A Democratic Theory of Amicus Advocacy

Amicus curiae ( friend of the court”) participation in litigation has flourished in recent years as many groups and individuals seek to influence the outcome of litigation. Amicus filers are not parties and judges have wide discretion to reject amicus briefs if they believe that the amicus participation does not add anything to the briefs already filed by the parties. In three recent cases, Seventh Circuit Court of Appeals Judge Richard Posner has rejected amicus filings and promised to closely scrutinize applications to file amicus briefs in the future. Judge Posner\u27s influence has led an increasing number of judges, primarily at the district court level, to deny leave to file amicus briefs. This Article argues for the importance of amicus participation in a democratic system. The Article proposes changes to the federal appellate standards for granting leave to file amicus briefs. Currently, court rules generally require that amicus briefs add something new to the arguments already made by the parties. This Article argues that the standards for sanctions under the Federal Rules of Civil Procedure should determine whether amicus briefs should be accepted for filing. This standard might increase the number of amicus briefs that are accepted for filing, but would also increase democratic participation in the court system. While placing some limits on amicus participation is important to the proper functioning of the judicial system, this Article argues that limits on amicus participation should be minimal in light of the democratic and constitutional values that amicus participation furthers