72 Am. U. L. Rev. 1871 (2023).

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Abstract

Amicus curiae briefs are being submitted at historically high levels by a range of individuals and entities, and there is compelling evidence that these briefs are highly influential in judicial decision-making, including in the Supreme Court of the United States. Although amicus curiae briefs have been an ingrained aspect of the U.S. legal system for hundred-plus years, various legal scholars, researchers, commentators, and judges, including Supreme Court Justices, have raised concerns about their use, including that amicus curiae briefs contain redundant information and often function as advocacy tools. This Article addresses an aspect of amicus curiae briefs that has received little attention but that raises fundamental concerns—i.e., amicus curiae briefs often include expert information that has not been subject to the same procedural safeguards as expert evidence admitted at trial. Given the documented persuasiveness of amicus curiae briefs in judicial decision-making, the inclusion of unvetted and potentially inaccurate, misleading, or mischaracterized expert information is a significant concern. This Article: (a) discusses the historical development, governing rules, and current use and influence of amicus curiae briefs; (b) distinguishes between lay evidence and expert evidence, with a focus on the evidentiary rules that govern the admissibility of expert information; (c) describes how amicus curiae briefs bypass traditional admissibility standards for expert information; and (d) offers suggestions to regulate the use of amicus curiae briefs in an effort to prevent the submission of amicus curiae briefs in certain contexts, change how courts view amicus curiae briefs, and minimize the likelihood that amicus curiae briefs contain inaccurate or misleading expert information.

* David DeMatteo, JD, PhD, is a Professor of Law at the Thomas R. Kline School of Law at Drexel University, a Professor of Psychology in the Department of Psychological and Brain Sciences at Drexel University, and Director of Drexel University’s JD/PhD Program in Law and Psychology. Professor DeMatteo received a BA in Psychology (1995) from Rutgers University, an MA in Clinical Psychology (1999) from MCP Hahnemann University, a JD (2001) from Villanova University School of Law, and a PhD in Clinical Psychology (2002) from MCP Hahnemann University.

** Kellie Wiltsie, MS, JD, received a BS in Criminal Justice (2018) and a BS in National Security (2018) from the University of New Haven, an MS in Psychology (2022) from Drexel University, and a JD (2022) from the Thomas R. Kline School of Law at Drexel University. Ms. Wiltsie anticipates receiving a PhD in Clinical Psychology from Drexel University in June 2025.