Amicus Briefs Research Articles

How a Public Health Crisis Created an Impetus for Change: The Robert Wood Johnson Foundation's National Commission to Transform Public Health Data Systems: Expert Roundtable.

How a Public Health Crisis Created an Impetus for Change: The Robert Wood Johnson Foundation's National Commission to Transform Public Health Data Systems: Expert Roundtable.

Feminist Friends of the Court: Amicus Curiae, Social Movement Institutional Activism, and the U.S. Supreme Court’s Women’s Rights Cases

ABSTRACT To influence outcomes in U.S. women’s rights Supreme Court cases, feminist advocacy groups and their allies routinely file amicus curiae briefs, third-party briefs designed to persuade the justices in their decision-making. Yet no study has systematically examined the impact of these feminist-supporting amici on judicial decision-making. We argue that advocacy groups’ amicus mobilization can be understood as institutional activism, activism utilizing a judicial channel through which advocacy groups can communicate directly with the justices. To discern whether this form of feminist institutional activism shapes judicial law, we examine amicus activity in the women’s rights cases from the mid-1960s until 2016. We utilize a resource mobilization perspective to examine mobilization of amici but offer refinements of the theory by invoking affected-groups and information theories. Our regression analyses show that use of amici can persuade the justices to vote in favor of the feminist litigant. We also investigate whether the influence of feminist amicus activity is moderated by legal circumstances (for instance, whether a justice is conservative or liberal). We find only limited evidence that the potency of this form of institutional resource mobilization is moderated by the legal context.

Pro Se Precedent in the U.S. Tax Court: A Case for Amicus Briefs

Pro Se Precedent in the U.S. Tax Court: A Case for Amicus Briefs

Remarks by Dario Milo

Yes, certainly, and thank you for the opportunity. The major development that the Panel was involved in by invitation from the Inter-American Court was to submit an expert amicus brief in the El Universal case, which was winding its way through the Inter-American Court system, and just before Christmas last year, the Inter-American Court ruled. This was a case that involved the heart of political speech. It was criticism in the form of an opinion by a journalist working for El Universal, of the then president of Ecuador. So it really was the locus classicus of political speech in a democracy.

North Dakota, which once lost its fight to regulate PBM practices, gets a rematch

North Dakota, which once lost its fight to regulate PBM practices, gets a rematch

A Commentary on “The Rorschach and Violent Crime” (de Ruiter, 2021)

A Commentary on “The Rorschach and Violent Crime” (de Ruiter, 2021)

Organ Retention Litigation

The common practice of retaining organs and tissues after the autopsy dissection is a potential legal liability for forensic pathologists and the offices they work for. In 1988, a coroner and the coroner’s office were successfully sued for corneal procurements without the consent of the next of kin. That led to later lawsuits of forensic pathologists and medical examiner offices over the retention of brains for formalin fixation and neuropathologic examination without consent, although the autopsies were not consent based. National Association of Medical Examiners became involved in this ligation and filed numerous amicus briefs. These later lawsuits were not successful. After caselaw on the subject, such lawsuits have largely abated. Nonetheless, the threat of such lawsuits remains, and statutory language can be promulgated to mitigate the risk.

Supreme Court Strikes Down Third Challenge to Affordable Care Act

Supreme Court Strikes Down Third Challenge to Affordable Care Act

“She Blinded Me with Science”: The Use of Science Frames in Abortion Litigation before the Supreme Court

While much of the work on amicus briefs focuses on whether such briefs affect Supreme Court outcomes or doctrine, much less is known about the content of these briefs, particularly how groups opt to frame issues as part of their litigation strategy. In this study, I leverage an approach to content analysis that has previously been used to analyze judicial opinions and use it to assess the frames used by amicus groups in a single policy area over four decades. Using an original dataset of amicus briefs filed in Supreme Court cases on the right to abortion, I test the claim from the social movement literature that antiabortion groups have adopted the language of science in the post-Roe era. However, I find only limited support for such a shift, suggesting that litigation strategies may not track framing approaches used in other venues. Among antiabortion amici, only health organizations rely upon science framing, partially neutralizing the monopoly that prochoice health organizations had established with respect to scientific claims. By comparison, prochoice groups generally employ more science framing in their briefs than prolife groups and show evidence of calibrating this frame in response to changes in doctrine and court composition. Beyond its contributions to illuminating the movement-countermovement dynamics in abortion litigation, this study offers an approach that could be easily adapted to the study of other policy areas, contributes to the literature on social movements and framing, and advances our understanding of how organized interests assert themselves through the amicus curiae brief.

