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An amicus curiae (; ) is an individual or organization that is not a party to a legal case, but that is permitted to assist a court by offering information, expertise, or insight that has a bearing on the issues in the case. Whether an amicus brief will be considered is typically under the court's discretion. The phrase is legal Latin and the origin of the term has been dated to 1605–1615. The scope of amici curiae is generally found in the cases where broad public interests are involved and concerns regarding civil rights are in question.
In American law, an amicus curiae typically refers to what in some other jurisdictions is known as an intervenor: a person or organization who requests to provide legal submissions so as to offer a relevant alternative or additional perspective regarding the matters in dispute. In the American courts, the amicus may be referred to as an amicus brief. In other jurisdictions, such as Canadian law, an amicus curiae is a lawyer who is asked by the court to provide legal submissions regarding issues that would otherwise not be aired properly, often because one or both of the parties is not represented by counsel. R v Kahsai, 2023 SCC 20.
In international courts, legal submissions by intervenors are called amicus curiae observations.
Starting in the 9th century, 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, 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.
The situation most often noted in the press is when an interest group files a brief in a case before an appellate court in which it is not a litigant. Appellate cases are normally limited to the factual record and arguments coming from the lower court case under appeal; attorneys focus on the facts and arguments most favorable to their clients. Where a case may have broader implications, amicus curiae briefs are a way to articulate those concerns, so that the possibly broad legal or public policy implications of the court's anticipated decisions will not depend solely on the positions and arguments advanced by the parties directly involved in the case.
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 American Civil Liberties Union, the Landmark Legal Foundation, the Pacific Legal Foundation, the Electronic Frontier Foundation, the American Center for Law and Justice or the National Organization for the Reform of Marijuana Laws (NORML), frequently submit such briefs to advocate for or against a particular legal change or interpretation. If a decision could affect an entire industry, companies other than the litigants may wish to have their concerns heard. In the United States, federal courts often hear cases involving the constitutionality of state laws. Hence states may file briefs as amici curiae when their laws or interests are likely to be affected, as in the Supreme Court case McDonald v. Chicago, when thirty-two states under the aegis of Texas (and California independently) filed such briefs.
De facto amici curiae who do not file briefs may present in the print media and social media academic perspectives on the case. For example, if the law gives deference to a history of legislation of a certain topic, a historian may choose to evaluate the claim from their specialized expertise. Economists, statisticians, sociologists, etc. may choose to do the same. Newspaper editorials, , and other opinion pieces arguably have the capability to influence Supreme Court decisions as de facto amici curiae. They are not, however, technically considered amici curiae, as they do not submit materials to the Court, do not need to ask for leave, and have no guarantee that they will be read.
The Supreme Court has seen a steady increase of amicus in its proceedings. In 2019-2020 97% included these filings with the sharpest increase coming after 1966 and only a few interventions in the earlier decades.Farber, Shai. The Amicus Curiae Phenomenon : Theory, Causes and the Significance of Third Party Interventions.
Retrieved 22 February 2025.
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 motion for leave) or mutual consent of the parties is generally required. Allowing an amicus curiae to present oral argument is considered "extraordinary".FRAP 29. The court can also appoint its own amicus curiae if neither party supports the decision of the lower court, which it has done at least 44 times.
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.
The first amicus curiae to appear before the Supreme Court was Henry Clay, in , although he “did not prevail.”
Canadian courts may also appoint amici in situations in which a party is represented by counsel, but issues emerge in a highly specialized or technical area of the law, on which the judge wants submissions from a lawyer with special expertise in that area. For example, in R. v. Warren, 2022 ONSC 542, the judge appointed amicus to provide detailed submissions on the intersection between constitutional rights and prison law, explaining why this was normally outside the ken even of experienced criminal defence counsel.
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.
The role commonly described as amicus curiae in the United States is known as an "intervener" in Canada.
The first WTO case to comprehensively examine the admissibility of amicus curiae briefs was US – Shrimp.Panel Report, United States – Import Prohibition on Certain Shrimp and Shrimp Products, WT/DS58/R/Corr.1 (3 November 1998) The case concerned a ban by the US on imports of all shrimp and shrimp products not caught with turtle excluder devices. The panel at first instance rejected the two amicus curiae briefs that were submitted by environmental groups, on the basis they were not expressly solicited by the panel under Article 13 of the Dispute Settlement Understanding of the WTO.Panel Report, United States – Import Prohibition on Certain Shrimp and Shrimp Products, WT/DS58/R/Corr.1 (3 November 1998), 7.8 This was overturned by the Appellate Body who held a panel had authority to accept, consider or reject briefs under Articles 12 and 13 of the Dispute Settlement Understanding regardless of whether they were expressly solicited.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
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.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) The Panel at first instance affirmed the position in the US – Shrimp case and accepted two amicus curiae briefs that were submitted.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 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.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 This was deemed as the source of legal authority to accept such briefs by an Appellate Body.
The next significant case to deal with amicus curiae briefs was EC – Asbestos, where the French government banned domestically produced and imported asbestos products.Panel Report, European Community – Measures Affecting Asbestos and Products Containing Asbestos, WTO Doc WT/DS135/R (18 September 2000). Of the five amicus curiae briefs received by the Panel, only two that were submitted by the European Community, were accepted.Panel Report, European Community – Measures Affecting Asbestos and Products Containing Asbestos, WTO Doc WT/DS135/R (18 September 2000), 8.12. 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.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. Of the 11 briefs submitted, the Appellate Body accepted none on the basis they failed to comply with these additional procedures.
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