The Foreign Amici Dilemma

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Brigham Young University Law Review


The primary goal of this article is to go beyond the "rule of deference" theory and explore how and why the Court routinely rejects or ignores the interpretations offered by foreigners when their views conflict with those of the executive. By exposing the imbalance and unfairness of the Court's approach, perhaps this article will open the door for remedial measures. This article does not provide an exhaustive historical analysis of Supreme Court response to amici efforts, but rather sets out several historical spotlights which illuminate the futility of foreign amici. This illumination is accomplished by exploring three different types of amici "picketing": (1) purely domestic, (2) domestic-foreign, and (3) purely foreign. The term "amici picketing" refers both to formal brief submission as well as extra-judicial activities intended to influence the Court.

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