When the potted plants are missing: how justice attendance at the State of the Union influences the solicitor general

ABSTRACT Among all the institutions or organizations who give file briefs or petition the U.S. Supreme Court, the U.S. Solicitor General (SG) may be the most powerful. It is well documented that petitions with the support of the SG are much more likely to be granted certiorari, and, if the SG advocates a decision, the Court is likely to decide in a likeminded manner. We examine what influence judicial attendance at the State of the Union (SOTU) may have on the activity of the SG Others have explored the motivating factors for justice attendance; these studies have found policy disagreements and public opinion play a role. We argue and find that the SOTU is a valid public announcement of the president’s agenda and when there are fewer justices in attendance, the SG is motivated to file more amicus briefs. Our findings line up with these expectations.

ABHW files amicus brief in Wit v. United Behavioral Health

The Association for Behavioral Health and Wellness (ABHW), the national voice for payers that manage behavioral health insurance benefits for over 200 million people, on April 14 submitted an amicus curiae brief in support of United Behavioral Health in Wit v. United Behavioral Health, which is on appeal in the U.S. Court of Appeals for the Ninth Circuit. The brief focuses on the rigorous process by which plans develop clinical guidelines and the central role of those guidelines in plans' management of member benefits. According to an excerpt from the brief, “Clinical guidelines health plans use to determine coverage and benefits are the products of rigorous processes that aim to balance numerous considerations: safeguarding the goal that plan members receive the treatment most appropriate for their condition, achieving consistency with generally accepted medical standards, and enabling the plan to manage benefits.” The brief also indicated, “It is not a court's role to condemn evidence‐based clinical guidelines that a plan has chosen to apply under its own contracts — even if the court or a party's paid experts believe different standards are better or conclude the plan should have weighed the relevant considerations differently.”

A Systemic Perspective

A Systemic Perspective

Ukraine and the Netherlands v. Russia re MH17, Amicus Curiae Brief on behalf of the Human Rights Law Centre of the University of Nottingham

This is an amicus curiae brief in the case of Ukraine and the Netherlands v. Russia (nos 8019/16, 43800/14 and 28525/20) before the European Court of Human Rights, filed on behalf of the Human Rights Law Centre at the University of Nottingham, which was granted permission by the President of the Grand Chamber to act as third party intervenor in the case. The brief deals exclusively with the 2014 downing of the MH17 airliner over Ukraine. The first part of this brief addresses issues of attribution and state jurisdiction in the sense of Article 1 ECHR, providing guidance on the applicable tests for considering whether the respondent state can be held responsible for the downing of MH17. The second part of the brief examines how mistake of fact in the use of lethal force should be considered in light of the obligations under Article 2 ECHR. The third part of the brief examines possible prevention and complicity doctrines relating to the right to life under the Convention in the context of weapons transfers to third parties.

A Right to Bear Arms? The Contested Role of History in Contemporary Debates on the Second Amendment ed. by Jennifer Tucker, Barton C. Hacker and Margaret Vining

