Published
December 19, 2024
Amicus curiae briefs, or “friend of the court” briefs, are a valuable form of legal advocacy, providing courts with a unique perspective on individual cases. But a recent proposal threatens to impose unnecessary—and unconstitutional—burdens on amicus filers, including trade associations and public interest groups. The U.S. Chamber of Commerce, which files over 200 amicus briefs annually, urges the U.S. Judicial Conference to reject these burdensome requirements.
The Proposed Amendments
The U.S. Judicial Conference is considering amendments to Federal Rule of Appellate Procedure 29, which governs the filing of amicus briefs in federal appellate courts. The changes fall into two buckets: One would drastically expand the disclosure requirements for entities filing amicus briefs. The other would eliminate the option to file an amicus brief with the consent of all parties and instead require that a motion for leave be submitted in every case. These proposed changes undermine important First Amendment rights and would impose unnecessary burdens on amicus filers and federal courts, which is why the Chamber has filed comments urging the Committee to reject them.
The Critical Role of Amicus Briefs
These “friend of the court” briefs can provide technical, scientific, or historical information to courts. They can put legal issues into context and explain the impact a potential holding may have on an industry. And they can underscore the gravity of the issues presented. That is why the Supreme Court has taken a permissive approach to accepting amicus briefs and regularly relies on them in resolving cases.
The Committee’s proposal, which applies to amicus briefs filed in the federal courts of appeals, is a troubling departure from this status quo.
Disclosure Provisions
The new disclosure provisions would require amici to disclose whether a party has contributed 25% of an amicus organization’s total revenue in the past year, as well as disclose the identity of members who contribute to the preparation of their own association’s amicus brief even if they are not a party to the case. These changes fly in the face of the First Amendment, which recognizes a vital relationship between the freedom to associate and privacy in one’s associations. They also rest on the mistaken assumption that an amicus brief is accorded weight based on the identities of an association’s members rather than the strength of its arguments.
Motions Requirement
The new motions requirement would eliminate the common and accepted practice of filing amicus briefs on the consent of the parties. It also introduces new criteria for judges to apply in ruling on motions to file. These provisions will create more work for amici, lead to increased opposition and motions-practice from parties, increase the administrative burden on courts, and make it far less likely that courts will err on the side of granting leave. Worst of all, they may discourage amicus participation in cases presenting difficult or significant legal questions.
The Advisory Committee is, at a minimum, aware of the serious concerns with the motions requirement and stated that it is “particularly interested in receiving comments on the proposal to eliminate the option to file an amicus brief on consent.” And individual members of the Standing Committee, including judges on the federal courts of appeal, have already expressed concerns about the proposal’s effect of minimizing speech while maximizing the administrative burden on courts.
Bottom Line
The U.S. Chamber is leading the charge to ensure that the Committee understands the practical and constitutional harms the proposed amendments would impose. In addition to submitting our comment, the Chamber will present testimony to the Committee during the January 10 virtual hearing. If you or your organization would like to be involved in opposing these proposed changes, please reach out to Mariel Brookins.
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About the authors
Tara Morrissey
Tara Morrissey is senior vice president and deputy chief counsel at the U.S. Chamber Litigation Center, the litigation arm of the U.S. Chamber of Commerce. Morrissey has extensive government and private sector experience, with a particular focus on appellate litigation.
Mariel Brookins
Mariel Brookins is counsel at the U.S. Chamber Litigation Center, the litigation arm of the U.S. Chamber of Commerce. In this capacity, she handles a variety of litigation matters for the Chamber.
