Amicus curiae
The examples and perspective in this deal primarily with the United States and do not represent a worldwide view of the subject. (March 2020) |
An amicus curiae (lit. 'friend of the court'; pl. amici curiae) is an individual or organization that is not a
In
History
Direct or indirect connections between the amicus curiae figure and the Roman juridical experience are still debated.[4][5][6][7][8] Some scholars simply explain the Latin expression with the fact that the cultural elites' (including the jurists') language of the Anglo-Saxon world was Latin, so that many Latin legal terms first spread through English law, and then also in the Law of the United States.[9][10][11] The Italian academic Giovanni Criscuoli, while admitting the theoretical possibility of eventually comparing it with the Roman figure of the "consiliarius", concludes that: "it is a figure of exclusive Anglo-Saxon blood".[12]
Starting in the 9th century,[13] it was incorporated into English law, and it was later extended to most common law systems. Later, it was introduced in international law, in particular concerning human rights. From there, it was integrated in some civil law systems (it has been, as at 2013,[14] integrated into Argentina's law system and Honduras's 2010 civil procedures code). Today, it is used by the European Court of Human Rights, the Inter-American Commission on Human Rights, the Inter-American Court of Human Rights, the Court of Justice of the European Union and the Special Tribunal for Lebanon.
Presentation
The role of an amicus was described by Lord Justice of Appeal Cyril Salmon in Allen v Sir Alfred McAlpine & Sons Ltd [1968] 2 QB 229 at p. 266 F-G:
I had always understood that the role of an amicus curiae was to help the court by expounding the law impartially, or if one of the parties were unrepresented, by advancing the legal arguments on his behalf.
The situation most often noted in the press is when an
In prominent cases, amici curiae are generally organizations with sizable legal budgets. In the United States, for example, non-profit legal advocacy organizations, such as the
De facto amici curiae who do not file briefs may present in the
United States Supreme Court
The Supreme Court of the United States has special rules for amicus curiae briefs sought to be filed in cases pending before it. Supreme Court Rule 37 states, in part, such a brief should cover "relevant matter" not dealt with by the parties which "may be of considerable help".[17] The cover of an amicus brief must identify which party the brief is supporting, or if the brief supports only affirmance or reversal.[18] The Court also requires that all non-governmental amici identify those providing a monetary contribution to the preparation or submission of the brief.[19] Briefs must be prepared in booklet format, and 40 copies must be served with the Court.[20]
In the United States Supreme Court, unless the amicus brief is being filed by the federal government (or one of its officers or agents) or a U.S. state, permission of the court (by means of
Religious groups regularly file amicus briefs at the U.S. Supreme Court. Muslim organizations and individuals, for example, have filed amicus briefs on both sides of recent cases dealing with divisive cultural issues, such as same-sex marriage and expansive conceptions of gender identity.[23]
Canada
In
Another situation in which amicus may be appointed is when an accused is self-represented in a trial for offences such as sexual assault or assault in a domestic violence context. An unrepresented accused has the right to cross-examine Crown witnesses, but it may be undesirable to permit him or her to personally cross-examine, for example, the complainant. As a result, the Criminal Code permits the judge to order that the accused will not personally cross-examine the witness, and to name an uninvolved lawyer to conduct the cross-examination in place of the accused.[25]
Italy
In
World Trade Organization (WTO)
The role of amicus curiae briefs in the
The first WTO case to comprehensively examine the admissibility of amicus curiae briefs was US – Shrimp.
The issue was re-examined in US – Lead and Bismuth II which concerned the imposition of duties by the US on certain imported hot rolled lead and bismuth carbon steel from the UK.[33] The Panel at first instance affirmed the position in the US – Shrimp case and accepted two amicus curiae briefs that were submitted.[34] On appeal, the Appellate Body relied on Article 17.9 of the Dispute Settlement Understanding and Rule 16(1) of the Working Procedures for Appellate Review to create rules to accept amicus curiae briefs.[35] This was deemed as the source of legal authority to accept such briefs by an Appellate Body.[35]
The next significant case to deal with amicus curiae briefs was EC – Asbestos, where the French government banned domestically produced and imported asbestos products.[36] Of the five amicus curiae briefs received by the Panel, only two that were submitted by the European Community, were accepted.[37] The panel did not provide any explanation as to why they were accepted or rejected. On appeal, the Appellate Body relied on Rule 16(1) of the Working Procedures for Appellate Review to create additional procedures to deal with the amicus curiae briefs.[38] Of the 11 briefs submitted, the Appellate Body accepted none on the basis they failed to comply with these additional procedures.[38]
See also
References
- ^ "The Statement of Interest as a Tool in Federal Civil Rights Enforcement" (PDF). Harvard Civil Rights-Civil Liberties Law Review.
- ^ R v Kahsai, 2023 SCC 20.
- ^ "Legal Representation of Children in Canada. 5. Amicus Curiae". justice.gc.ca. Department of Justice Canada. Government of Canada. 3 February 2023. Archived from the original on 24 November 2022. Retrieved 21 June 2023.
In some cases, the court may appoint amicus curiae in a case that involves children, so as to help the court in determining what is in the best interests of the children.
- ISBN 1-59332-088-4. Archived from the originalon 17 May 2012.
