organizations, not joined as parties or otherwise enti-
tled to be heard in the case, to provide the judiciary
with insights or analysis that would otherwise be lack-
ing in decisions of significant import.
Amici lack important rights that parties enjoy. For
example, amici have no right to settle or refuse to settle
claims, to raise a claim or a defense that the parties did
not, or even to join a person that the parties did not.
There is no constitutional right to file an amicus brief.
The opportunity to be heard as an amicus rests with the
discretion of the court before whom the case is pending
or, in federal court, the consent of the parties or permis-
sion of the court. Typically, amicus briefs are thought to
address transcendent questions of law decided at the
appellate stage of a case. But it is within the discretion
of the court to accept an amicus brief at trial as well as
on appeal, whether labeled a pure or a mixed question of
law or fact.A Brief History
Authors such as Simpson and Vasaly have traced the
roots of the amicus curiae brief to ancient Rome, where
briefs were submitted to provide legal expertise directly
to the judiciary at their discretion. Seventeenth-century
England provides the first known occurrence of what is
now understood as an amicus brief to aid judges in
avoiding legal errors and maintaining judicial honor.
The first known instance in the United States was when
an amicus curiae brief was requested of House Speaker
Henry Clay in 1812 by the Supreme Court to aid the
Court in the application of law to a land dispute between
two states. It was not long after this use of an amicus
curiae brief that the practice of filing amicus briefs in
appellate courts began in earnest. Although the core pur-
pose of the amicus curiae brief has always been a non-
partisan effort to educate the court and not to advance
the interests of a specific party, there has always been a
tension between these motivations.
The amicus curiae brief may seek to serve numer-
ous functions categorized by Simpson, include the fol-
lowing: (a) to address issues of policy; (b) to provide a
more appealing advocate; (c) to support the granting of
a Supreme Court review; (d) to supplement the brief of
a party; (e) to give a historical perspective; (f) to pro-
vide technical or scientific aid; (g) to endorse a partic-
ular party in the case; and (h) to try and correct, limit,
publish, or “depublish” an issued judicial opinion.
These functions are not mutually exclusive; thus an
amicus curiae brief may serve multiple purposes.PPrreevvaalleennccee aanndd IInnfflluueennccee
ooff tthhee AAmmiiccuuss CCuurriiaaee BBrriieeff
The prevalence of amicus curiae briefs submitted to
the courts, and the Supreme Court in particular, has
increased over time. During the first few decades of the
20th century, Kearney and Merrill found that amicus
curiae briefs were only filed in approximately 10% of
the Supreme Court’s cases. This practice has increased
dramatically. For example, in the most recent decades,
at least one amicus curiae brief has been filed in at least
85% of the Court’s cases that incorporated oral argu-
ments. Thus, today, cases with no amicus curiae filings
have become the anomaly.
As the number of amicus curiae briefs filed has
increased over time, so has the ability of the amicus
curiae brief to influence the outcome of court cases,
especially where there are many amicus curiae briefs
that aid the parties in strong calls for change in the
areas of social policy. Amicus curiae briefs that focus
on social policy instead of pure legal argument have
come to be known as “Brandeis briefs,” named for the
first filing by Louis Brandeis, later appointed a
Supreme Court justice. Brandeis’s use of a nonlegally
oriented brief to highlight social science data has
become a model for presenting such information.Perceptions of the
Amicus Curiae Brief
Perceptions of the use and utility of amicus curiae
briefs vary widely within the legal profession. From
one point of view, the amicus curiae brief is a benefi-
cial vehicle, providing arguments, technical informa-
tion, or authorities not included by the parties. Those
agreeing with this view point to the numerous refer-
ences to amicus curiae briefs in many court opinions to
suggest that courts find amicus curiae briefs helpful.
Some members of the legal community hold an
opposite view. Many judges report that amicus curiae
briefs replay the arguments put forth by the parties
and provide the court little or no assistance. Those
who subscribe to this view contend that amicus curiae
briefs are a nuisance, burdening judges and their staffs
yet providing few, if any, benefits. For those who view
the amicus curiae brief in this way, either prohibiting
or limiting the submission of amicus curiae briefs
would improve the judicial system.
Finally, a middle ground regarding the amicus curiae
brief acknowledges its prevalence and its potentialAmicus Curiae Briefs——— 27A-Cutler (Encyc)-45463.qxd 11/18/2007 12:41 PM Page 27