The vast majority of amicus curiae briefs are filed by allies of litigants and duplicate the arguments made in the litigants’ briefs, in effect merely extending the length of the litigant’s brief. Such amicus briefs should not be allowed. They are an abuse. The term ‘amicus curiae’ means friend of the court, not friend of a party.
I agree that most such briefs are often from close ideological allies, but I’m curious about you suggestion that the court would reject them on this ground. Surely all the organizations filing somewhat duplicative amicus curiae briefs all the time do so because they think it is helpful?
That quotation is from an order by then-Chief Judge Posner of the Seventh Circuit denying leave to file an amicus brief on such a basis. Judge Posner was, and the Seventh Circuit is, more of a stickler for this sort of this sort of thing (and both were/are more likely to call lawyers out for not following the rules than other courts). Other courts are less likely to actually kick an amicus brief—that requires more work than just ignoring it! -- but I think Judge Posner’s views would enjoy general support among the federal judiciary.
There’s a literature on whether amicus briefs are in general helpful vs. being a waste of money, although it mostly focuses on the Supreme Court (e.g., this article surveys some prior work and reflects interviews with former clerks, but is a bit dated). I don’t see an amicus brief on the preliminary injunction here hitting many of the notes the former clerks identified as markers of value in that article. Whether there was a charitable trust between Musk and OpenAI isn’t legally esoteric, there’s no special perspective the amicus can bring to bear on that question, and so on.
You’re right insofar as amicus briefs are common at the Supreme Court level, although they are not that common in the courts of appeals (at least when I clerked) and I think they are even less common at the district court level in comparison to the number of significant cases. So I would not view their relative prevalence at the Supreme Court level as strong information in either direction on how effective an amicus brief might be here.
Judges are busy people; if a would-be amicus seeks to file an unhelpful amicus brief at one stage of the litigation, it’s pretty unlikely the judge is going to even touch another brief from that amicus at a later stage. If I were a would-be amicus, I would be inclined to wait until I thought I had something different enough than the parties to say—or thought that I would be seen as a more credible messenger than the parties on a topic directly relevant to a pending decision—before using my shot.
I agree that most such briefs are often from close ideological allies, but I’m curious about you suggestion that the court would reject them on this ground. Surely all the organizations filing somewhat duplicative amicus curiae briefs all the time do so because they think it is helpful?
That quotation is from an order by then-Chief Judge Posner of the Seventh Circuit denying leave to file an amicus brief on such a basis. Judge Posner was, and the Seventh Circuit is, more of a stickler for this sort of this sort of thing (and both were/are more likely to call lawyers out for not following the rules than other courts). Other courts are less likely to actually kick an amicus brief—that requires more work than just ignoring it! -- but I think Judge Posner’s views would enjoy general support among the federal judiciary.
There’s a literature on whether amicus briefs are in general helpful vs. being a waste of money, although it mostly focuses on the Supreme Court (e.g., this article surveys some prior work and reflects interviews with former clerks, but is a bit dated). I don’t see an amicus brief on the preliminary injunction here hitting many of the notes the former clerks identified as markers of value in that article. Whether there was a charitable trust between Musk and OpenAI isn’t legally esoteric, there’s no special perspective the amicus can bring to bear on that question, and so on.
You’re right insofar as amicus briefs are common at the Supreme Court level, although they are not that common in the courts of appeals (at least when I clerked) and I think they are even less common at the district court level in comparison to the number of significant cases. So I would not view their relative prevalence at the Supreme Court level as strong information in either direction on how effective an amicus brief might be here.
Judges are busy people; if a would-be amicus seeks to file an unhelpful amicus brief at one stage of the litigation, it’s pretty unlikely the judge is going to even touch another brief from that amicus at a later stage. If I were a would-be amicus, I would be inclined to wait until I thought I had something different enough than the parties to say—or thought that I would be seen as a more credible messenger than the parties on a topic directly relevant to a pending decision—before using my shot.