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An ''amicus curiae'' (; ) is an individual or organization who is not a party to a legal case, but who is permitted to assist a court by offering information, expertise, or insight that has a bearing on the issues in the case. The decision on whether to consider an ''amicus'' brief lies within the discretion of the court. The phrase is
legal Latin A number of Latin terms are used in legal terminology and legal maxims. This is a partial list of these terms, which are wholly or substantially drawn from Latin. __TOC__ Common law Civil law Ecclesiastical law See also * B ...
and the origin of the term has been dated to 1605–1615. The scope of ''amici curiae'' is generally found in the cases where broad public interests are involved and concerns regarding civil rights are in question. In
American law The law of the United States comprises many levels of codified and uncodified forms of law, of which the most important is the nation's Constitution, which prescribes the foundation of the federal government of the United States, as well as va ...
, an ''amicus curiae'' typically refers to what in some other jurisdictions is known as an intervenor: a person or organization who requests to provide legal submissions so as to offer a relevant alternative or additional perspective regarding the matters in dispute. In the American courts, the amicus may be referred to as an ''amicus'' brief. In other jurisdictions, such as Canada, an ''amicus curiae'' is a lawyer who is asked by the court to provide legal submissions regarding issues that would otherwise not be aired properly, often because one or both of the parties is not represented by counsel.


History

Direct or indirect connections between the ''amicus curiae'' figure and the Roman juridical experience are still debated. Some scholars simply explain the Latin expression with the fact that the cultural elites' (including the jurists one) language of the Anglo-Saxon world of the past was the Latin, so many Latin legal terms spread in the English law before and so in the Law of the United States then also. The Italian academic Giovanni Criscuoli, while admitting the theoretical possibility of eventually compare it with the Roman figure of the "''consiliarius''", concludes that: "it is a figure of exclusive Anglo-Saxon blood". Starting in the 9th century, it was incorporated into English law, and it was later extended to most common law systems. Later, it was introduced in
international law International law (also known as public international law and the law of nations) is the set of rules, norms, and standards generally recognized as binding between states. It establishes normative guidelines and a common conceptual framework for ...
, in particular concerning human rights. From there, it was integrated in some civil law systems (it has been, as at 2013, integrated into
Argentina Argentina (), officially the Argentine Republic ( es, link=no, República Argentina), is a country in the southern half of South America. Argentina covers an area of , making it the second-largest country in South America after Brazil, th ...
's law system and Honduras's 2010 civil procedures code). Today, it is used by the European Court of Human Rights, the Inter-American Commission on Human Rights, the
Inter-American Court of Human Rights The Inter-American Court of Human Rights (IACHR or IACtHR) is an international court based in San José, Costa Rica. Together with the Inter-American Commission on Human Rights, it was formed by the American Convention on Human Rights, a human ...
, the
Court of Justice of the European Union The Court of Justice of the European Union (CJEU) (french: Cour de justice de l'Union européenne or "''CJUE''"; Latin: Curia) is the judicial branch of the European Union (EU). Seated in the Kirchberg quarter of Luxembourg City, Luxembourg ...
and the
Special Tribunal for Lebanon The Special Tribunal for Lebanon (STL), also referred to as the Lebanon Tribunal or the Hariri Tribunal, is a tribunal of international character applying Lebanese criminal law to carry out the investigation and prosecution of those responsib ...
.


