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Tuesday, August 4, 2020

USC Gould law professors lend their expertise to national, international court decisions.

By Leslie Ridgeway

When they’re not sharing their knowledge in the classroom or through research, USC Gould School of Law professors bring their expertise to bear by filing amicus curiae briefs, informational documents with the potential to influence court decisions all over the world.

Hannah Garry's amicus brief was submitted before the Appeals Chamber of the ICC in The Hague during an appeals hearing filed by the prosecution and victims of alleged war crimes in Afghanistan.

Take professor Hannah Garry’s amicus brief, submitted before the Appeals Chamber of the International Criminal Court (ICC) in The Hague during an appeals hearing filed by the prosecution and victims of alleged war crimes in Afghanistan. Garry’s brief, submitted in early December 2019 together with former United Nations special rapporteurs, asserted that the pretrial chamber had incorrectly interpreted international criminal and human rights law when it rejected an investigation into war crimes allegations. The brief – Garry’s first – pointed to evidence that torture had been allegedly practiced by Afghan national security forces as well as the U.S. military and CIA since 2003. 

In early March, following the appeals hearing where Garry and other amici presented their briefs, the court reversed the prior decision, and the chief prosecutor opened an investigation. The news was carried internationally.

“It was an honor and privilege to participate in these important proceedings on behalf of victims who have waited far too long for justice,” says Garry, director of the International Human Rights Clinic at USC Gould.

Sam Erman submitted an amicus brief a federal case granting American Samoans the rights of citizenship.

Also making headlines was a federal case decision in early December 2019 granting American Samoans the rights of citizenship. Professor Sam Erman submitted an amicus brief in the case, which has been stayed pending appeal, but could have implications for residents of U.S. territories desiring citizenship rights, such as voting or choosing a law enforcement career. He was quoted in a New York Times story on the decision.

Erman’s research focuses on birthright citizenship and other guarantees granted by the 14th Amendment, making him an appropriate expert for this case. He has co-written approximately a dozen briefs for past cases.

“The kind of amicus briefs I do offer expertise from disciplines outside the law and then tell the court, maybe you’ll find our expertise helpful,” he says. “Most of my briefs speak to issues the courts have previously used history to address. When a new case arises, I provide information on what happened in the past that I think a judge might find helpful.”

For professor Jef Pearlman, director of the USC Intellectual Property and Technology Law Clinic (IPTLC), amicus briefs can serve dual purposes as teaching tools for students in the clinic. 

“We focus on not being duplicative and trying to communicate something that will matter to the court’s decision-making, whether it’s a legal avenue they haven’t thought of or facts about the impact [of the case] that hasn’t entered their thinking … making them aware of the consequences of the decision,” Pearlman says.

Pearlman and his students recently filed an amicus brief in the case Georgia v. Public.Recource.Org Inc., argued late last year before the Supreme Court of the United States. The IPTLC team was part of a group of amici including 39 law students, 24 practitioners and 38 legal educators and law professors. All have a personal interest in the case, brought by the State of Georgia against Public.Resource.Org Inc. for copyright infringement after the company scanned and posted the state’s legislative code, including the state’s official annotations. Access to government documents has ramifications for law students and legal scholars.

“It was so different from most other briefs because you’re trying gather the personal experiences and communicate the desires and beliefs of a broad group of people,” Pearlman says. “Whenever you’re writing a brief that will be signed on to by more than a couple of people you have to recognize this is a diverse group with different viewpoints, and give the court something they will find useful that communicates a single, shared viewpoint. That is the challenge and the power of it.”

SCOTUS was scheduled to decide on the case in summer 2020.

Hannah Garry says her experience as a practioner helped her write her brief.

Law professors and attorneys learn of opportunities to file amicus briefs through the news and relationships they have developed over the years. In Garry’s case, victims’ attorneys reached out to her and other professors of international law. She then worked with three professors who were former U.N. rapporteurs, investigators working on behalf of the U.N. The timeline was accelerated – Garry only had five days to work on the brief – and when the ICC gave the choice to submit a full brief in writing or present arguments in court in December, the decision was to present in court, but Garry was the only professor available. She made finishing touches to her presentation on the flight to The Netherlands.

“I loved it,” Garry says of her participation. “I’ve spent most of my working life as a practitioner working and writing for judges. It felt very comfortable for me. I know what’s helpful in these kinds of tribunals. The three other professors were happy that I was part of the team because they didn’t have the experience I had.”

Writing an amicus brief requires careful consideration of what the court will do with the information that is given to them, as well as the court’s expertise.

“The outside expert needs to be helpful, but isn’t the one deciding how the information is applied,” Erman says. “The aim is to be a broker between two disciplines. Legal historians are well positioned to straddle the worlds of history and law. Since the goal is to provide information that a judge will find useful, it’s important to have a sense of what the judge is struggling with.”

Jef Pearlman and his students recently filed an amicus brief in the case Georgia v. Public.Recource.Org Inc.

Pearlman has written several amicus briefs himself and supervised students in writing close to 30 briefs. Pearlman advises students to focus on making arguments that differ from existing information and creating a brief with plenty of appeal.

“The court gets a lot of amicus briefs, and there’s no point in writing it if no one will read it,” he says. “We want to do our best to make a brief that will be useful for the court. Ideally that means you want to intrigue the clerk with the table of contents. You never know how far up the chain you’ll get but the further you get the more impact you have.”

As a historian, Erman finds amicus briefs to be an interesting exception to the general rule that an attorney can’t get in front of a court without a dispute to settle.

“Amici are permitted to present evidence and make arguments even though they are neither parties nor witnesses,” he says. “It’s an unusual role. I think of it as interdisciplinary expertise sharing. It’s a moment where the law values outside expertise in legal deliberation.”

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