Friendly fire

Amicus briefs can help a party. They can also hurt.

by Amy Gutman ’93

6493

Credit: Phil Farnsworth

With a little help from your friends: Amicus briefs are meant to offer judges some extra information. But is amicus practice getting out of hand?

The amicus curiae–or “friend of the court”–brief has deep roots, dating back to ancient Rome. Its original purpose was fairly narrow: to guard against legal or factual error. Today, that role has broadened considerably, with amicus briefs serving a wide range of functions, from explicating technical materials to exploring issues of public interest or offering supplementary information from other countries or disciplines.

“An amicus brief can reorient the frame through which a case is understood,” said Professor David Barron ’94. “Even better, it can suggest an alternate legal route, one that the court prefers to options suggested by either party.”

Flagging this alternate route is a key goal of the amicus brief filed in the U.S. Supreme Court recently by Barron and 39 other HLS professors arguing that the school is not legally required to exempt military recruiters from an evenhanded application of its antidiscrimination policy–which is at odds with the military’s “don’t ask, don’t tell” policy on homosexuality. The brief argues that HLS can exclude military recruiters from its Office of Career Services and nonetheless be in compliance with the Solomon Amendment, a 1994 law allowing the government to block federal funds to universities that restrict military recruiters’ access to students. Barron and his colleagues say that the Solomon law, properly construed, requires only that the military be given the same access to students, on the same terms, given to other employers.

The brief offers grounds quite different from those pressed by the Forum for Academic and Institutional Rights, the consortium of law schools and professors who filed the underlying constitutional challenge to the Solomon law on grounds of academic freedom and free association. The amicus brief even points out some dangers in deciding the case on constitutional grounds.

In December, when the Solomon Amendment case was heard, several justices referred to the argument of the amicus brief and suggested that it could permit the Court to avoid a constitutional ruling. In January, the scholarly journal Green Bag cited the HLS brief as one of the best examples of legal writing in 2005.

Professor Laurence Tribe ’66, one of the contributors to the HLS brief, has participated in only a handful of amicus briefs in his long career, and only when he believed an issue was “really important” and that the point of view or information to be offered wasn’t “otherwise fully before the court.” Amicus briefs often present challenges in terms of coordinating the various groups interested in weighing in, he notes. “There’s a diplomatic art to pulling together the people involved,” said Tribe. “And sometimes less is more. Sometimes the art is persuading people not to file an amicus brief.”

Professor Martha Minow, who has worked on numerous amicus briefs in federal and state courts, noted that “an amicus brief can offer the court a picture of the larger context of the issues presented–and that context can include impact on legal doctrines and judicial administration, historical trends, or social and economic effects of the decision.”

The Solomon brief is just the latest of many recent amicus filings by HLS faculty members in high-profile cases. Others have weighed in on the Supreme Court’s consideration of whether the federal government can prohibit the personal medical home use and production of marijuana (Professors Charles Fried and David Shapiro ’57 said it cannot) and the Massachusetts Supreme Judicial Court’s consideration of gay marriage (Tribe filed an amicus brief arguing against a bill that would have barred gay marriage while providing for an alternate “civil union” law).

Students, too, have gotten into the game. During her first semester at HLS, Alexandra Chirinos ’07 joined a student group working with the Harvard Immigration and Refugee Clinic on an amicus brief seeking protection of the family unit in asylum cases–a conclusion adopted in June by the 9th Circuit Court of Appeals.

“I felt like I was truly doing groundbreaking work and practicing activism in the truest sense of the word,” said Chirinos.

Still, for some, writing an amicus brief isn’t as satisfying as filing a brief on behalf of a party. “Amicus practice has gotten way out of hand,” said Fried, noting a recent proliferation of amicus filings, some signed by hundreds of “authors.” “A party brief is a more serious participation. I prefer being in the game to cheering from the sidelines.”