All Courts Should Abolish the Need for Amici to Seek Leave of the Parties

And pro hac vice fees should be waived for counsel representing amici pro bono

|The Volokh Conspiracy |

Mike Dorf offers a welcome suggestion: the Supreme Court should eliminate the requirement that amici have to seek leave of the parties.

 The Court should simply abolish the requirement of consent with the backstop of leave and allow anyone and everyone who wants to file an amicus brief to do so. The fact that many parties give blanket consent shows that the world will not end if parties no longer play a gatekeeping role. And it's a waste of the Court's time to have to decide whether an amicus brief should be allowed. It's easier just to start reading and put down a brief that proves unhelpful.

Generally, after certiorari is granted, blanket consent is provided. At this juncture, the parties are usually represented by frequent participants before the Supreme Court. They understand the game, and recognize that withholding consent is futile. However, at the cert stage, parties are often represented by counsel who do not frequently participate before the Supreme Court. At this juncture, consent is often denied; counsel think there is some advantage for doing so. (There is no advantage.) Thus, amici have to seek leave of the Supreme Court. So long as the brief meets all of the formalities, the Court will grant leave.

But why bother with this additional step? Dorf explains:

Requiring consent of the parties seems rooted in the fiction that the Supreme Court sits to resolve disputes between parties. That's a formal limitation on its jurisdiction per the case-or-controversy requirement, but given the discretionary nature of Supreme Court review and its use in cases that present important questions, the Court is not a court of error.

I emphatically agree. The Court should dispense with this requirement, and permit amici to submit briefs without seeking leave.

Indeed, this rule should be extended to the lower courts. I've found that in the Circuit Courts, and especially the District Courts, parties routinely withhold consent. Even the federal government. The Solicitor General's office will usually grants blanket consent at the Supreme Court. In my experiences, DOJ Civil Appellate does grant consent, though they may inquire about the contents of the brief. A slight burden, but a reasonable request.

However, in the District Court, DOJ Federal Programs "takes no position" on amici requests. That posture still requires seeking leave of court. This process is a waste of time. The motion will be granted. There is no reason to force amici (often working pro bono) to prepare an additional motion, which the court then needs to rule on. And, in almost every case, the lower court will grant the motion.

There is another obstacle to filing amicus briefs in the District Courts: Pro Hac Vice fees. In the Southern District of New York, for example, that fee is $200. Attorneys who represent paying amici can easily be reimbursed for this fee. However, attorneys who represent amici pro bono cannot be reimbursed for this fee. In some cases, law firms may eat the fee. But for academic amici, law schools may not have the budget for such expenditures. (Mine does not.) Moreover, when several professors sign the brief, each attorney must pay the fee.

My proposal: create a fee waiver for attorneys who represent amici pro bono. Alternatively, so long as one attorney on the brief is admitted to the district, pro hac vice fees should be waived for other attorneys who represent the amicus pro bono.  Courts should incentivize, not discourage amici filings from parties who are not financially interested.

Update: Several colleagues have told me that district courts routinely deny leave to file amicus briefs. Here is one such decision from the District of Arizona:

Lastly, the Court observes that the Arizona Prosecuting Attorneys Advisory Council, Pima County Attorney's Office, Arizona Crime Victim Rights Law Group, Arizona Coalition to End Domestic Violence, and National Crime Victim Law Institute have filed amicus curiae briefs. (Docs. 38, 40, 41.) The Court generally does not favor amicus curiae briefs and does not permit them to be filed absent consent of all parties or a substantial showing that the amicus curiae will present relevant matters that have not or could not have been brought to the Court's attention by the parties. Therefore, not having obtained leave of Court and satisfied the above, the amicus curiae briefs with be stricken. Any request for leave to submit an amicus curiae brief may be filed following the filing of a responsive pleading by an amended defendant in this action.

This standard, which is not set by any rule, is far too stringent: counsel must make a "substantial showing that the amicus curiae will present relevant matters that have not or could not have been brought to the Court's attention by the parties." If a District Court spends the time to review an amicus brief, then there is zero marginal cost to admit the brief into the record. Such a decision does not constitute an endorsement of the content.

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  1. “Alternatively, so long as one attorney on the brief is admitted to the district, pro hac vice fees should be waived for other attorneys who represent the amicus pro bono.”

    As long as the one actually signing the brief is admitted, I’ve never seen a problem with other attorneys’ names appearing on the brief (without signature), regardless of whether they’ve been admitted pro hac.