Reviewed by: A Right to Bear Arms? The Contested Role of History in Contemporary Debates on the Second Amendment ed. by Jennifer Tucker, Barton C. Hacker and Margaret Vining James H. Read (bio) Keywords Second Amendment, Gun rights, Gun control, Open carry, Firearms A Right to Bear Arms? The Contested Role of History in Contemporary Debates on the Second Amendment. Edited by Jennifer Tucker, Barton C. Hacker, and Margaret Vining. (Washington, DC: Smithsonian Institution Press, 2019. Pp. 345. Cloth, $26.44.) In 1686 Sir John Knight, a wealthy merchant and relentless persecutor of Catholics and nonconforming Protestants, carried a firearm into a church service in Bristol, England. He was arrested for violating the 1328 Statute of Northampton, which prohibited going armed in public "to the terror of the people." He was acquitted. What Sir John intended is unclear. To threaten the congregation? To warn Protestants that armed Catholics were at large in the town? Peacefully to worship with firearm at his side? The grounds for his acquittal are likewise unclear. Had he the right as a private individual to carry firearms into a church? Was he instead acting under public authority? Sir John himself claimed in court that he left his guns outside. This obscure episode is discussed by at least four contributors to A Right to Bear Arms? (see 5, 24–28, 33, 76–77, 157, 192–99). Moreover Rex v. Knight (1686) is frequently cited as a key precedent by contemporary U.S. advocates of an unrestricted constitutional right of open- and concealed-carry. Priya Satia in A Right to Bear Arms? acknowledges it may seem "politically absurd" to "rummage in the British past" to debate contemporary Second Amendment questions (37). Yet the U.S. Supreme Court made such rummaging necessary in its 2008 ruling District of Columbia v. Heller. That the Second Amendment affirmed a state's right to maintain a public militia is not disputed. Justice Antonin Scalia's Opinion for the Court in Heller argued, however, that the Second Amendment also incorporated a longstanding individual right under English common law to possess firearms. Whether the Second Amendment did incorporate English firearms law is disputed, within this volume and elsewhere, as is the character and evolution of English and American firearms law. Several of the scholars represented in A Right to Bear Arms? authored or coauthored amicus briefs in the Heller case, including Joyce Lee Malcolm (whose work grounded Justice Scalia's opinion in the case); and Saul Cornell and Lois Schwoerer, who argue that the Second Amendment's sole purpose was to ensure the viability of state militias, and that its framers assumed private firearms law would remain with the states. [End Page 124] The competing Heller briefs are included as Appendices in A Right to Bear Arms? (217–59, 261–309). Readers unacquainted with the case should read the Appendices first, then the essays in the body of the volume. Those essays were written post-Heller, and in many respects develop historical and legal questions that Heller left open. Heller declared an individual constitutional right to own firearms. The ruling did not directly address issues of concealed- or open-carry. Moreover, Heller acknowledged that private firearms had always been subject to public regulation, but did not specify which regulations were constitutionally acceptable and which were not. This returns us to the murky 1686 case of Rex v. Knight. Did Sir John's acquittal signify that Englishmen (or at least wealthy Protestants) had a right to carry firearms anywhere, including churches, so long as they did not deliberately aim to terrorize others? That is the position of Stephen P. Halbrook (189–201), whose writings are cited by contemporary advocates of a presumptive constitutional right to carry arms anywhere, anytime. Halbrook argues that the Second Amendment incorporated a broad individual right to public carry of firearms that could be overridden only if it was proven beyond reasonable doubt that one had acted with "malo animo," a specific intent "to terrify the people" (192–93). That interpretation of English law is strongly disputed by other authors in the volume. Saul Cornell argues that under English law the practice of riding armed was always subject to strict regulation...

The Influence of Procurator Generals in Constitutional Review: The Case of Bulgaria

AbstractAfter democratic transitions, many Eastern European countries reformed their political institutions in a piecemeal fashion. Focusing on the Bulgarian Constitutional Court from 1992 to 2012 and the Soviet-style procurator general, we analyze how legal reforms operate in practice in transitional societies. Using original data, we find that judges are influenced by the powerful and unaccountable procurator general. Judges’ decisions to strike down laws also are guided by alignment with their or their appointers’ political preferences and the opinions of interested parties in amicus briefs. The study has implications about interbranch relations and the role of procurator generals in constitutional review.

Removal of Context: Blackstone, Limited Monarchy, and the Limits of Unitary Originalism

