Seventh Circuit Judge Give Guidance on Standards for Amicus Briefs

In Prairie Rivers Network v.  Dynegy Midwest Generation, LLC, No. 18-3644 (7th Cir. Oct. 2, 2020) (Scudder, J., in chambers), a Seventh Circuit judge gives the bench guidance about what makes an effective amicus brief under Fed. R. App. P. 29.

Judge Scudder granted leave to three organizations – the Illinois Environmental Regulatory Group, the United States Chamber of Commerce, and the Washington Legal Foundation – to file as amicus curiae in a Clean Water Act case. While noting that “too many amicus briefs do not even pretend to offer value and instead merely repeat (literally or through conspicuous paraphrasing) a party’s position,” the judge enumerates a (non-exclusive) set of advantages that an amicus might provide the court:

“· Offering a different analytical approach to the legal issues before the court;

“· Highlighting factual, historical, or legal nuance glossed over by the parties;

“· Explaining the broader regulatory or commercial context in which a question comes to the court;

“· Providing practical perspectives on the consequences of potential outcomes;

“· Relaying views on legal questions by employing the tools of social science;

“· Supplying empirical data informing one or another question implicated by an appeal;

“· Conveying instruction on highly technical, scientific, or specialized subjects beyond the ken of most generalist federal judges;

“· Identifying how other jurisdictions—cities, states, or even foreign countries—have approached one or another aspect of a legal question or regulatory challenge.”

 The judge also notes that “shorter is often better, and … that it is more difficult to write a short, effective brief than a long, belabored brief.”

In this case, Judge Scudder observes, each of the three briefs “meet these standards. And that is so despite each brief containing some unnecessary and unwelcomed (though perhaps inevitable) repetition of [appellees]’s primary arguments …. Members of the court might find any or all of these additions helpful to deciding this appeal.”

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