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Public Notice of Pending Appellate Cases:
Brett Kavanaugh's comments about the role of amici and online commentary reminds me of an idea I've occasionally mulled to provide public notice of pending appellate cases. Here's the issue: If amicus briefs or online commentary can help judges decide particularly tricky cases, should the Federal Rules of Appellate Procedure require appellants to formally state the "Questions Presented" by their appeal at some period before the brief is due, or at least before amicus briefs are due, in order to notify potential amici and other commentators that an appellate court is going to resolve those issues?

  The problem is that under current law, it's actually pretty hard for the public to find out about interesting and important appellate cases and then to weigh in in a timely way. FRAP Rule 28(a)(5) requires appellants to present "a statement of the issues presented for review" as a section of their opening brief. But those statements are hard to find: they are just part of the brief, not separate documents that are easily found and searchable. And FRAP 29(e) gives potential amici very little time to file briefs after reading about a case that raises an important issue. The rule states: "An amicus curiae must file its brief, accompanied by a motion for filing when necessary, no later than 7 days after the principal brief of the party being supported is filed. An amicus curiae that does not support either party must file its brief no later than 7 days after the appellant's or petitioner's principal brief is filed." It's very difficult to conceive, draft, and submit a brief in such a narrow window (even assuming you learned of the case the day the brief was filed). Unless you learn of the opening brief and you want to file an amicus brief in support of the appellee, you're pretty much out of luck.

  Why does this matter? It means that potential amici and other subject matter experts usually don't find out about major litigation until the day the appellate opinion is published. Unless a litigant brings attention to the case, or unless the case has a high profile for another reason, it's actually pretty hard to know which issues are "on deck" in the federal court of appeals. It's true that interested parties can watch district court opinions and look for interesting issues. But only a subset of interesting issues decided at the district court level are appealed: An interested party would need to contact the lawyers in the case and follow the litigation to know whether and when the legal question is likely to come up in the Court of Appeals. This doesn't happen too often.

  If it's true that judges benefit from amicus briefs and online commentary about their cases, why not have the commentary before the decision is published rather than after? The problem is simply one of notice; the public can't participate if they don't know the issue is being addressed. One solution could be to require appellants to file a document informing the appellate court of the "Questions Presented" (QP) by their appeal. They could be required to file the QP 30 days before their opening brief is due, and the QP could go into an online database that potential amici and other commentators could easily search to find notable cases that they could comment on or in which they could file amicus briefs. The idea would be to offer public notice that an appellate court is likely to resolve an important legal question.

  Of course, most federal appeals do not involve any important legal questions. Most are straightforward if not borderline frivolous. But some aren't, and there should be a way to provide public notice of important cases. I'm not sure if requiring "Questions Presented" is the best way to go; it's not a perfect answer, and perhaps there are better ones. But the existing Federal Rules of Appellate Procedure overlook public notice, and I don't think they should.
Steve:
Traditionally, amici are generally solicited by one party or the other.

As a practitioner, I really don't want bored law professors weighing in on my client's dispute unless they're asked.

The court's interests, of course, are different from my interests as a practitioner. But the fraction of cases which are complex enough for the judges to need help is small enough that I don't think they need to make a rule of general applicability.

There do seem to be quite a few jurisdictions, by the way, where the parties have to specify the issues on appeal well in advance of the submission of briefs. New York is one.
11.6.2007 12:29pm
Left shoe:
(1) Why place the onus on the appellant? Courts have websites. They could easily have the clerk's office put up the questions presented.

(2) As I'm sure you recall from the CoA clerkship days, most questions presented are horibly worded -- either too short or too long. I doubt they would be of much use.

(3) I can't imagine there are many "interesting" cases pending at any given moment. Given that, I think the current system is fine. Most truly interesting cases will garner attention at the district court level.

(4) At times, courts (or at least the Ninth Circuit) has explicitly "asked the public" to file amicus briefs in interesting cases. Perhaps judges should be more willing to do that.
11.6.2007 12:44pm
PLR:
Ditto Steve. In the good old days you only needed two (or more) lawyers and their briefs, three (or more) judges and a trial transcript in order to make an informed decision on appeal.

