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“Secondary Authority Revisited”

On April 22, 2011 by Schnader

Bruce Merenstein authored a post for The Legal Intelligencer Blog titled “Secondary Authority Revisited,” which was published on April 22.

In 2002, then-3rd U.S. Circuit Court of Appeals Judge (and now U.S. Supreme Court Justice) Samuel Alito authored a single-judge opinion granting a motion for leave to file an amicus curiae brief. In explaining why he was granting the motion in Neonatology Associates, P.A. v. Commissioner, Alito noted that “some amicus briefs collect background or factual references that merit judicial notice,” and some amici “are entities with particular expertise not possessed by any party to the case.”

These observations comport with the historical basis of the amicus brief, which has its origins in the “Brandeis brief,” a brief focusing on non-legal data and extra-record statistical information (though the original Brandeis brief, in the 1908 case of Muller v. Oregon, was actually a brief for the state of Oregon, a party to the action, and not an amicus).

Yet, in a recent Pennsylvania Superior Court decision, the court declined to rely on an amicus brief specifically because “the information contained in the amicus brief was not provided to the trial court for consideration.” This article examines that case, Commonwealth v. Brown. 

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