The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
A UCLA First Amendment Amicus Brief Clinic student and I were just appointed by a District Court as amicus to file a brief supporting the right of public access and opposing sealing of certain documents. The parties had both agreed to sealing, but "courts are duty-bound to protect public access to judicial proceedings and records," even as to "stipulated sealings … where the parties agree." And appointing an amicus curiae to represent the no-sealing position will help give the court an adversary presentation on the matter.
It seems to me that this sort of appointment is win-win-win:
- The court gets arguments from both sides, which it can then impartially consider. (The court may of course end up disagreeing with our position.) I've litigated over 30 motions related to sealing in courts throughout the country, so I can make sure that the arguments are well researched and presented.
- The public's presumptive right of access to court records is protected.
- My student gets an opportunity to brief a real motion under my supervision, and argue it in court. (Thanks to Scott & Cyan Banister, the main benefactors of our Clinic, we have funding for travel costs, so none of this requires spending court funds.)
Of course, the parties who want the documents sealed may end up not winning; but, again, they aren't legally entitled to sealing just as a matter of mutual agreement.
In any event, I just wanted to flag this in case some other courts will find it helpful—we're always happy to help with such appointments. More broadly, we would be able to help:
- with briefs opposing sealing,
- with briefs opposing pseudonymity, and
- with briefs (usually in appellate courts) defending the decision below on any First Amendment or First-Amendment-related question, when the appellee isn't appearing (we're doing that now in a Ninth Circuit trademark law case) or when the appellant and appellee both disagree with the decision below,
- in state or federal courts,
- trial or appellate,
- throughout the country (we'll get local counsel if needed).
We'd also in principle be open to being appointed to support sealing or pseudonymity as well, for instance if a party is pro se and hasn't been able to effectively present the legal arguments but the court would like to see a knowledgeable presentation on that side. Whatever my views might be about the propriety of sealing or pseudonymity in any particular case, as a lawyer I'd be glad to provide the court with the best arguments for whatever position needs to be covered, and I'm sure my students would as well.
If you think we can be of help, please e-mail me at firstname.lastname@example.org.