  2. Beware AI. It hardly seems a stretch at all that AI software can reformat any statement into a properly formatted amicus submission.
    Even individual comments to these blog posts could be automatically turned into amicus briefs by AI software.

    Barriers to that are the fees and the requirement that signatories be licensed attorneys, and the requirement (?) that briefs come by ordinary mail, not electronically. Beware weakening those barriers, especially the fee one.

    100,000 amicus briefs per case (potentially with 100,000 made up names of attorneys) would break the system. We call that DDOS (distributed denial of service) attack.

    1. This is a reasonable concern, but it can probably be handled via the account creation and document submission process

    2. Any real attorney who did something so stupid could be easily punished and blacklisted. That’s pretty unlikely possibility. More likely to pay the bill with counterfeit money.

    3. Requirements that briefs come by physical mail and not electronically seem to be jurisdiction-specific requirements – and rapidly becoming the exception from what little I can see. In other words, that horse is already out of the barn.

      Requiring the signatories to be licensed attorneys is not defense at all. Signatures are too easily forged. That horse is out of the barn, too.

      The only defense you listed that’s actually effective is the fee requirement – and a fee a lot lower than $200/person would be more than sufficient to manage that risk. Even just a few pennies per transaction would be sufficient to stop your hypothetical DDOS attack.

  3. Alternatively, just eliminate amici briefs completely. Its mainly for the lawyers to use on their resumes and the sponsors to fund raise off.

    Just more stuff for the clerks to read. Maybe the Court could hear more cases instead.

    1. I disagree. Politicians signing on to an amicus brief is useful signaling to the Court. For example, a majority of senators and House members and the Vice President signed onto a brief that said that the 2nd Amendment protected and individual right to keep and bear arms. If that wasn’t a green light that the Court wouldn’t receive pushback and that it’s decision would be enforced, I don’t know what is.

      1. A statement of interest, one line, can deal with that.

        1. No, not in any level of detail or specificity.

          1. Outside organizations don’t need detail or specificity. The parties have lawyers for that.

            If an outside organization has special expertise that the parties cannot provide, that’s one thing. But most of these briefs are just long winded statements of support for the litigants. They are no help to the court. They are inimicus curiae.

            1. How are you to decide what outside organizations, America being full of non-profits with lots of different agendas, some of which may not be party to a lawsuit, want or need?

              1. I don’t care.

                Briefing in a court case is supposed to help the courts, not the litigants.

                These are supposed to be friends of the Court. Many times, the Court doesn’t need any friends.

                1. You don’t care, sure, but you’re not in charge. Moreover, I don’t think you understand that rights litigation from the left (the NAACP, etc.) and from the right (Institute for Justice, etc.) are built on a large support structure of non-profits that can, and should, have a say as it’s their funding that is involved.

                  Let’s get down to brass tacks, how many are there except for major cases, and how much effort is it to comb though them? Do you have any answers on that? The court, by that I mean the justice’s clerks, can ignore or skim them.

                  1. If the court is ignoring them, that’s actually worse. People are paying big money to file these things, to be ignored? That’s basically a gigantic fraud by the legal profession against these nonprofits.

                    It’s just ridiculous that we would encourage filings that aren’t helpful to the Court. How does it help anyone do justice to bury courts in repetitive paperwork?

                    If groups can’t fundraise without filing these things, that’s their problem.

                    1. Court clerks can read and use them at their discretion. How that constitutes “gigantic fraud” is left to you to define.

                      “We” don’t encourage filings, the interested parties do so on their own because they want to have a say. Moreover, do they all cover the same issues, or different aspects of any complicated legal case. Do you know that they are “repetitive”? In my experience in looking at amicus briefs of major cases, they touch on different issues.

                      Groups use these to fundraise, but given that the groups existed prior to the case, it means that they can, and do, fund raise without them.

                      Finally, how useful are they? People with fancy software to analyze writing show that yes, sections of amicus briefs do eventually make their way into the court’s decision, albeit changed.

                    2. My experience is most amicus briefs add nothing, and most of the ones that add something add something that should have been in the main brief anyway (and would have been, had there been no amicus brief).

                      I’d say maybe 5 to 10 percent add real value.

      2. To the extent we want the court to be influenced by that sort of thing (and I, for one, do not), Congress can pass a resolution to that effect. It’s not like the justices won’t hear about it.