And by definition, the peanut gallery has a very high nut content.
11.6.2007 12:46pm
Mike& (mail):
And by definition, the peanut gallery has a very high nut content.

What specific amicus brief prompted this view? I'd like to read it - and I am sure others would, too.
11.6.2007 12:51pm
Mike& (mail):
(3) I can't imagine there are many "interesting" cases pending at any given moment.

I disagree. I could spend an hour (or more) a day reading new and interesting judicial opinions. By definition, published opinions were at one time pending opinions. I regularly read blogs that summarize these opinions. If your view were accurate, there'd be no market for Appellate Law &Practice, California Appellate Report, Decision of the Day, or How Appealing. Yet all of these blogs have an above-average readership.
11.6.2007 12:54pm
Left shoe:
Mike, perhaps you've forgotten that most cases are unpublished. Those cases are rarely interesting. Moreover, the blogs you cite discuss the one or two or three interesting opinions issued out of the 100 or so opinions issued on any given day. If you've ever spent time reading every opinion a circuit issues every day for any prolonged period of time, you'll quickly realize how boring most cases are. (As a random aside, I wish courts would put on their websites some sort of notation next to Anders cases. It's annoying clicking on a link to a case only to discovery it's just an Anders case, not worth reading.)
11.6.2007 1:02pm
Amber T. (mail) (www):
At least in the Fourth Circuit, appellants are required to file a docketing statement that includes the issues to be raised on appeal. This statement is due within 14 days of filing a notice of appeal. It might not be terribly difficult to make these searchable.
11.6.2007 1:14pm
Amber T. (mail) (www):
At least in the Fourth Circuit, appellants are required to file a docketing statement that includes the issues to be raised on appeal. This statement is due within 14 days of filing a notice of appeal. It might not be terribly difficult to make these searchable.
11.6.2007 1:14pm
OrinKerr:
Left shoe, I don't think it matters who posts the QP; what matters is that someone writes them and they are available. It doesn't matter so much if they are poorly worded, I think; you just need enough to know roughly what the issue is. As for your point that most interesting cases are known at the trial level, I disagree; I haven't found that to be the case in the areas that I follow closely.

PLR writes:
In the good old days you only needed two (or more) lawyers and their briefs, three (or more) judges and a trial transcript in order to make an informed decision on appeal.
Sometimes opinions are "informed." But many are not: Some opinions are shoddy and poorly reasoned or miss the point altogether. What's the harm in making them more informed?
11.6.2007 1:16pm
Mike& (mail):
Left shoe: After reading your response, a quote came to mind: "Only boring people get bored."

It just sounds like not much interests you. Which is fine. But that doesn't mean the rest of the world doesn't see any sparkle.
11.6.2007 1:17pm
jack (mail):
Litigants may understandably chafe at having law professors or other would-be experts interject their views in particular suits. But this chafing stems from the view that litigation is simply the process of resolving discrete disputes among private parties. To be sure, litigation does fulfill that role, but as the history of modern public law litgation makes clear, lawsuits are often a forum for society to debate larger issues. When litigation is seen to have this value, amici briefs are particularly important.

One other point in favor of amici briefs: Law professors are often chided for writing articles that judges never read. Whatever the merit of this criticism, it seems a bit unfair to criticize professors for writing irrelevant cant while at the same time telling them to mind their own business and not stop trying to help out the court with amici briefs.
11.6.2007 1:19pm
AF:
I think this is probably a good idea, though I do think the number of cases affected would be quite small -- not only because most cases present few interesting issues, but also because those issues will often not be apparent at the "question presented" stage. In addition to the uneven quality of appellate counsel, courts of appeals frequently seize on difficult issues that the parties had good reasons for overlooking or downplaying in their briefs (eg, because they aren't squarely presented, can easily be avoided, or were not raised before the trial court).

