Faux Advocacy in Amicus Practice

Abstract

Amicus brief filing has reached “avalanche” volume. Supreme Court Justices and lower court judges look to these briefs particularly for non-case-specific factual information—"legislative facts”—relevant to a case. This Article calls attention to a recurrent yet unrecognized problem with amicus filings offering up legislative facts in the many cases centrally involving the most vulnerable members of society—namely, adults incapacitated by mental illness, intellectual disability, or other condition, and children. Some amici present themselves as advocates for such persons but use the amicus platform to serve other constituencies and causes, making false or misleading factual presentations about the interests of the group for whom they purport to speak and urging the Court to act on rights of other parties—rights that might operate contrary to the welfare of the non-autonomous persons. Law professors can present themselves as scholarly experts on the rights and interests of non-autonomous persons when they actually are not and their real aim is furthering a personal political agenda. The danger of duping judges seems especially great with these faux advocates and experts, both because they bear the aspect of disinterested altruism and because their supposed beneficiaries are incapable of choosing, monitoring, or correcting them. This Article catalogs the various manifestations of faux advocacy, using several child welfare cases to illustrate, then proposes new checks on amicus practice, including ex ante vetting and ex post penalties, to eliminate this unethical and dangerous practice.

Keywords: amicus curiae, supreme court, vulnerable populations, federal courts, legal ethics, professional responsibility, legal malpractice