Amicus curiae

Amicus curiae

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Encyclopedia
An amicus curiae is someone, not a party to a case, who volunteers to offer information to assist a court in deciding a matter before it. The information provided may be a legal opinion in the form of a brief
Brief (law)
A brief is a written legal document used in various legal adversarial systems that is presented to a court arguing why the party to the case should prevail....

 (which is called an amicus brief when offered by an amicus curiae), a testimony that has not been solicited by any of the parties, or a learned treatise on a matter that bears on the case. The decision on whether to admit the information lies at the discretion of the court. The phrase amicus curiae is legal Latin and literally means "friend of the court".

History


The amicus curiae figure originates in Roman law
Roman law
Roman law is the legal system of ancient Rome, and the legal developments which occurred before the 7th century AD — when the Roman–Byzantine state adopted Greek as the language of government. The development of Roman law comprises more than a thousand years of jurisprudence — from the Twelve...

. Starting in the 9th century, it was incorporated to English law, and was later extended to most of common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...

 systems. Later, it was also introduced in international law
International law
Public international law concerns the structure and conduct of sovereign states; analogous entities, such as the Holy See; and intergovernmental organizations. To a lesser degree, international law also may affect multinational corporations and individuals, an impact increasingly evolving beyond...

, in particular concerning human rights
Human rights
Human rights are "commonly understood as inalienable fundamental rights to which a person is inherently entitled simply because she or he is a human being." Human rights are thus conceived as universal and egalitarian . These rights may exist as natural rights or as legal rights, in both national...

. From there, it was integrated in some civil law
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...

 systems (it has recently been integrated in Argentina
Argentina
Argentina , officially the Argentine Republic , is the second largest country in South America by land area, after Brazil. It is constituted as a federation of 23 provinces and an autonomous city, Buenos Aires...

). Today, it is used by the European Court of Human Rights
European Court of Human Rights
The European Court of Human Rights in Strasbourg is a supra-national court established by the European Convention on Human Rights and hears complaints that a contracting state has violated the human rights enshrined in the Convention and its protocols. Complaints can be brought by individuals or...

, the Inter-American Commission on Human Rights
Inter-American Commission on Human Rights
The Inter-American Commission on Human Rights is an autonomous organ of the Organization of American States .Along with the...

, the Inter-American Court of Human Rights
Inter-American Court of Human Rights
The Inter-American Court of Human Rights is an autonomous judicial institution based in the city of San José, Costa Rica. Together with the Inter-American Commission on Human Rights, it makes up the human rights protection system of the Organization of American States , which serves to uphold and...

 and the Court of Justice of European Union.

Presentation


The role of an amicus is often confused with that of an intervener. The role of an amicus is, as stated by Salmon LJ (as Lord Salmon
Cyril Salmon, Baron Salmon
Cyril Barnet Salmon, Baron Salmon PC was a British judge.Invested to the Privy Council in 1964, Salmon was Lord Justice of Appeal from 1964 to 1972. On 10 January 1972, he was appointed Lord of Appeal in Ordinary and was created additionally a life peer with the title Baron Salmon, of Sandwich in...

 then was) in Allen v Sir Alfred McAlpine & Sons Ltd [1968] 2 QB 229 at p. 266 F-G:
I had always understood that the role of an amicus curiae was to help the court by expounding the law impartially, or if one of the parties were unrepresented, by advancing the legal arguments on his behalf.


The situation most often noted in the press is when an advocacy group files a brief in a case before an appellate court
Appellate court
An appellate court, commonly called an appeals court or court of appeals or appeal court , is any court of law that is empowered to hear an appeal of a trial court or other lower tribunal...

 to which it is not a litigant. Appellate cases are normally limited to the factual record and arguments coming from the lower court
Lower court
A lower court is a court from which an appeal may be taken. In relation to an appeal from one court to another, the lower court is the court whose decision is being reviewed, which may be the original trial court or an appellate court lower in rank than the superior court which is hearing the...

 case under appeal; attorneys focus on the facts and arguments most favorable to their clients. Where a case may have broader implications, amicus curiae briefs are a way to introduce those concerns, so that the possibly broad legal effects of court decisions will not depend solely on the parties directly involved in the case.