However, the cost of publishing questions presented ought to be small, and may have other benefits besides attracting amici, so this seems worth doing.
11.6.2007 1:23pm
Tony Tutins (mail):
The old inefficient way must work at least some of the time; I remember the flood of amici briefs in U.S. v. Emerson. Having read it, I would be surprised if either side solicited the Potomac Institute to write their brief.
11.6.2007 1:25pm
Left shoe:
Orin, perhaps it has been too long since you last were a CoA clerk if you think most QP allow the reader to "roughly" know what the case is about. ;)

You asked what would be the harm in making opinions more informed. Of course, in the abstract, that sounds great. But to do that would come at a cost in terms of court and party resources. And when opinions come out that are not informed, people can weigh in at the re-hearing stage. I would think that would be sufficient. But perhaps not.

Mike, well, *shrugs*. You can insult me and call me boring all you want. I suspect most people would not find more than a tiny percentage of cases interesting. If you have the time, I suggest you pick a circuit and read every single opinion, published or unpublished, issued by that circuit to see how many you think were worth reading.

I suspect the law interests me much more than most people. I read a huge volume of cases because the law interests me. (And, of course, to keep up to date in the areas in which I practice.) But most cases are not worth reading -- either because the appeal was frivolous or the case deals with uninteresting facts applied to settled law.
11.6.2007 1:34pm
PLR:
What specific amicus brief prompted this view? I'd like to read it - and I am sure others would, too.

Uh, it was a joke. But if I must carry through with the notion, I would say any random amicus brief from the ACLJ would qualify as nutty. You can decide whether that is a term of endearment, as in "my nutty uncle Fester."
Sometimes opinions are "informed." But many are not: Some opinions are shoddy and poorly reasoned or miss the point altogether. What's the harm in making them more informed?

None. But how does throwing open the appeals process to pseudo-intervenors make them more informed? It may result in Quality, or it may result in Chaos. At the Supreme Court level, the detainee cases have had an avalanche of amici in favor of the rule of law, and a trickle of amici in favor of the Forces of Darkness. Did that process result in much legal certainty for anybody?
11.6.2007 2:04pm
runape (mail):
Orin,
Is it your impression that potential amici are unaware of pending important cases because the parties are unaware of whom they might solicit, or because amici are unaware of the pending cases, or both? I would think that in important cases, when an amicus brief would help, one side or the other would solicit an opinion. Also, at least for politically salient cases, there are vast informal networks (listservs, blogs, etc.) that send out information about pending cases to interest groups (and, I imagine, professors).
11.6.2007 2:45pm
Miss. Lawyer (mail):
I'd suggest that those who blog about the Supreme Court, possibly the SCOTUS blog, keep up posts regarding the questions presented in the pending cases.
11.6.2007 3:39pm
marksleen (mail):
There are some instances where a statement of issues are required to be filed prior to the briefing, such as appeals from bankruptcy decisions (FRAP 6) and cases where the full transcript is not being ordered (FRAP 10).
11.6.2007 4:29pm
alkali (mail):
Requiring the parties -- who almost universally will be arguing that the result they want is clearly dictated by precedent -- to identify interesting and unsettled legal questions raised by their case seems almost certain to fail.

In the circuit where I reside, the court will sometimes flag novel issues and invite amicus submissions on those issues prior to argument. Perhaps the courts of appeal should devote more resources to whatever review process results in those invitations.
11.6.2007 5:40pm
Public_Defender (mail):
The delay between submitting questions presented and writing the brief is just not practical for busy appellate litigators. Writing questions presented is often one of the hardest tasks, and I frequently tweak my questions up until the last minute.

Your proposal would require a major investment of time nearly a month before writing the brief. Given the importance of writing good questions presented, I would have to do a substantial amount of work before submitting the questions, especially if I was not counsel in the district court. Under your timeline, after submission, I would then set aside the brief while I dealt with other more pressing deadlines. I would then pick up the file cold to write the brief after having dealt with a potentially a couple dozen other clients in the interim. That makes no sense.

More realistically, since the amount of time it takes to write questions presented is not much less than it takes to write the whole brief, the most efficient process would be to file the brief with the questions presented on the day the questions presented are due. Would you ban filing the brief early?

Further, the deadlines in the current rules assume the amount of real work that must be done. You are now requiring a substantial amount of work to be done thirty days before the filing of a brief, so the current appellant's brief deadline would need to be turned into the new deadline for filing questions. This would make appeals take even longer to decide.

