Ryan v. Commodity Futures Trading Com'n

Decision Date16 September 1997
Docket NumberNo. 97-2120,97-2120
Citation125 F.3d 1062
PartiesJohn H. RYAN, Petitioner, v. COMMODITY FUTURES TRADING COMMISSION, Respondent.
CourtU.S. Court of Appeals — Seventh Circuit

Gordon B. Nash, Jr. (submitted), Scott M. Murray, Gardner, Carton & Douglas, Chicago, IL, for Petitioner.

Gracemary Rizzo, Elisse B. Walker, Commodity Futures Trading Commission, Office of the General Counsel, Washington, DC, Dennis M. Robb, Commodity Futures Trading Commission, Chicago, IL, for Respondent.

POSNER, Chief Judge, in chambers.

On August 4, the Chicago Board of Trade moved under Fed. R.App. P. 29 for leave to file a brief amicus curiae in support of the petitioner in this case, who is challenging a disciplinary order of the Commodity Futures Trading Commission. The motion was referred to me as motions judge and on August 25 I denied the motion without a statement of reasons, precipitating a further motion by the Board of Trade, this time asking me to explain myself--which I am happy to do.

The tendency of many judges of this court, including myself, has been to grant motions for leave to file amicus curiae briefs without careful consideration of "the reasons why a brief of an amicus curiae is desirable," although the rule makes this a required part of the motion. After 16 years of reading amicus curiae briefs the vast majority of which have not assisted the judges, I have decided that it would be good to scrutinize these motions in a more careful, indeed a fish-eyed, fashion.

The vast majority of amicus curiae briefs are filed by allies of litigants and duplicate the arguments made in the litigants' briefs, in effect merely extending the length of the litigant's brief. Such amicus briefs should not be allowed. They are an abuse. The term "amicus curiae" means friend of the court, not friend of a party. United States v. Michigan, 940 F.2d 143, 164-65 (6th Cir.1991). We are beyond the original meaning now; an adversary role of an amicus curiae has become accepted. Id. at 165. But there are, or at least there should be, limits. Cf. New England Patriots Football Club, Inc. v. University of Colorado, 592 F.2d 1196, 1198 n. 3 (1st Cir.1979). An amicus brief should normally be allowed when a party is not represented competently or is not represented at all, when the amicus has an interest in some other case that may be affected by the decision in the present case (though not enough affected to entitle the amicus to intervene and become a party in the present case), or when 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. See, e.g., Miller-Wohl Co. v. Commissioner of Labor & Industry, 694 F.2d 203 (9th Cir.1982) (per curiam). Otherwise, leave to file an amicus curiae brief should be denied. Northern Securities Co. v. United States, 191 U.S. 555, 556, 24 S.Ct. 119, 119, 48 L.Ed. 299 (1903) (Chief Justice Fuller, in chambers); American College of Obstetricians & Gynecologists v. Thornburgh, 699 F.2d 644 (3d Cir.1983) (per curiam); Rucker v. Great Scott Supermarkets, 528 F.2d 393 n. 2 (6th Cir.1976); Strasser v. Doorley, 432 F.2d 567, 569 (1st Cir.1970); United States v. Gotti, 755 F.Supp. 1157 (E.D.N.Y.1991); Fluor Corp. v. United States, 35 Fed. Cl. 284 (1996). The Chicago Board of Trade's amicus brief (attached to its motion for leave to file) falls into the forbidden category. The petitioner argues that he should not have been punished by the CFTC, because he has been rehabilitated as shown by the Board of Trade's decision to reinstate him. The amicus brief echoes this argument,...

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