Presentation

The role of an ''amicus'' is, as stated by Salmon LJ (as Lord Salmon then was) in ''Allen v Sir Alfred McAlpine & Sons Ltd''
968 Year 968 ( CMLXVIII) was a leap year starting on Wednesday (link will display the full calendar) of the Julian calendar. Events By place Byzantine Empire * Emperor Nikephoros II receives a Bulgarian embassy led by Prince Boris ( ...
2 QB 229 at p. 266 F-G: The situation most often noted in the press is when an
advocacy group Advocacy groups, also known as interest groups, special interest groups, lobbying groups or pressure groups use various forms of advocacy in order to influence public opinion and ultimately policy. They play an important role in the developm ...
files a brief in a case before an
appellate court A court of appeals, also called a court of appeal, appellate court, appeal court, court of second instance or second instance court, is any court of law that is empowered to hear an appeal of a trial court or other lower tribunal. In much of ...
in which it is not a litigant. Appellate cases are normally limited to the factual record and arguments coming from the
lower court A lower court or inferior court is a court from which an appeal may be taken, usually referring to courts other than supreme court. In relation to an appeal from one court to another, the lower court is the court whose decision is being reviewed ...
case under appeal; attorneys focus on the facts and arguments most favorable to their clients. Where a case may have broader implications, ''amicus curiae'' briefs are a way to articulate those concerns, so that the possibly broad legal or public policy implications of the court's anticipated decisions will not depend solely on the positions and arguments advanced by the parties directly involved in the case. In prominent cases, ''amici curiae'' are generally organizations with sizable legal budgets. In the United States, for example, non-profit legal advocacy organizations, such as the
American Civil Liberties Union The American Civil Liberties Union (ACLU) is a nonprofit organization founded in 1920 "to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States". T ...
, the
Landmark Legal Foundation The Landmark Legal Foundation is an American conservative legal advocacy group. The President as of 2018 is Richard P. Hutchison. Through litigation and direct interfacing with government agencies, Landmark Legal advances a conservative platform o ...
, the
Pacific Legal Foundation Pacific Legal Foundation (PLF) is a libertarian public interest law firm in the United States.Zumbrun, Ronald A. (2004). "Life, Liberty, and Property Rights," in ''Bringing Justice to the People: The Story of the Freedom-Based Public Interest La ...
, the Electronic Frontier Foundation, the
American Center for Law and Justice The American Center for Law & Justice (ACLJ) is a politically conservative, Christian-based legal organization in the United States. It is headquartered in Washington, D.C., and associated with Regent University School of Law in Virginia Beach, ...
or the
National Organization for the Reform of Marijuana Laws The National Organization for the Reform of Marijuana Laws (NORML ) is a social welfare organization based in Washington, D.C., that advocates for the reform of marijuana laws in the United States regarding both medical and non-medical use. Ac ...
(NORML), frequently submit such briefs to advocate for or against a particular legal change or interpretation. If a decision could affect an entire industry, companies other than the litigants may wish to have their concerns heard. In the United States, federal courts often hear cases involving the
constitutionality Constitutionality is said to be the condition of acting in accordance with an applicable constitution; "Webster On Line" the status of a law, a procedure, or an act's accordance with the laws or set forth in the applicable constitution. When l ...
of state laws. Hence states may file briefs as ''amici curiae'' when their laws or interests are likely to be affected, as in the Supreme Court case ''
McDonald v. Chicago ''McDonald v. City of Chicago'', 561 U.S. 742 (2010), was a landmark decision of the Supreme Court of the United States that found that the right of an individual to "keep and bear arms", as protected under the Second Amendment, is incorporated ...
,'' when thirty-two states under the aegis of Texas (and California independently) filed such briefs. ''Amici curiae'' who do ''not'' file briefs often present an academic perspective on the case. For example, if the law gives deference to a history of legislation of a certain topic, a historian may choose to evaluate the claim from their specialized expertise. An economist, statistician, or sociologist may choose to do the same. Newspaper editorials, blogs, and other opinion pieces arguably have the capability to influence Supreme Court decisions as ''de facto amici curiae''. They are not, however, technically considered ''amici curiae,'' as they do not submit materials to the Court, do not need to ask for leave, and have no guarantee that they will be read.


United States Supreme Court rules

The Supreme Court of the United States has special rules for ''amicus curiae'' briefs sought to be filed in cases pending before it. Supreme Court Rule 37 states, in part, such a brief should cover "relevant matter" not dealt with by the parties which "may be of considerable help". The cover of an ''amicus'' brief must identify which party the brief is supporting, or if the brief supports only affirmance or reversal. The Court also requires that all non-governmental amici identify those providing a monetary contribution to the preparation or submission of the brief. Briefs must be prepared in booklet format, and 40 copies must be served with the Court. In the United States Supreme Court, unless the ''amicus'' brief is being filed by the federal government (or one of its officers or agents) or a U.S. state, permission of the court (by means of
motion for leave A motion or application for leave is a motion filed with the court seeking permission to deviate from an established rule or procedure of the court. The most common use of a motion for leave is to seek an extension to an already-passed time frame ...
) or mutual consent of the parties is generally required. Allowing an ''amicus curiae'' to present oral argument is considered "extraordinary". The court can also appoint its own ''amicus curiae'' if neither party supports the decision of the lower court, which it has done at least 44 times.


In the World Trade Organization

The role of ''amicus curiae'' briefs in the World Trade Organization (WTO) dispute settlement system is controversial. The controversy arises due to the governmental nature of WTO disputes. As only WTO members have access to the system, any non-members such as
non-governmental organizations A non-governmental organization (NGO) or non-governmental organisation (see spelling differences) is an organization that generally is formed independent from government. They are typically nonprofit entities, and many of them are active in h ...
(NGOs) are excluded and have no right to be heard.Van den Bossche, 2013, p. 263 Thus the only way for them to contribute to a WTO decision is through ''amicus curiae'' briefs. To date there is a divergence in approaches in the WTO as to the admissibility of such briefs.