In prominent cases, amici curiae are generally organizations with sizable legal budgets. Non-profit legal advocacy organizations such as the American Civil Liberties Union
American Civil Liberties Union
The American Civil Liberties Union is a U.S. non-profit organization whose stated mission is "to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States." It works through litigation, legislation, and...

, the Landmark Legal Foundation
Landmark Legal Foundation
The Landmark Legal Foundation is non-profit 5013 conservative legal advocacy group, with a $1 million annual budget. The President is Mark Levin. Through litigation and direct interfacing with government agencies, it advances a platform of limited government...

, the Electronic Frontier Foundation
Electronic Frontier Foundation
The Electronic Frontier Foundation is an international non-profit digital rights advocacy and legal organization based in the United States...

, the American Center for Law and Justice
American Center for Law and Justice
The American Center for Law & Justice is a conservative Christian, pro-life group that was founded in 1990 by evangelical Pat Robertson.-History:...

 or NORML frequently submit such briefs to advocate for or against a particular legal change or interpretation. If a decision could affect an entire industry, companies other than the litigants may wish to have their concerns heard. In the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...

, federal courts
United States federal courts
The United States federal courts make up the judiciary branch of federal government of the United States organized under the United States Constitution and laws of the federal government.-Categories:...

 often hear cases involving the constitutionality
Constitutionality
Constitutionality is the condition of acting in accordance with an applicable constitution. Acts that are not in accordance with the rules laid down in the constitution are deemed to be ultra vires.-See also:*ultra vires*Company law*Constitutional law...

 of state laws. Hence states themselves may file briefs as amici curiae when their laws are likely to be affected, as in the Supreme Court case McDonald v. Chicago
McDonald v. Chicago
McDonald v. Chicago, 561 U.S. 3025, 130 S.Ct. 3020 , was a landmark decision of the Supreme Court of the United States that determined whether the Second Amendment applies to the individual states...

 when thirty-two states under the aegis of Texas (and California independently) filed such briefs.

Amici curiae that do not file briefs often present an academic perspective on the case. For example, if the law gives deference to a history of legislation of a certain topic, a historian may choose to evaluate the claim using their expertise. An economist, statistician, or sociologist may choose to do the same. Blog
Blog
A blog is a type of website or part of a website supposed to be updated with new content from time to time. Blogs are usually maintained by an individual with regular entries of commentary, descriptions of events, or other material such as graphics or video. Entries are commonly displayed in...

s, newspaper editorials, and other opinion pieces arguably have the capability to influence Supreme Court decisions as de facto amici curiae. They are not, however, considered as an actual amicus curiae in the sense that they do not submit materials to the Court, do not need to ask for leave, and have no guarantee that they will be read.

The court has broad discretion to grant or to deny permission to act as amicus curiae. Very controversial or far-reaching cases generally attract several such briefs.

Rules defining use in the United States


The Supreme Court of the United States
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...

 has special rules for amicus curiae briefs, covered generally by Supreme Court Rule 37. The Rule states, in part, such a brief should cover "relevant matter" not dealt with by the parties which "may be of considerable help". The cover of an amicus brief must identify which party the brief is supporting or if the brief only supports affirmance or reversal. Supreme Court Rule 37.3(a). The Court, inter alia, also requires that all non-governmental Amici identify those providing a monetary contribution to the preparation or submission of the brief. Supreme Court Rule 37.6. Briefs must be prepared in booklet format and 40 copies must be served with the Court.

In general, unless the amicus brief is being filed by the federal government (or one of its officers or agents) or a U.S. state, permission of the court (by means of motion for leave
Motion for leave
A motion for leave is a motion filed with the court seeking permission to deviate from an established rule or procedure of the court.The most common use of a motion for leave is to seek an extension to an already-passed timeframe....

) or mutual consent of the parties is required. Allowing an amicus curiae to present oral argument is considered "extraordinary".

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