Old vs New: Legal Entrepreneurship and Amicus Influence at the Supreme Court

• In Event: Writers on the Norm

Abstract

How can amici best maximize their influence and likelihood of success before the Supreme Court? Conventional wisdom suggests that influential amici should offer unique legal arguments that differ from the litigant’s brief. Yet research has challenged this commonly held belief, suggesting the most influential amici are those that reinforce their litigant’s primary argument. We believe that effective amicus briefs are dependent on their litigant’s strategy and a coordinated effort yields the best results. When a litigant offers an innovative, entrepreneurial legal argument, the litigant is more likely to win a justice's vote if the amici reinforce that argument. Yet, if a litigant provides the justices with a familiar, well-used argument, innovative amici arguments provide the justices with alternative legal approaches they can use for their opinions. To investigate this theory, we use an original dataset of amicus brief content and justices’ evaluations of both litigant and amicus briefs since 1979.

Authors

• Elizabeth Lane, North Carolina State University

• Jessica Schoenherr, University of South Carolina