The Amicus Alternative

The Amicus Alternative

Intervention makes an outsider a party, and Rule 24 builds two routes to it. On timely motion, the court must permit intervention by anyone who meets the criteria of Rule 24(a), and it may permit intervention by anyone who meets the criteria for permissive intervention.¹ A person who fails on both routes, or who never moves, is not necessarily shut out of the case. In many cases the court will let that person take part as an amicus curiae, a "friend of the court" who is not a party but offers the court information and argument.²

An amicus usually speaks through briefs and, on occasion, through oral argument, and an amicus does not hold the status of a party.³ That difference is the one that matters in practice. Leave to intervene makes the applicant a party. Leave to file as an amicus lets the applicant be heard and nothing more.

The amicus option also enters the analysis of intervention of right. Rule 24(a)(2) requires an applicant who claims an interest relating to the property or transaction in suit to show that disposing of the action may as a practical matter impair or impede its ability to protect that interest, unless existing parties adequately represent it.⁴ On impairment, the question is whether, absent intervention, the suit will foreclose the applicant's ability to protect its interests. Courts therefore look, among other things, at whether other proceedings and forums are open to the applicant and at whether it can make its position heard simply by filing an amicus brief.⁵ The second inquiry is the amicus alternative at work. An applicant who needs only to be heard on the merits has a harder time claiming that the suit will impair its ability to protect its interest.

The older cases on permissive intervention show the same reasoning at smaller scale. Courts had allowed permissive intervention even when the intervenor had little more interest than avoiding a precedent that might someday come back to haunt it. The courts were more doubtful in those cases, though, and on occasion said that the applicant could protect itself sufficiently by appearing as amicus curiae. The broadened scope of intervention of right may now reach some of these situations if the applicant's interest is not adequately represented.⁶

A brief does not answer every applicant's need. Take the applicants who sought to intervene in a challenge to a university's affirmative action programs. The reasoning in the source is that, had they been kept out and the programs struck down, they would probably have sued to compel the university to continue the programs. That probability is a good reason to bring them into the first suit, which will resolve the issues and bind both the original parties and the intervenors.⁷ For applicants in that position, intervention puts them inside the suit whose judgment settles the matter, and the likelihood of a second suit weighs in favor of letting them in.

A bar-exam answer that rejects an applicant under Rule 24 should test the amicus option before it closes the door, by asking what the applicant needs from the case. An applicant who wants only to put its view of the law before the court may be told to file a brief, and the availability of that brief counts against a showing of impairment. An applicant who would otherwise have to bring a second suit to protect its interest is better treated as an intervenor.