The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In February, my UCLA First Amendment Amicus Brief Clinic student Pauline Alarcon and I were appointed by District Judge Stephen Clark (E.D. Mo.) 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 helps give the court an adversary presentation on the matter.
We briefed the case, and Pauline flew out to argue it under my supervision; I think she did a superb job. I hope the court found our work helpful in its ultimate decision on the matter, which was published several days ago (see here, plus here on why that decision was in some measure redacted). Thanks to Scott & Cyan Banister, the main benefactors of our Clinic, we had funding for travel costs, so none of this required spending court funds.
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. And I've written the just-published The Law of Pseudonymous Litigation, and in the process learned a great deal about pseudonymity (plus I've also litigated several pseudonymity cases).
- 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, if the court concludes oral argument is appropriate. This is a tremendously valuable educational opportunity for any law student, I think.
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 (see Doe v. Arizona Board of Regents (9th Cir. 2022), which we did in basically that situation) 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 academic or personal 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.