Publication Type: Conference Paper/Unpublished Manuscript

Publication Type: Conference Paper/Unpublished Manuscript
Abstract: In Judges and Their Audiences (2006), Lawrence Baum argues that prevailing models of judicial behaviortypically fail to recognize the degree to which judges’ decision making is motivated by a desire to seek approval from audiences whose support they value. This study examines one tangible way in which the Supreme Court might seek to appeal to valued audiences—citation of their amicus curiae briefs—and one particular audience whom the justices might have reason to court: the academic community. To what degree do the justices draw upon scholars’ amicus curiae briefs, relative to their use of briefs from actors representing audiences of greater instrumental value to them? If Baum’s theory holds, then we would expect to see scholars’ briefs cited no less frequently than more instrumentally valuable groups’ briefs are cited. Examining Supreme Court opinions from 1994 to 2007 in which scholars, under their own banner and not as representatives of interest groups, have filed third-party briefs, I perform a logit analysis of the probability that a particular brief will be cited. The model includes controls for the size and nature of the filing group, the issues being litigated, and ideological agreement between the filing group and the majority coalition on the Court. The probability that an amicus brief will be cited rises when the brief has been filed by scholars; this finding is not dispositive with respect to Baum’s perspective, but it does lend support to it.

Publication Type: Conference Paper/Unpublished Manuscript
Abstract: In Judges and Their Audiences (2006), Lawrence Baum argues that prevailing models of judicial behavior typically fail to recognize the degree to which judges’ decision making is motivated by a desire to seek approval from audiences whose support they value. This study examines one tangible way in which the Supreme Court might seek to appeal to valued audiences—citation of their amicus curiae briefs—and one particular audience whom the justices might have reason to court: the academic community. To what degree do the justices draw upon scholars’ amicus curiae briefs, relative to their use of briefs from actors representing audiences of greater instrumental value to them? If Baum’s theory holds, then we would expect to see scholars’ briefs cited no less frequently than more instrumentally valuable groups’ briefs are cited. Examining Supreme Court opinions from 1994 through the 2007-2008 term in which scholars, under their own banner and not as representatives of interest groups, have filed third-party briefs, I perform a logit analysis of the probability that a particular brief will be cited. The model includes controls for the size and nature of the filing group, the issues being litigated, and ideological agreement between the filing group and the majority coalition on the Court. The probability that an amicus brief will be cited rises when the brief has been filed by scholars; this finding is not dispositive with respect to Baum’s perspective, but it does lend support to it.

Publication Type: Conference Paper/Unpublished Manuscript
Abstract: This paper empirically examines the use of amicus briefs by state supreme courts. While previous studies have analyzed the use and influence of amicus briefs on the U.S. Supreme Court, as courts suffer from incomplete information, relatively little is known about the use of these briefs by state supreme courts. This paper analyzes the arguments provided by amicus briefs with the decisions by the respective state supreme court courts to determine whether these briefs provide additional information to the court not provided in the parties’ briefs or whether such briefs merely serve a position-taking function.

Publication Type: Conference Paper/Unpublished Manuscript
Abstract: Amicus curiae briefs have exploded as a part of the litigation process. These “friend-of the-court” briefs are filed by parties other than those directly involved in the litigation. All courts impose some limits on who may file amicus briefs and the content of amicus briefs.

This paper looks at how one cause lawyering organization uses amicus briefs to put its progressive views into the public discourse. The empirical analysis begins with interviews of the leaders of the National Lawyers Guild, a prototypical cause lawyering organization. The paper looks at the Guild’s use of the amicus briefs throughout its history, and the way the Guild is currently using amicus briefs.

The Guild’s use of amicus briefs is probably not unique. It is in tension, however, with the courts’ attitude towards amicus briefs as only allowable if it “aids the court in some way.” This paper, by contrast, views the amicus brief as a form of political speech, to be abridged only for the most compelling governmental purposes. This paper argues that with this conception of the amicus as political speech, limitations on the right to file amicus briefs cannot be justified, even under a court’s inherent authority to control proceedings before it. The use of amicus briefs to petition the government is especially important for constitutional issues—since the courts are often the only branch of government empowered to make constitutional changes.