The Review of Litigation
During a recent telephone conversation, a colleague and I discussed whether the United States Supreme Court bears some resemblance to a quasi administrative agency. Of course, the Supreme Court is an Article III court, not an administrative agency. Yet, in more than 50% of the cases on the Court's docket, non parties are permitted to offer legal and/or factual information to supplement the legal and factual arguments made by the parties to the suit. Such non party participants, commonly referred to as amicus curiae - or friends of the court, frequently raise new arguments that are totally absent from the parties' briefs. Moreover, the procedural requirements for permission to participate as an amicus are very lenient - at times virtually non existent. The Court's willingness to allow such non party participation and consider the information offered by such participants is more akin to the notice and comment period of administrative rule making than the party controlled adversarial model which we typically consider essential to our judicial system. This article considers why the system allows amicus curiae this privileged position and whether we should be rethinking the procedural mechanisms which apply to friend of the court briefs.
27 REV. LITIG.(University of Texas) 669 (2008)