This article is part of a series on Article II, questioning the unitary theory’s three pillars: the Executive Vesting Clause, the Take Care Clause (or the “Faithful Execution” clauses), and the Decision of 1789 (or more accurately, the Indecisions of 1789). “Removal of Context” focuses on the “executive power” part of the Vesting Clause: Did “executive power” imply supervision and removal in the eighteenth century? What do the unitary theorists cite to support their claim that “executive power” includes removal, and “indefeasibly” so? Unitary executive theorists’ reliance on the English Crown in the seventeenth and eighteenth centuries, but they overlook or obscure the problems of relying on England’s limited monarchy, the era’s rise of Parliamentary supremacy over the Crown and its power to eliminate or regulate (i.e., make defeasible) royal prerogatives. There appears to be no evidence that executive removal was ever conceived as a “royal prerogative” at all, and the historical record indicates that the king did not have a general removal power at pleasure. The structure of the historical comparison has a major flaw: They concede that the Constitution explicitly limits many core royal powers, such war, peace (treaties), and the veto, so that the president is weaker than the king, but somehow Article II implies unnamed “executive powers” (like removal) that make a president stronger than a king? Moreover, there were eighteenth-century royal prerogatives related to law execution (prorogue and dissolution), but no one claims Article II “executive power” implies them. When one investigates the unitary evidence more closely and follows their sources, one finds a pattern of misinterpreting historical sources, especially Blackstone in amicus briefs and law review articles in the unitary executive scholarship. In particular, the recent brief by unitary scholars in Seila Law misinterprets Blackstone’s use of the word “disposing” of offices as removing, instead of dispensing or appointing (which are indicated by context and general usage) and then misquotes a passage from Blackstone, reversing his meaning from his uncertainty about the relevant law of offices to a certain positive claim about removal. These misreadings are more than just small or narrow errors. They obscure more significant points: Blackstone was fundamentally in favor of parliamentary supremacy, against “indefeasible” executive powers; and Blackstone never mentions removal as a royal prerogative or a general executive power, which is powerful counter-evidence to the unitary theorists’ assumptions. These errors are also a cautionary moment about originalist methods and the notion that originalism is more reliable or objective than other methods of interpretation.

Taking the Fight for the Insanity Defense to the States

Back to table of contents Previous article Next article Government & LegalFull AccessTaking the Fight for the Insanity Defense to the StatesKatie O'ConnorKatie O'ConnorSearch for more papers by this authorPublished Online:3 Nov 2020https://doi.org/10.1176/appi.pn.2020.11a22AbstractTrent Holmberg, M.D., has advocated for a traditional insanity defense in Utah for two years, and now that the Supreme Court has not stepped in, he says psychiatrists must advocate at the state level to protect their patients.In April, the Supreme Court ruled that states are not constitutionally required to allow defendants to plead not guilty by reason of insanity. That means now, without an overarching national requirement that states have a meaningful insanity defense, state-level advocacy is more important than ever, said Trent Holmberg, M.D., an adult and forensic psychiatrist in Utah and president of the Utah Psychiatric Association.“Do we really want to wait around for the Supreme Court to tell us our law is unconstitutional?” —Trent Holmberg, M.D.Utah is one of the four states without a traditional insanity defense, along with Kansas, Idaho, and Montana. For the past two years, Holmberg has helped fight to change that in Utah, but legislation that would have done so has so far been unsuccessful.In the case, Kahler v. Kansas, Justice Elena Kagan wrote the majority opinion in which the court sided with Kansas. “No insanity rule in this country’s heritage or history was ever so settled as to tie a State’s hands centuries later,” Kagan wrote. The choice over whether to allow an insanity defense is a choice “for Kansas to make—and, if it wishes, to remake and remake again as the future unfolds.”“We were always hopeful the Supreme Court would make the states change, but my argument for the last two years has been: Do we really want to wait around for the Supreme Court to tell us our law is unconstitutional?” Holmberg said.Now that the Supreme Court has ruled that it is not going to step in, Holmberg said, psychiatrists must get involved in state-level advocacy to share their expertise on this topic for the benefit of their patients.Holmberg has been conducting forensic evaluations for almost 20 years. “I’m close enough to the situation that I know there are cases in which what the person did was not [his or her] fault. It was a product of the person’s mental illness,” he said. “When people are sick and do something that’s out of their control, they shouldn’t be held morally responsible. That’s been the traditional way we’ve approached lawmaking and crime and punishment since Medieval times.”Often, family members—who are frequently the victims of the alleged crime—ask that their loved one who is being charged be sent to a psychiatric hospital, rather than to a prison, where they may be abused or not receive proper care, he said. Yet the state says no. “What’s frustrating about working and living in one of these states without a traditional defense is that we see this situation over and over,” Holmberg said.But it’s not just those four states without traditional insanity defenses that must prepare to advocate. Utah’s attorney general wrote an amicus brief in the Supreme Court case arguing that states should not be required to have a traditional insanity defense. Fifteen other states signed on to the brief: Alabama, Alaska, Arkansas, Florida, Georgia, Idaho, Indiana, Louisiana, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, and Texas.Thirteen of those states have traditional insanity defenses. Holmberg said his concern is that those states will now attempt to abolish their defenses. “The only solution to that is to fight it out state by state and try to do something that is meaningful for patients with mental illness,” he said.Going forward, he urged psychiatrists in other states, especially those that signed onto the brief, to pay careful attention to what their legislatures and governments are doing related to the insanity defense. He and other advocates were unaware that Utah’s attorney general would be filing the amicus brief until after the fact.“If other states propose laws to abolish the defense, I could see them passing unless we really get into organized, grassroots opposition and educate people that mental illness can drive behavior. We need to have a way to address these situations,” he said. ■ ISSUES NewArchived

