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72 Yale L.J. 694 (1962-1963)
The Amicus Curiae Brief: From Friendship to Advocacy

handle is hein.journals/ylr72 and id is 728 raw text is: THE AMICUS CURIAE BRIEF: FROM FRIENDSHIP TO ADVOCACY SAMUEL KRISLOVt THE pretense by the lawyer that all precedents are, in Holmes' phrase, born free and equal all too often produces a curious portrait of a static legal uni- verse where instruments and decisions alike avoid both decay and develop- ment. Yet, scholars 1 have demonstrated many times over that imaginative util- ization of the historical approach can produce insights which have been con- cealed by a fallacious assumption of homogeneity. One device that, when not altogether ignored, has been thought of primarily in this antihistorical vein is the amicus curiae brief. Its delusive innocuousness, its seemingly static function and terminology, taken together with the offhand manner of its usual use in court, have in combination forestalled intensive schol- arly study. Inasmuch as the device was apparently known in Roman law - and was an early instrument of the common law, the assumption has been that it has remained functionally unchanged as long as the term has remained constant. Yet, the Supreme Court's first promulgation of a written rule on the subject of such briefs in 1937 followed by two modifications of this newly codified pro- vision within a span of twenty years belies the assumption of permanence. Quietly but unmistakably, such change demonstrates the transition that has occurred and continues to occur in the use of the brief. THE Amicus CURIAE AT COMMON LAW The early use of the device is still preserved in the standard definitions, and may be found today in such sources as Corpus Juris Secundum. As Abbott's Dictionary of Terms and Phrases describes it, the amicus curiae is: A friend of the court. A term applied to a bystander, who without having an interest in the cause, of his own knowledge makes suggestion on a point of law or of fact for the information of the presiding judge. tAssociate Professor, Department of Political Science, Michigan State University. The author Wishes to acknowledge the assistance of the Michigan State All-University Re- search Fund, and the granting of released time for the undertaking of the project of which this is a part. Portions of this article will appear in Festschrift in honor of A. T. Mason (Dietze ed.). 1. For a discussion of lawyers' history, see the entertaining pages in Twiss, LAWYERIS AND T E CONSTITUTION 104-47 (1942). For a brilliant use of the genetic method, see Me- Ihvain, Some Illustrations of the Influence of Unchanged Names for Changing Ihstilu- tLiots, in INTERPRETATIONS OF MODERN LEGAL PHILOSOPHIES 484 (Sayre ed. 1947). 2. See I BouviEs LAw DI TIoNARY 188 (Rawle's 3d ed. 1914) (under definition of amicus curiae). 3. See Harper & Etherington, Lobbyists Before the Court, 101 U. PA. L. lnv. 1172 (1953), probably the path-finding article on this topic, and Wiener, The Supreme Court's New Rules, 68 HARv. L. REV. 20 (1954).

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