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DOUBLESPEAK

The amicus brief is the new press release

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Reuters/Stephane Mahe
Just saying.
  • Ephrat Livni
By Ephrat Livni

Senior reporter, law & politics, DC.

Published This article is more than 2 years old.

Amicus curiae briefs from interested outside parties—the Latin words mean “friends of the court”—inform appellate judges about what’s at stake in a case. But they also serve another, more subtle purpose, working as a public relations tool for corporations.

On March 3, for example, 53 companies signed onto an amicus brief filed by the Human Rights Campaign in the US Supreme Court case Gloucester County School Board v. Gavin Grimm, supporting a transgender student’s challenge to his school’s gender-conforming bathroom rule as violating federal law.

The 53 corporations together have over 1.3 million employees and generate more than $600 billion in revenue in industries ranging from tech to insurance to cosmetics. In the brief, they argue diversity is good for business and discrimination conflicts with their LGBTQ-friendly corporate policies, harming people and profits. ”These companies are sending a powerful message to transgender children and their families that America’s leading businesses have their backs,” Human Rights Campaign president Chad Griffin explained in a statement.

In other words, the corporations used the brief like a press release, stating positions not only to inform the court but to influence public perception. State and federal courts allow amicus advocacy, but it’s most common in Supreme Court cases.

That is relatively new. In the first century of American high-court cases, amicus briefs were rare, and from 1900-1950 were filed in only about 10% of cases, according to a comprehensive review of amicus advocacy in the Supreme Court published in the University of Pennsylvania Law Review. “This pattern has now completely reversed,” the article notes. By 2000, one or more amicus briefs was filed in 85% of US Supreme Court cases. Though most judges and lawyers are “mildly supportive” of these briefs, the review notes, critics say the filings tax precious court resources, and that amici usually aren’t really friends of the court but self-interested groups lobbying the judiciary.

Seventh Circuit Court of Appeals judge Richard Posner argues that their utility is limited and the motivations behind them often suspect, writing that the “filing of an amicus brief is often an attempt to inject interest group politics into the federal appeals process.”

Indeed, in its guidance to lawyers on the appropriate approach to amicus filings, the American Bar Association warned lawyers who write these briefs on behalf of corporations and organizations against appearing biased, noting, “Although an amicus acts as an advocate, an amicus brief is most effective if not obviously compelled by self-interest, but rather drafted to assist the court from the amicus’ special perspective.”

But companies aren’t just speaking to courts with these filings—they’re relating to the public in this way because perception influences profits, particularly in an age of social media engagement, when it matters that they are considered good and kind and right.

For example, on Feb. 5, nearly 100 companies signed onto an amicus brief opposing an executive order banning travel from seven Muslim-majority nations. The filing states that the order “inflicts significant harm on American business, innovation, and growth” and “makes it more difficult and expensive for US companies to recruit, hire, and retain some of the world’s best employees.”

With this brief, which was widely reported in the media, the companies also told the world where they stand on the wildly controversial ban, associating their brands with justice for the underdog. Like when individuals wear a safety pin to show support for minorities, it’s a kind of corporate virtue signaling.

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