Amicus Curiae and the Public Interest: A Search for a Standard1

Abstract

Despite the widespread and influential presence of an increasingly partisan amicus curiae brief, the role of the “friend of the court” brief remains controversial. Changing rules of access and diverging recommendations for its behavior are associated with two distinct views of jurisprudence. A traditional understanding of adversarial proceedings emphasizes the individual interests of the litigants, and correspondingly excludes consideration of non‐parties and the general public. An alternative to the traditional, individual‐based, liberal jurisprudence (and its skepticism toward public interest arguments) is a recognition of the need to integrate individual and public interests and to find a coherence between them.The skeptical view of the public interest can be avoided by adopting a post‐empiricist view, which recognizes a plurality of interpretations of the public interest. The amicus curiae role, if given wide access, can serve as a tool of inclusive pluralism, which recognizes a diversity of views regarding the public interest and the impact of legal decisions on the public.