Also, I practice in some courts that require a statement of probable issues when the notice of appeal is filed. I don't know any court or attorney that takes those statements seriously. Your list of questions presented would likely be filled with useless information. Statements of issues written well in advance of briefing are often speculative at best.

If you want to make it easier to file an amicus brief, just extend the time to file the amicus brief to 30 days from the filing of the appellant's brief, and then give the appellee two weeks after that to file. Then, you could have the clerk publish the questions presented from the actual brief.

In habeas cases in which the petitioner is the appellant, you could post the certificates of appealability, but the questions presented aren't always identical. And this solution would only work for a narrow set of cases.

Better yet, just do a little more work yourself. Many district court decisions are now in Lexis and Westlaw. If you are really interested in a topic, both services will run recurring word searches. Just keep your eye out for interesting opinons and call trial counsel.

That's a little more work for you, but that makes more sense than inconveniencing thousands of litigators to create a useless database just to save a few professors from setting up an Eclipse search.
11.6.2007 6:02pm
OrinKerr:
Is it your impression that potential amici are unaware of pending important cases because the parties are unaware of whom they might solicit, or because amici are unaware of the pending cases, or both?

Both. Lawyers often don't realize when they have an issue that might interest amici, and wouldn't know where to go to find them; potential amici in turn often don't know what's percolating out there.

Public Defender, I've certainly tried that; it's actually a lot harder than it sounds. Litigants don't know if a case might go up, so you either need to keep calling them to check or they need to take an interest in your participation and call you. Either way it's relatively labor intensive.
11.6.2007 6:39pm
former clerk:
Why rely on calling counsel to find out if an interesting district court case is going up on appeal? It's pretty easy to check dockets on PACER to see whether a notice of appeal has been filed.
11.6.2007 8:26pm
stanneus :
The web site of the New York Court of Appeals {for non-New yorkers, the highest court of the state) has a page devoted to a brief summary of the issues presented in cases where permission to appeal (something like certiorari) has been granted. http://www.nycourts.gov/ctapps/newcase07.htm
11.6.2007 9:07pm
Edward A. Hoffman (mail):
I agree with Public_Defender that it often makes sense to write the "questions presented" section last. If I had to write it weeks or months ahead of time (and then had to stick to it) the requirement would constrain my ability to write a brief that best meets my client's needs.

Another point -- appellate judges in most courts are already horribly overworked. A proposal that will bring in significantly more briefs without enhancing the courts' ability to deal with them may cause more harm than good, if only because it will leave fewer judicial resources available for cases that don't involve amici. Other proposals have created the same problem and I'm not sure how serious the problem would be in this instance, but Orin may not have adequately considered this point.
11.6.2007 10:12pm
runape (mail):
"Why rely on calling counsel to find out if an interesting district court case is going up on appeal? It's pretty easy to check dockets on PACER to see whether a notice of appeal has been filed."

Two answers: one, it's very inefficient, especially because you have to know what case you're looking for before you can monitor it's docket; and two, PACER costs money, and not all law profs have easy access (or even know how to use it, for that matter).

I think the best thing for profs who would be interested is just to subscribe to listservs (e.g., casehandler listservs in X area of law for major metropolitan areas).
11.6.2007 10:14pm
Christopher Cooke (mail):
Orin