    2. Bob, you have stumbled right into the truth.

  4. Josh, in many instances we’ve had the law professors themselves as amici rather than as pro hac vice counsel. In that case they pay no pro hac fee. That’s mainly a disadvantage only in courts where amici are likely to argue.

    Dan

    1. Amici shouldn’t be allowed to argue.

      1. Depends on the issue. For instance, I think it’s perfectly acceptable if the amicus has raised that the Court lacks subject-matter jurisdiction over the issue, and none of the parties are willing to concede that.

        1. I just meant oral argument. If the court does not believe it has subject-matter jurisdiction but wants briefing on it, it can threaten the parties with dismissal unless convinced it has subject-matter jurisdiction. I have no issue with amici submitting briefs. But why should they get time to argue something that the parties don’t want to argue about? And if it’s an issue that the court can raise sua sponte (like subject-matter jurisdiction), let the court raise it and the parties address it with their limited time.

  5. Agreed about the account creation and document submission process, but that’s exactly why it’s hardly a genuine concern. You’d have to be itching to reside in a world of pain to want to try and spam ECF like that. The proof is in the pudding as evidenced by the fact that no one’s been dimwitted enough to attempt that. Also, putting aside that massive practical deterrent, why would it require AI to do any of this? Likewise, why arbitrarily pick amicus briefs as the vehicle for spamming?

    1. hardreaders,

      “Also, putting aside that massive practical deterrent, why would it require AI to do any of this?”

      Because imagining Terminator 13: Rise of the Amici is way more fun than accepting that incremental improvements in day-to-day ministerial functioning will not bring us to WE ARE ALL DEAD.

      1. I’ll accept that answer. I, for one, welcome our soon to be arriving Amicinator (Amicitron?) overlords.

  6. I agree generally with the concerns about the number of submissions, but doubt it will be 1,000 electronic bots. Instead, I expect you’ll see some policy-driven group keep track of every case that is tangentially related to X issue. Then, they’ll have some standard brief that gets sent in to every single case on that issue. Then, of course, some other group will one up that by sending in letters and having other people submit “me too” letters that just agree.

    Each time, the litigants’ attorney will need to review them, look to see whether anything warrants a response, and at least address some of the issues.

    At least by requiring parties to give consent, there’s some gatekeeping function to keep all this out. Now, maybe you think those gatekeepers are too strict. Or maybe you think that some groups should get to go around the gatekeepers. Those are debatable points. But I can’t imagine anything good from eliminating gatekeepers altogether.

    1. Actually, what concerns me are cases where the government and the plaintiffs are in cahoots. It’s become a standard technique for regulatory agencies to assume powers they weren’t properly delegated: You arrange for some friendly group to sue you demanding the action you want to engage in, but have no statutory authority for, and then you take a dive, and deliberately lose the case. Now you’re under a court order to engage in the action, and even a change of administration can’t stop it.

      You really need amici to be able to intervene in such cases even where the parties don’t want it.

  7. Another grab at a government freebie . . . and from the side that strives to make it difficult to vote.

  8. I don’t know whether 7th circuit practice has changed since Posner retired. The 7th was uniquely hostile to amici, except in limited situations. I tried to file a brief in Crawford v Marion County Election Board, pointing out that the panel had used the wrong standard of review and failed to address the state constitutional law claim. I forgot to mention possible preclusive effect on my case in state court. The state objected, Posner denied the brief, the en banc court split 5-5. The Supreme Court held that the panel had used the wrong standard of review, but upheld on other grounds. A state court later held the statue unconstitutional on state grounds, but that was later reversed by the state supreme court. It’s possible that we have voter ID today because I’m an inept lawyer.

    1. Tubulidentates are like that.

  9. I have a better idea. Deny most amicus petitions. That will save lawyers and clients even more money, because they will stop preparing the briefs in the first place.

    An amicus brief should be helpful to the Court. That means it should provide some information in an area where the filer has special expertise. It should not be an excuse to exceed page limits, or to raise additional arguments to the Court. And courts should NEVER allow a process that is supposed to be helpful to the Court to become a tool for fundraising by interested groups.

    95 percent or more of amicus briefs could easily be replaced by a simple statement of interest. “Planned Parenthood and NARAL Pro-Choice America urge affirmance.” “National Right to Life League urges reversal.”

    Most amicus briefs are worse than useless; they force counsel to spend additional time– billed to clients– reviewing and dealing with repetitive arguments. And someone on the Court has to waste judicial resources reading them too.

