The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Inimicus Curiae Briefs


Lawyers know about amicus curiae (friend of the court) briefs, which give interested or expert third parties an opportunity to provide courts with a perspective that the parties might have omitted. But we more rarely hear about inimicus curiae briefs, even though it turns out that many supposed amicus briefs are, in fact, inimicus briefs that have been, er, accidentally mislabeled.

A few tips for writing inimicus briefs from someone who's read a few; I posted this in 2003, but was recently reminded about it.

[1.] Focus primarily on repeating the arguments of your favored party. After all, anything worth saying once is worth being said by everyone who wants to say it. The official term for this (originally from Law French) is the "moi aussi principle."

[2.] If you do have a genuinely original twist to add to the analysis, don't just stick with it—that's bad form. Be sure to surround it with lots of other points that echo what your favored party says (see item 1 above). A ratio of 10 page of repetition to 1 page of new material is the norm, though experts believe that even this is too low.

[3.] Always include lots of general rhetoric, such as "The importance of the timeless guarantees of the First Amendment cannot be overstated in our marketplace of ideas, and the republic on which it rests." Judges and law clerks just love that sort of stuff.

NB: This is especially true when filing briefs before the Supreme Court. The sorts of close and difficult cases that the Court hears are almost always decided primarily by applying general slogans. In fact, it's considered disrespectful of the Court to focus on mere factual or doctrinal details, or to use more mundane language.

[4.] Always keep in mind that (according to Rule 3.7),

The primary purpose of an inimicus curiae brief is to allow the inimicus to tell donors and other supporters that the inimicus Has Filed A Brief Before The Court expressing the timeless verities for which the inimicus and its supporters stand.

Any departure from this purpose is frowned on.