Panel and Appellate Body reports

The first WTO case to comprehensively examine the admissibility of ''amicus curiae'' briefs was US – Shrimp. The case concerned a ban by the US on imports of all shrimp and shrimp products not caught with turtle excluder devices. The panel at first instance rejected the two ''amicus curiae'' briefs that were submitted by environmental groups, on the basis they were not expressly solicited by the panel under Article 13 of the
Dispute Settlement Understanding Dispute settlement or dispute settlement system (DSS) is regarded by the World Trade Organization (WTO) as the central pillar of the multilateral trading system, and as the organization's "unique contribution to the stability of the global economy". ...
of the WTO. This was overturned by the Appellate Body who held a panel had authority to accept, consider or reject briefs under Articles 12 and 13 of the Dispute Settlement Understanding regardless of whether they were expressly solicited. The issue was re-examined in US – Lead and Bismuth II which concerned the imposition of duties by the US on certain imported hot rolled lead and bismuth carbon steel from the UK. The Panel at first instance affirmed the position in the US – Shrimp case and accepted two ''amicus curiae'' briefs that were submitted. On appeal, the Appellate Body relied on Article 17.9 of the Dispute Settlement Understanding and Rule 16(1) of the Working Procedures for Appellate Review to create rules to accept ''amicus curiae'' briefs.Appellate Body Report, United States – Imposition of Countervailing Duties on Certain Hot-rolled Lead and Bismuth Carbon Steel Products Originating in the United Kingdom, WTO Doc WT/DS138/AB/R, AB-2000-1 (10 May 2000), 9 2/ref> This was deemed as the source of legal authority to accept such briefs by an Appellate Body. The next significant case to deal with ''amicus curiae'' briefs was EC – Asbestos, where the French government banned domestically produced and imported
asbestos Asbestos () is a naturally occurring fibrous silicate mineral. There are six types, all of which are composed of long and thin fibrous crystals, each fibre being composed of many microscopic "fibrils" that can be released into the atmosphere ...
products. Of the five ''amicus curiae'' briefs received by the Panel, only two that were submitted by the European Community, were accepted. The panel did not provide any explanation as to why they were accepted or rejected. On appeal, the Appellate Body relied on Rule 16(1) of the ''Working Procedures for Appellate Review'' to create additional procedures to deal with the ''amicus curiae'' briefs.Appellate Body Report, European Community – Measures Affecting Asbestos and Products Containing Asbestos, WTO Doc WT/DS135/AB/R, AB-2000-11 (12 March 2001), 0 1 Of the 11 briefs submitted, the Appellate Body accepted none on the basis they failed to comply with these additional procedures.


Canada

In
Canadian law The legal system of Canada is pluralist: its foundations lie in the English common law system (inherited from its period as a colony of the British Empire), the French civil law system (inherited from its French Empire past), and Indigenous l ...
, an ''amicus curiae'' is a lawyer, rather than an outside entity, who is asked by the Court to provide submissions in such a way as to make sure the legal issues affecting the interests of all parties are properly canvassed. Where one of the parties (e.g. the accused in a criminal case) is unrepresented (and is ineligible for or refuses to apply for legal aid), and the judge is concerned that this will leave that party at a significant disadvantage and risk a miscarriage of justice, the judge may appoint a lawyer as ''amicus curiae''. The lawyer is not retained by and does not represent the unrepresented party as such, but he or she has a responsibility to ensure that points of law of importance to the party's case are brought to the attention of the court. For example, in the case of a criminal trial, the ''amicus'' will have the responsibility to ensure that the accused's right to make full answer and defence is upheld. Examples of situations that could call for the appointment of ''amicus'' could include a highly complex or technical trial, an unsophisticated accused or one with cognitive or psychiatric challenges, or an unruly and disruptive accused. In some cases, when an accused has retained counsel for part of the trial but then fires that counsel, and if the judge finds that ''amicus'' is needed, the former counsel may be asked to remain as ''amicus'', given his or her familiarity with the case. Another situation in which ''amicus'' may be appointed is when an accused is self-represented in a trial for offences such as sexual assault or assault in a domestic violence context. An unrepresented accused has the right to cross-examine Crown witnesses, but it may be undesirable to permit him or her to personally cross-examine, for example, the complainant. As a result, the ''
Criminal Code A criminal code (or penal code) is a document that compiles all, or a significant amount of a particular jurisdiction's criminal law. Typically a criminal code will contain offences that are recognised in the jurisdiction, penalties that might ...
'' permits the judge to order that the accused will not personally cross-examine the witness, and to name an uninvolved lawyer to conduct the cross-examination in place of the accused.


Constitutional Court of Italy rules

In
Italian law Italian(s) may refer to: * Anything of, from, or related to the people of Italy over the centuries ** Italians, an ethnic group or simply a citizen of the Italian Republic or Italian Kingdom ** Italian language, a Romance language *** Regional It ...
, ''amici curiae'' are "nonprofit organizations and the institutional subjects, bearers of collective or diffuse interests related to the issue of constitutionality" who "may submit a written opinion to the constitutional Court".AIC


See also

*
Intervention (law) In law, intervention is a procedure to allow a nonparty, called intervenor (also spelled intervener) to join ongoing litigation, either as a matter of right or at the discretion of the court, without the permission of the original litigants. The ...


References


External links

* Wiktionary
Merriam-Webster Online Dictionary


(2009-10-31)
Definitions
from
Dictionary.com Dictionary.com is an online dictionary whose domain was first registered on May 14, 1995. The primary content on Dictionary.com is a proprietary dictionary based on ''Random House Unabridged Dictionary'', with editors for the site providing new a ...

The Free Online Dictionary, Thesaurus and Encyclopedia
{{DEFAULTSORT:Amicus Curiae Roman law Legal documents Latin legal terminology pt:Anexo:Lista de expressões jurídicas em latim#A