The Judicial Conference Should Continue to Liberally Allow Amicus Briefs, a Critical Advocacy Tool

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EFF does a lot of things, including impact litigation, legislative lobbying, and technology development, all to fight for your civil liberties in the digital age. With litigation, we directly represent clients and also file “amicus” briefs in court cases.

An amicus brief, also called a “friend-of-the-court” brief, is when we don’t represent one of the parties on either side of the “v”—instead, we provide the court with a helpful outside perspective on the case, either on behalf of ourselves or other groups, that can help the court make its decision.

Amicus briefs are a core part of EFF’s legal work. Over the years, courts at all levels have extensively engaged with and cited our amicus briefs, showing that they value our thoughtful legal analysis, technical expertise, and public interest mission.

Unfortunately the Judicial Conference—the body that oversees the federal court system—has proposed changes to the rule governing amicus briefs (Federal Rule of Appellate Procedure 29) that would make it harder to file such briefs in the in the circuit courts.

EFF filed comments with the Judicial Conference sharing our thoughts on the proposed rule changes (a total of 407 comments were filed). Two proposed changes are particularly concerning.

First, amicus briefs would be “disfavored” if they address issues “already mentioned” by the parties. This language is extremely broad and may significantly reduce the amount and types of amicus briefs that are filed in the circuit courts. As we said in our comments:

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We often file amicus briefs that expand upon issues only briefly addressed by the parties, either because of lack of space given other issues that party counsel must also address on appeal, or a lack of deep expertise by party counsel on a specific issue that EFF specializes in. We see this of

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