    I’d say “no amicus brief without a court order, and no court order without a specific showing that the filer can provide some specific expertise that will be helpful to the Court”. Plus a strict page limit.

    1. It should not be an excuse to exceed page limits, or to raise additional arguments to the Court.

      Bingo ! The court is suposed to be resolving a case or controversy between Mr A and Ms B. The court has decided that in the interests of time and efficiency, counsel for Mr A and Ms B are to be limited as to the amount of court bandwidth they are allowed to consume.

      And yet, loads of third parties wholly unconnected with the case or controversy are to be allowed unlimited scope to consume extra bandwidth, which has been denied to the parties themselves.

      And that’s not all :

      they force counsel to spend additional time– billed to clients– reviewing and dealing with repetitive arguments.

      Mr A and Ms B are to be made to pay for the privilege of having passers-by interfere in their case.

      It seems to me that where this has all dived into the ditch is right up front :

      Requiring consent of the parties seems rooted in the fiction that the Supreme Court sits to resolve disputes between parties. That’s a formal limitation on its jurisdiction per the case-or-controversy requirement, but given the discretionary nature of Supreme Court review and its use in cases that present important questions, the Court is not a court of error.

      If it’s a “fiction” that the court’s job is as per the job specification set out in the Constitution, then isn’t that a hint that the court has strayed off its turf onto somebody else’s ? And if the court is not a “court of error” there to correct the errors of inferior courts, what is it ? A legislative body ? No thanks.

  10. Why impose the requirement that Amici must be submitted by lawyers at all? Can non-lawyers not have an interest, or particular experience, that the court finds useful in making their decision?

    The Supreme Court has taken on the role of legislature, let them deal with the attendant burdens.

    1. They can! Indeed, many amici ARE nonlawyers. But they need lawyers to represent them.

      1. Personally, I don’t think requiring mandatory lobbyists (particularly very highly paid lobbyists) results in good government.

        Anyone, even non-lobbyists, can advocate for their cause to the legislature or executive. Why do we need gatekeepers for the super-legislature?

        1. Because it’s a court, not a super-legilsature.

          At any rate, plenty of people hire lawyers to lobby Congress and other legislatures too.

  11. If a District Court spends the time to review an amicus brief, then there is zero marginal cost to admit the brief into the record. Such a decision does not constitute an endorsement of the content.

    The cost is incurred in future cases, when parties continue to waste the court’s time with these unnecessary and unhelpful filings.

  12. I worked in Federal Programs (which you refer to in the post) for 41 years. I suspect I probably did use the “take no position” language at times, in part perhaps because many district judges don’t like amicus briefs, so why get in their line of ire; in part because the tendency of some amicus briefs to, um, fudge what is or is not record evidence seems more salient in a district court; and in part perhaps because for our bureaucracy such a standardized response spared the other folks I’d have to run a consent or opposition by from having to read the amicus brief. My actual view was more nearly that I welcomed amicus briefs as long as they were filed on the other side. It’s pleasant to expand the number of potential mistakes to take aim at on the other side. It’s unpleasant to worry about being shot in the back.

    1. Let me add a comment on the special case of requests to file an amicus brief by persons who should be parties. I don’t recall whether I ever insisted on this point, but I would think it appropriate to oppose (or at the very least “take no position” on) a motion to file an amicus brief by a party who ought to intervene instead. (Or, who ought to be joined under Rule 19, though I was an outlier within Federal Programs in viewing that rule as seriously underenforced in some categories of public law cases.) This is more of a concern at the district-court level than at the appellate level, in part because it’s easier to intervene, and in part because the only way to have skin in the game in district court proceedings (most of which are never appealed) is to be a party, in contrast to appellate proceedings where precedential effects are more widely felt beyond the parties.

  13. If you want evidence that making communication free and removing gatekeeping reduces rather than improves overall quality and usability, just take a look at your email inbox.

    I’d agree that amicus briefs should be allowed absent a reason to exclude or at least that every judge shouldn’t be permitted their own personal standard. But fees and gatekeeping serve real purposes. There are plenty of frivolous lawsuits. If people don’t have to have any stake in the case and there are no fees of quality checks, The world could easily be full of frivolous amicus briefs.

  14. Mad_kalak:
    ” Politicians signing on to an amicus brief is useful signaling to the Court.”

    Just make sure you read it first, as politician Joseph Alioto found out the hard way. Once you’ve seen Roller Ball (1975), where there are no politicians per se (apparently no federal courts either), you will have seen the light.

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