PROFESSORS OF FOREIGN RELATIONS LAW'S NOTICE OF MOTION AND MOTION REQUESTING LEAVE TO FILE AMICI CURIAE BRIEF; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF; AND [PROPOSED] ORDER GRANTING MOTION FOR LEAVE TO FILE AMICI CURIAE BRIEF OF PROFESSORS OF FOREIGN RELATIONS LAW
WILLIAM B. SHUBB, District Judge.
NOTICE OF MOTION AND MOTION
The Professors of Foreign Relations Law identified in the appendix to the accompanying, proposed Amici Curiae brief respectfully move the Court for leave to file that Amici Curiae brief. The motion is based on this Notice, the Memorandum of Points and Authorities, and the Amici Curiae brief.
MEMORANDUM OF POINTS AND AUTHORITIES
This Court may permit a non-party to participate as amicus curiae if it has "unique information or perspective" on an issue raised by the parties, or if such an issue "has potential ramifications beyond the parties...." NGV Gaming Ltd. v. Upstream Point Molate, LLC, 355 F.Supp.2d 1061 (N.D. Cal. 2005).
The extent, if any, to which an amicus curiae should be permitted to participate in a pending action is solely within the broad discretion of the district court. Pennsylvania Environmental Defense Foundation v. Bellefonte Borough, 718 F.Supp. 431, 434 (M.D. Pa. 1989); United States v. Gotti, 775 F.Supp. 1157, 1158 (E.D.N.Y. 1991); Leigh v. Engle, 535 F.Supp. 418, 420 (N.D. Ill. 1982). A court may grant leave to appear as an amicus if the information offered is "timely and useful." Yip v. Pagano, 606 F.Supp. 1566, 1568 (D.N.J. 1985), aff'd mem., 782 F.2d 1033 (3rd Cir.), cert. denied, 476 U.S. 1141 (1986). Absent a statute to the contrary, no distinction is made between the request of a private person for leave to appear as amicus curiae, and one by an agent of the government. Leigh, 535 F. Supp. at 420.
An amicus, of course, is not a party to the litigation and participates only to assist the Court. Nevertheless, "by the nature of things an amicus is not normally impartial." Gotti, 755 F. Supp. at 1158 (quoting Strasser v. Doorley, 432 F.2d 567 (1st Cir. 1970)). While the partiality of an amicus is a factor to consider in deciding whether to allow participation, "there is no rule ... that amici must be totally disinterested." Concerned Area Residents for the Environment v. Southview Farm, 834 F.Supp. 1410, 1413 (W.D.N.Y. 1993) (quoting Hoptowit v Ray, 682 F.2d 1237, 1260 (9th Cir. 1982)).
District courts frequently welcome amicus briefs from non-parties concerning legal issues that have potential ramifications beyond the parties directly involved or if the amicus has "unique information or perspective that can help the court beyond the help that the lawyers for the parties are able to provide." Cobell v. Norton, 246 F.Supp.2d 59, 62 (D.D.C. 2003) (quoting Ryan v. Commodity Futures Trading Comm'n, 125 F.3d 1062, 1064 (7th Cir. 1997)).
The amici Professors of Foreign Relations Law identified individually in the appendix to the accompanying, proposed Amici Curiae brief teach and pursue scholarship at numerous law schools throughout the United States. Individually and collectively, they possess deep and longstanding expertise in the fields of foreign relations law and international law, and concerning agreements of various kinds between subnational governments. Specifically, they are familiar with numerous past agreements between U.S. states and other jurisdictions.
These amici can provide a unique perspective regarding the kinds of agreements that are properly deemed treaties under the Treaty Clause in Article I, section 10 of the U.S. Constitution. They can similarly analyze what kinds of agreements are properly deemed compacts requiring congressional approval under the Compact Clause in Article I, section 10 of the Constitution. Amici are also uniquely qualified to address how this Court's interpretation of the Compact Clause may affect the distribution of authority between Congress and the executive branch with respect to foreign relations.
Moreover, these amici seek to bring to the attention of this Court numerous past agreements between subnational governments in the United States and abroad that—like the California-Quebec agreement at issue in this case—do not rise to the status of a treaty or compact within the meaning of the Treaty and Compact Clauses of the Constitution.
Proposed amici respectfully suggest that the information and analysis contained in the attached Amici Curiae brief may assist the Court in its deliberations in this case.
WHEREFORE, the identified Professors of Foreign Relations Law move for an order granting leave to file their Amici Curiae brief.
ORDER
On February 14, 2020, Professors of Foreign Relations Law filed a "Motion for Leave to File Amici Curiae brief" in this case. After considering the Motion and responses by the parties, the Court grants the Motion, orders the Amici Curiae brief to be filed, and will consider that brief in its deliberation in this case.
IT IS SO ORDERED.