your post raises the age-old issue of whether litigation is solely a dispute resolution mechanism for the parties involved or whether it should encompass broader societal problems. What if the parties don't want amici chiming in on their case? Under your proposal, the parties' view would be irrelevant. I am not saying your view is wrong or that amici are unhelpful. I did a Ninth Circuit appeal several years ago with one amicus brief (from the ACLU, who did not file a nutty brief, by the way) and thought it was very well done. I worked on cases as a law clerk with amici and found the briefs helpful. I note, also, a certain irony in your position, at least for a libertarian blog: you essentially are proposing some new rule or regulation by which the parties to a private dispute would publicize the issues in their case in a way that others will notice, so that they can participate. Why not let the parties decide when to invite amicus briefing?
11.6.2007 10:34pm
OrinKerr:
Christopher writes:
I note, also, a certain irony in your position, at least for a libertarian blog: you essentially are proposing some new rule or regulation by which the parties to a private dispute would publicize the issues in their case in a way that others will notice, so that they can participate. Why not let the parties decide when to invite amicus briefing?
I don't see the libertarian objection. The state is deciding a legal case, and in criminal cases the government is also a party to every piece of litigation. My proposal is to help private parties voluntarily participate to improve governmental decisionmaking. I'm trying to help the marketplace of ideas work more effectively; I'm not sure why that's supposed to be counter to libertarian principles.
11.6.2007 11:24pm
OrinKerr:
Edward Hoffman writes:
Another point -- appellate judges in most courts are already horribly overworked. A proposal that will bring in significantly more briefs without enhancing the courts' ability to deal with them may cause more harm than good, if only because it will leave fewer judicial resources available for cases that don't involve amici. Other proposals have created the same problem and I'm not sure how serious the problem would be in this instance, but Orin may not have adequately considered this point.
I've considered it, but I find it unpersuasive. First, no one forces a judge to read anything, and it takes about 3-4 seconds for a judge to take a brief and toss it in the trash. Second, the point of a good amicus brief is to save Judges time: the brief informs the judge much more quickly than it would take the judge to learn the law and imagine that perspective without the help of amici.
11.6.2007 11:29pm
former clerk:
I have a hard time swallowing the argument that an amicus brief, good or not, saves the judges time. The judges are obligated to read the briefs of the parties, and an amicus brief is just one more brief to read. And by the time they get to it, they (or more likely, their clerks) have already read the parties' briefs, and most likely have a good idea what the relevant law is either from the parties' briefs, or from their own research if the parties' briefs were deficient. There may be good arguments for amicus briefs, I can't think of a single instance where an amicus brief ever saved me or my judge time during my federal COA clerkship.

Moreover, the number of COA cases that would attract the attention of amici is minuscule in comparison to the number of cases decided by the courts of appeals. I am persuaded by the argument that the costs of creating a new procedure that would increase the workloads of the parties in every case would likely far outweigh any benefits. This is particularly so given that the vast majority of appeals present no novel legal issue, but are merely appeals taken of right that involve application of settled law to routine facts.

Runape:

I was responding to Orin's comment re: calling counsel in district court cases to find out if an appeal is being taken. Presumably if he is calling counsel, he has already identified the case he is interested in. Also, as Public Defender noted, it's easy enough to set up an Eclipse-type search on either Westlaw or Lexis that will alert you to the types of cases you are interested in. I am confident that any law professor is capable of learning how to set up a PACER account, and, if not, their law library probably is. The charges are very reasonable ($0.08 a page or so).
11.7.2007 12:43am
OrinKerr:
former clerk,

I suppose I'm revealing a bias: I'm assuming that the judge and clerk aren't going to rest until they're pretty sure they've gotten it right and they have left no stone unturned, a real "scorched earth" approach to legal research and making sure they get it right. An amicus brief is very helpful if that's the goal of the judge and clerk. But I suppose you're right in many cases; if the judge and clerk don't approach cases in such an aggressive fashion, an amicus brief is not going to save them any time at all.

As for the cost/benefit aspect to it, I don't see the cost as being very high. And while it's true the benefit would be only in a small set of cases, it's also the most important cases for the development of the law.
11.7.2007 1:40am
Public_Defender (mail):
I don't think the proposal shows libertarian bias, but I think it does show the bias of Professor Kerr's experience as an AUSA and a SCOTUS clerk.

In both jobs, he dealt mainly with appeals by leave where the questions had to be prepared in advance. In SCOTUS, briefs really couldn't depart much from the cert petitions. In the US Attorney's office, individual AUSA's have to get permission to appeal specific issues, so all appeals are, de facto, appeals by leave.

For the reasons I stated in my first comment, I don't think it would work. If the courts held counsel to the published questions presented, the rule would cause a significant disruption and delay in counsel's work flow. If the courts did not hold counsel to the published questions presented, counsel would churn out something to meet the deadline, submit it to the clerk, and then forget about it when writing the brief (with the real questions presented) a month later.

