Here’s recent opinion by Judge Michael Y. Scudder, Jr. of the U.S. Seventh Circuit describing what is and is not helpful in an amicus brief: Prairie Rivers Network v. Dynegy Midwest Generation, LLC, No. 18-3644 (7th Cir. Sept. 24, 2020) (Scudder, J., in chambers).
- Not helpful: briefs that merely repeat a party’s argument; briefs that “serve only as a show of hands on what interest groups are rooting for what outcome.”
- Helpful: “A true friend of the court will seek to add value to our evaluation of the issues on appeal.” Ways to do this include the following:
- Offering a different analytical approach to the legal issues before the court;
- Highlighting factual, historical, or legal nuance glossed over by the parties;
- Explaining the broader regulatory or commercial context in which a question comes to the court;
- Providing practical perspectives on the consequences of potential outcomes;
- Relaying views on legal questions by employing the tools of social science;
- Supplying empirical data informing one or another question implicated by an appeal;
- Conveying instruction on highly technical, scientific, or specialized subjects beyond the ken of most generalst federal judges;
- Identifying how other jurisdictions—cities, states, or even foreign countries—have approached one or anther aspect of a legal question or regulatory challenge.
In short, “an amicus curiae brief should be additive—it should strive to offer something different, new, and important.”