Antitrust Conversation

Competition Policy and Antitrust

Article Snapshot


Stephen Calkins


Antitrust Law Journal, Vol. 68, No. 3, 2001


This article celebrates the benefits offered by the filing of amicus briefs in antitrust and trade regulation cases.

Policy Relevance

Particularly for policy makers and governmental agencies, amicus briefing allows an important method of access to the court system. Decisions can be influenced and mistakes can be corrected by offering briefing on cases that the interested parties are not personally involved in.

Main Points

  • Amicus Curiae, literally meaning friend of the court, is a brief filed in a court case by an interested party who is not one of the litigants or parties in the case. This type of briefing has become increasingly more common in recent years, particularly in Supreme Court cases.
  • Amicus briefs are of particular use in antitrust and trade regulation cases. The realm of antitrust is a small legal community, and the involvement of important entities, often governmental agencies, in cases to which they may not be a party are often helpful.
  • One way that amicus briefs can stand out is when the party filing the brief goes against their expected position. This happens when the briefing is known to favor one side of the case, which is often the case when the government is drafting the brief, but then decides to go against that position either based on the facts of the case or in order to institute new policy.
  • Another, more subtle, way that amicus briefs can be important is in who has decided not to file a brief. Some players in the antitrust world, such as the Federal Trade Commission and other government agencies, have such an important interest in the outcome of specific antitrust cases that the failure to brief the issue for the court stands out as important, one way or the other.
  • Non-party briefing can also benefit the court by ensuring that thorough legal research has been provided to the court. Amicus briefs are often filed by parties who are very knowledgeable about the subject at hand and can provide the courts thorough research when the parties have failed to do so.
  • Amicus briefs can also be used to point out when the court has made a serious mistake. Briefing parties can then brief the Supreme Court, pointing out the error and recommending that the case be taken up in order to correct the mistake.
  • Finally, the most glamorous way an amicus brief can contribute is by outlining a new analytical construct for resolving the case which is subsequently adopted by the court. While this is often the goal and hope of entities filing briefs, only rarely do courts adopt an entire construct offered by an amicus brief.


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