I also apologize for the tone of the last two paragraphs of my first comment. Professor Kerr presented a creative idea that deserved to be attacked with arguments on the merits, not with snide attacks on the alleged motives of the author.
11.7.2007 4:52am
Public_Defender (mail):
Professor Kerr's rule might also force attorneys to reveal privileged work product. Namely, our first impressions of the issues in a case.

I frequently have thought that a client had a strong argument for X, only to discover through research and writing that Issue X really doesn't apply. I have also added issues on the day briefs were due.

It's no one's business but my client's if I first think X is a good claim, but later drop it in favor of Y. Professor Kerr's rule would force me to publicly disclose my evolving view of the case.

To avoid those problems, lawyers could file questions presented like this:


Did the District Court err in its interpretation of the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution?


Then, when counsel files the brief, counsel could use subheadings to flesh out the real issues.

That's more or less what happens in courts that require counsel to file a statement of probable issues with the notice of appeal. Counsel makes something up to satisfy the filing deadline, and then writes the brief with no regard to what was on the initial statement.

And as I've said, the rule would either be a major pain-in-the rear for appellate litigators or it would be widely evaded. Either way, it's not a recipe for an effective court rule.
11.7.2007 6:13am
:Left shoe:
That's more or less what happens in courts that require counsel to file a statement of probable issues with the notice of appeal. Counsel makes something up to satisfy the filing deadline, and then writes the brief with no regard to what was on the initial statement.

That's been my experience as well. You'll see things like, "the district court committed reversible error" or something equally broad.

Orin, I mentioned this above, but perhaps the solution to your problem is to enact a FRAP that encourages CoA judges to request amicus briefs more often when there's a novel issue. Some judges seem to be much more willing to do this than others.
11.7.2007 9:20am
Christopher Cooke (mail):
Maybe the best approach to this issue would be to amend the FRAP to state that the Court "may solicit amicus briefs on novel legal issues" and to extend the period for the submission of amicus briefs, from 7 days to 30 days. That would pick up on two suggestions above. I agree with Orin and former clerk, both that amicus briefs can help the court get to the correct result in especially obscure or complicated areas of the law but most cases don't merit them.
11.7.2007 10:26am
OrinKerr:
Public Defender,

I don't think courts would or should hold lawyers to the QP. The idea is just to get some form of notice out there, not to make the notice requirement trump all other competing interests. In any event, as I said in the post, "I'm not sure if requiring 'Questions Presented' is the best way to go; it's not a perfect answer, and perhaps there are better ones. But the existing Federal Rules of Appellate Procedure overlook public notice, and I don't think they should."

Christopher Cooke,

That's an interesting idea, too. I like that.
11.7.2007 1:21pm
Edward A. Hoffman (mail):
OrinKerr writes:
First, no one forces a judge to read anything, and it takes about 3-4 seconds for a judge to take a brief and toss it in the trash.
Even if the judge tosses a brief without reading it (unlikely, in my view) the clerks will have to read it so they can decide whether to urge the judges to do likewise. The clerks' time is a judicial resource, and if more of it is spent on amicus briefs less will be available for other work.
Second, the point of a good amicus brief is to save Judges time: the brief informs the judge much more quickly than it would take the judge to learn the law and imagine that perspective without the help of amici.
You seem to presume the rule will attract only "good" amicus briefs, which strikes me as a questionable assumption. And while a good amicus brief will make it easier for the judge to see the amicus's perspective, that perspective often won't be necessary or even helpful to the court.
11.7.2007 4:15pm
OrinKerr:
Edward A Hoffman writes:
Even if the judge tosses a brief without reading it (unlikely, in my view) the clerks will have to read it so they can decide whether to urge the judges to do likewise. The clerks' time is a judicial resource, and if more of it is spent on amicus briefs less will be available for other work.
In my experience, it takes a clerk about 60 seconds to scan a brief to see if it has any thing good. Given that, I don't think we have reason to fear that so many briefs will be filed that clerks will be overwhelmed. And more broadly, I would think we want clerks to spend time on such matters; it's a pretty useful 60 seconds, I think.
11.8.2007 12:36am
Public_Defender (mail):
I agree that additional amicus filings are no real burden on a court or court staff. If an amicus brief isn't useful, the court can ignore it after spending a few minutes with it. I'm a strong advocate of liberally allowing amici to file timely briefs.

