities, including, individuals, interest groups, experts and professional advisors. Simultaneously with these changes, Amicus Curiae integration within the courts helps teach us about the conception of the courts themselves and their function in society.

Keywords: Amicus Curiae Phenomenon, amicus, Transnational law, amici, Comparative Law, Law and Society

Suggested Citation

Farber, Shai, The Amicus Curiae Phenomenon - Theory, Causes and Meanings (February 26, 2019). Transnational Law & Contemporary Problems (TLCP) (2019) , Available at SSRN: https://ssrn.com/abstract=3341963

Shai Farber (Contact Author)

Bar-Ilan University - Faculty of Law ( email )

Faculty of Law
Ramat Gan, 52900
Israel

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