The Washington Post

Judges inviting the filing of amicus briefs

Judges sometimes expressly invite particular bar groups — for instance, a state prosecuting attorneys’ association and a state defense attorneys’ association, or the state bar’s family law section — to file amicus briefs in a case.

Indeed, sometimes they invite amicus briefs from any groups or individuals who would like to chime in. (I set aside invitations to particular people or organizations that are likely to have a specific stake in the matter, for instance when a decision would directly affect the rights of third parties that aren’t named parties. I also set aside the special case of the U.S. Supreme Court inviting particular lawyers to argue in defense of the judgment below, when neither side is doing so.) This is particular common in litigation before the Michigan Supreme Court, although it’s been done at times by many courts throughout the country.

My sense is that such invitations often stem from a judge’s view that 1) there’s an important issue in the case, but 2) one or both sides haven’t done a great job of briefing it and are unlikely to do so if simply asked for supplemental briefing.

And indeed American courts rely on adversary presentation of the issues by the parties; if that’s missing, there’s a greater than usual risk that the court decision won’t be as well-considered as the judge or judges would like.

Has anyone looked at the matter more closely? Is there some way for the academy to help facilitate this sort of practice? I think many professors would be happy to respond to such invitations, and might even have something helpful to say.

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.
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