Amicus curiae briefs are deeply woven into the fabric of modern federal appellate practice. Indeed, amici curiae submit briefs in approximately ninety percent of the cases that the United States Supreme Court entertains, and the Justices deny a minuscule number of amicus requests to participate. Amicus practice is less ubiquitous in the United States Courts of Appeals. Amici seek to file comparatively few briefs, nearly all of which the appellate courts permit, while many tribunals have not developed a comprehensive jurisprudence for resolving amicus motions. Nonetheless, the United States Court of Appeals for the Seventh Circuit has articulated rather stringent criteria, which it has strictly applied to limit amicus involvement, even as the Third Circuit has formulated less restrictive standards that the court has generously enforced to facilitate amicus participation. The significance of federal appellate court amicus practice will only grow as the twelve regional circuits increasingly become the courts of last resort for their geographic areas because the Supreme Court hears so few appeals. These propositions mean that federal appellate court disposition of amicus curiae motions warrants assessment, which this Article undertakes, concluding that the appeals courts should generally follow the Supreme Court and Third Circuit approaches as illuminated by certain aspects of the Seventh Circuit treatment.
The Article's second Part scrutinizes the origins and development of amicus curiae practice in the Supreme Court and in the regional circuits. The next Part analyzes the contemporary debate over how the appellate courts should address amicus curiae requests to file briefs. More specifically, it compares the criteria that the Seventh and Third Circuits have enunciated and how the courts have applied the standards. The segment detects variation in the regional circuits' practices, even though most appeals courts have not articulated a thorough amicus jurisprudence in published opinions. The Article concludes by proffering suggestions for the future resolution of amicus curiae motions. The last Part recommends that appellate tribunals continue granting virtually all requests to submit briefs that amici make. The appeals courts should also capitalize on and carefully integrate superior dimensions of United States appellate jurisprudence related to amicus motions by essentially adopting the flexible Supreme Court and Third Circuit approaches, and by selectively applying the Seventh Circuit's criteria and its guidance, which amplifies the standards.
Carl Tobias, Resolving Amicus Curiae Motions in the Third Circuit and Beyond, 1 Drexel L. Rev. 125 (2009)