That said, I wouldn't want the court to delay the proceedings to allow amicus filings. After all, if I win, my client gets freedom or a new trial. I usually don't want to delay that. (And if I don't think I can win, I don't take a case to federal court.)

But a court could request amici without delaying the case, as long as the briefing schedule and oral argument aren't delayed to facilitate amici filings. The court could schedule oral argument without regard to the amici and permit the parties to file briefs responding to the amicus in the time between the filing of the reply brief and oral argument.

In other words, my case is a train. If amici can jump on, fine. But I don't want to stop to pick them up.

Permitting amici to join without delaying the case would create more last minute work for the court that requested the amici, but that's fair because the court would only choose to do that when it's worth the effort.

Courts have the power to do everything I mentioned in this post right now. Nothing currently prohibits courts from, sua sponte, requesting a non-party from filing an amicus. I admit that a court rule would likely encourage the practice, but I don't think it would have a huge impact.

I also don't think that a centralized database would be of that much help because it would be used so infrequently that potential amicus probably wouldn't check it all that often.

Professor Kerr is probably doing the most useful thing he can do--using this blog to announce the issues he's interested in. Law professors who want to file amicus on issues have to network with practioners.

Maintaining a blog on useful topics is one way to develop your reputation. For example, I wouldn't write a brief with a confrontation issue without checking Michigan Professor Richard Friedman's blog. If blogging isn't their thing, professors can start showing up at seminars. They can participate regularly in listservs of practitioners and show up at practioner meetings (preferably as a speaker). That way, when an amicus topic comes up, the practioners will want to call the professor.
11.8.2007 5:28am
Public_Defender (mail):
I agree that additional amicus filings are no real burden on a court or court staff. If an amicus brief isn't useful, the court can ignore it after spending a few minutes with it. I'm a strong advocate of liberally allowing amici to file timely briefs.

That said, I wouldn't want the court to delay the proceedings to allow amicus filings. After all, if I win, my client gets freedom or a new trial. I usually don't want to delay that. (And if I don't think I can win, I don't take a case to federal court.)

But a court could request amici without delaying the case, as long as the briefing schedule and oral argument aren't delayed to facilitate amici filings. The court could schedule oral argument without regard to the amici and permit the parties to file briefs responding to the amicus in the time between the filing of the reply brief and oral argument.

In other words, my case is a train. If amici can jump on, fine. But I don't want to stop to pick them up.

Permitting amici to join without delaying the case would create more last minute work for the court that requested the amici, but that's fair because the court would only choose to do that when it's worth the effort.

Courts have the power to do everything I mentioned in this post right now. Nothing currently prohibits courts from, sua sponte, requesting a non-party from filing an amicus. I admit that a court rule would likely encourage the practice, but I don't think it would have a huge impact.

I also don't think that a centralized database would be of that much help because it would be used so infrequently that potential amicus probably wouldn't check it all that often.

Professor Kerr is probably doing the most useful thing he can do--using this blog to announce the issues he's interested in. Law professors who want to file amicus on issues have to network with practioners.

Maintaining a blog on useful topics is one way to develop your reputation. For example, I wouldn't write a brief with a confrontation issue without checking Michigan Professor Richard Friedman's blog.

If blogging isn't their thing, professors can start showing up at seminars. They can participate regularly in listservs of practitioners and show up at practioner meetings (preferably as a speaker). That way, when an amicus topic comes up, the practioners will want to call the professor.
11.8.2007 5:28am
stanneus :

I think the amicus crowd is inflating its importance and role in the over-all appellate picture, and thus misperceives the real value of having easay access to "questions presented" in pending but unperfected appeals in courts of last resort. Only a teensy fraction of appeals end up in courts of last resort. The value of questions presented is not to the numerically insignificant would-be amici in those tribunals, but to the lower court litigators: it helps them preserve, frame or re-frame issues for vindication in intermediate appellate litigation, which is where, in most jurisdictions, 98%+ of all cases draw their final breaths.
11.8.2007 10:26am