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.
[1] 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 other jurisdictions, such as Canada, 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.
The role of an amicus was described by Lord Justice of Appeal Cyril Salmon in Allen v Sir Alfred McAlpine & Sons Ltd [1968] 2 QB 229 at p. 266 F-G: I had always understood that the role of an amicus curiae was to help the court by expounding the law impartially, or if one of the parties were unrepresented, by advancing the legal arguments on his behalf.The situation most often noted in the press is when an advocacy group files a brief in a case before an appellate court in which it is not a litigant.
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.
Newspaper editorials, blogs, and other opinion pieces arguably have the capability to influence Supreme Court decisions as de facto amici curiae.
[16] 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 of the United States has special rules for amicus curiae briefs sought to be filed in cases pending before it.
Supreme Court Rule 37 states, in part, such a brief should cover "relevant matter" not dealt with by the parties which "may be of considerable help".
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.
1 (1823), although he “did not prevail.”[24]: 360 In Canadian law, an amicus curiae is a lawyer, rather than an outside entity, who is asked by the Court to provide submissions in such a way as to make sure the legal issues affecting the interests of all parties are properly canvassed.
For example, in the case of a criminal trial, the amicus will have the responsibility to ensure that the accused's right to make full answer and defence is upheld.
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.
[29][30] The role of amicus curiae briefs in the World Trade Organization (WTO) dispute settlement system is controversial.
[34] 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.