From the Chair

The last time I wrote this letter, the world was a bit more normal. To say that we have all been dealing with unprecedented times is putting it mildly. The global economy, a pandemic, racial tensions and protests, political unrest, extreme wildfires, and more. Everyone has been affected. I do hope though that everyone has been healthy and safe and will stay that way until we are back to some stable level of normalcy whatever that might look like.That all said, I have been the Chair of the BVC for a little over a year now and have seen a lot of progress as ASA adjusts and moves forward. Our CEO, Johnnie White, did not know exactly what he was in for as he took the helm a year prior to this pandemic but he was on a path forward and has pivoted nicely to deal with all that has been thrown at him. ASA's forward progress is also not possible without the time and effort devoted to the BVC and ASA by its members to committees and subcommittees. If you are interested in volunteering in any way please reach out to me.Please support ASA by attending and urging others to do the same. A link to the conference is: https://www.appraisers.org/Education/events/asa-international-conference.Check out the ASA website for updates, news and links to other programs and course offerings.On June 5th the ASA Educational Foundation signed a publishing agreement with McGraw Hill to publish Shannon Pratt's 6th edition of Valuing a Business with the American Society of Appraisers. Through its Business Valuation Committee, ASA will collaborate with Dr. Pratt, one of the world's leading authorities on business valuation, to update and expand this landmark reference of valuation theory and practice through a combination of contributing authors.It is a distinct privilege to be the Chair of ASA's BVC at a time that we are able to take Shannon's long-standing, well-regarded treatise and make the ASA its new home, while providing a legacy for Shannon that will fulfill his wishes as a devoted member of ASA for decades.Over the decades, the book's unsurpassed explanations of all valuation issues have made Dr. Shannon Pratt's Valuing a Business the definitive text in the field, against which every other business valuation book is measured. ASA and its Business Valuation Committee are proud to have the opportunity to continue the legacy of such a world class text.The book is expected to be available in 2021.On June 9, 2020, ASA filed an amicus brief on behalf of the defendants in an ongoing employee stock ownership plan (ESOP) case, Lee v. Argent Trust. The case, which is pending in the United States Court of Appeals for the Fourth Circuit, involves the valuation of a company for purposes of an ESOP transaction, and the appropriate valuation approaches, methods, and techniques to be considered in the ESOP appraisal. The brief was in support of a successful motion to dismiss which was granted and was thereafter appealed by the plaintiff which prompted the need for the brief. Shortly after the ASA filed its brief the plaintiff withdrew its appeal. ASA was pleased to be represented in its amicus brief by attorneys Theodore M. Becker, J. Christian Nemeth, and Richard J. Pearl of the firm McDermott Will & Emery. ASA also had significant contributions of several members in helping to develop the brief.ASA is the gold standard in our profession. We need to continue doing the types of things described above in order to maintain that status. We also need to encourage all of our young professionals to get active in ASA to ensure the continuity of ASA into the future.STAY SAFE!I hope everyone has a strong, healthy and safe finish to 2020, Ken

Supreme Court Upholds DACA Program in 5-4 Decision, but Peril Remains

Supreme Court Upholds DACA Program in 5-4 Decision, but Peril Remains

The Amicus Game

Despite increased scholarly attention toward analyzing the influence of amicus briefs on case outcomes, we lack a microfounded model for understanding what we observe. Our analysis remedies this gap, modeling a world in which potential filers can advocate for a particular ruling and may provide information to influence a judge’s decision. We show that the influence of an amicus brief depends on the interaction of the group’s bias and contextual factors. Specifically, while the influence of biased groups is sensitive to features of each case, such as the stakes of the issue, moderate group influence is relatively stable. Our findings are also relevant for empirical studies; they indicate that analyses of influence with observational data are likely undermined by a failure to account for strategic group behavior. Notably, analyzing only filed briefs will generate biased estimates of influence unless the researcher accounts for a group’s interest in each particular case.