- ^ Krislov, S., The Amicus Curiae Brief, in 72 YLJ. 1962, 694 ss.
- ^ Angell, E., The Amicus Curiae: American Developments of English Institutions, in 16 ICLQ, 1967, 1017 ss.
- ^ Edmund Ruffin Beckwith and Rudolf Sobernheim, Amicus Curiae—Minister of Justice, 17 Fordham L. Rev. 38 (1948).
- ^ Friends of the Supreme Court: Interest Groups and Judicial Decision Making, Paul M. Collins.
- ^ "Amicus Curiae: Origin, Worldwide Experience and Suggestions for East European Countries", Hungarian Journal of Legal Studies (2019).
- JSTOR 24870502. Retrieved 26 December 2022 – via JSTOR.
- ^ Wiik, Astrid (26 December 2018). "Amicus Curiae before International Courts and Tribunals". Nomos Verlagsgesellschaft mbH & Co. KG. Retrieved 26 December 2022 – via library.oapen.org.
- ^ "Treccani - La cultura italiana | Treccani, il portale del sapere". www.treccani.it. Retrieved 26 December 2022.
- ^ Anderson, Helen (1 January 2015). "Frenemies of the Court: The Many Faces of Amicus Curiae". University of Richmond Law Review. 49: 361. Retrieved 26 December 2022.
- ^ Domingo Rondina (16 May 2012). "Amicus Curiae Constitucional.com.ar".
- ^ Gura, Alan (7 July 2009). "Thirty-four states support second amendment incorporation". ChicagoGunCase. Archived from the original on 21 July 2012. Retrieved 4 October 2009.
- ^ Lee, Rachel C. (April 2009). "Ex Parte Blogging: The Legal Ethics of Supreme Court Advocacy in the Internet Era" (PDF). Stanford Law Review. 61 (6): 1535–1571. Archived from the original (PDF) on 21 May 2009.
- ^ Rule 37(1).
- ^ Supreme Court Rule 37.3(a)
- ^ Supreme Court Rule 37.6
- ^ United States Supreme Court Rule Archived 12 October 2016 at the Wayback Machine, 33
- ^ FRAP 29.
- ^ Goldman, Brian P. (2011). "Should the Supreme Court Stop Inviting Amici Curiae to Defend Abandoned Lower Court Decisions?" (PDF). Stanford Law Review. 63: 907–972. Retrieved 25 April 2017.
- ISSN 0748-0814.
- ^ "Chapter 7 – Managing the Unrepresented Accused". Ontario Ministry of the Attorney General. 29 October 2015. Retrieved 11 May 2020.
- ^ "Testimonial Support for Vulnerable Adults (Bill C-2): Case Law Review (2009–2012). 5. Preventing Questioning by Self-represented Accused: Section 486.3". Department of Justice Canada. 18 November 2016. Retrieved 11 May 2020.
- ^ Corte costituzionale.
- ^ AIC.
- ^ Van den Bossche, Peter (2013). The Law and Policy of the World Trade Organization (3rd ed.). Cambridge University Press. p. 263.
- ^ a b Van den Bossche, 2013, p. 263
- ^ Panel Report, United States – Import Prohibition on Certain Shrimp and Shrimp Products, WT/DS58/R/Corr.1 (3 November 1998)
- ^ Panel Report, United States – Import Prohibition on Certain Shrimp and Shrimp Products, WT/DS58/R/Corr.1 (3 November 1998), [7.8]
- ^ Appellate Body Report, United States – Import Prohibition on Certain Shrimp and Shrimp Products, WTO Doc WT/DS58/AB/R12, AB-1994-4 (12 October 1998), [89]
- ^ Panel Report, United States – Imposition of Countervailing Duties on Certain Hot-rolled Lead and Bismuth Carbon Steel Products Originating in the United Kingdom, WTO Doc WT/DS138/R (23 December 1999)
- ^ Panel Report, United States – Imposition of Countervailing Duties on Certain Hot-rolled Lead and Bismuth Carbon Steel Products Originating in the United Kingdom, WTO Doc WT/DS138/R (23 December 1999), [24]
- ^ a b Appellate Body Report, United States – Imposition of Countervailing Duties on Certain Hot-rolled Lead and Bismuth Carbon Steel Products Originating in the United Kingdom, WTO Doc WT/DS138/AB/R, AB-2000-1 (10 May 2000), [39]-[42]
- ^ Panel Report, European Community – Measures Affecting Asbestos and Products Containing Asbestos, WTO Doc WT/DS135/R (18 September 2000).
- ^ Panel Report, European Community – Measures Affecting Asbestos and Products Containing Asbestos, WTO Doc WT/DS135/R (18 September 2000), [8.12].
- ^ a b Appellate Body Report, European Community – Measures Affecting Asbestos and Products Containing Asbestos, WTO Doc WT/DS135/AB/R, AB-2000-11 (12 March 2001), [50]-[51].
External links
- Amicus curiae at the Merriam-Webster Online Dictionary
- Amicus curiae at the MSN Encarta Dictionary(2009-10-31)
- Definitions from Dictionary.com
- Amicus curiae at The Free Dictionary, Thesaurus and Encyclopedia