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Abstract
The citizenry has the potential to make a direct and significant contribution to judicial policy making through information it provides during litigation. This dissertation will assess the citizenry's role as an information mobilizer by examining the information litigants and amici bring to courts via legal briefs and the sources of information judges draw upon when writing opinions.
The analysis of briefs and court opinions and interviews with judges and former clerks indicate that: (1) litigant briefs are important in that they provide useful starting points from which the opinion-writing process proceeds, and (2) amicus briefs are relatively unimportant sources of legal issues, authorities, and arguments used in court opinions (although amicus briefs are useful in other respects).
The findings regarding the importance of litigant briefs show that the citizenry plays an active role in the judicial policy-making process. Thus, a primary conclusion of this dissertation is that the citizen-initiated mobilization of information via litigant briefs is an important means of political participation that promotes the principle of self-government and acts to relieve tension between judicial policy making and democracy.
Regarding the importance of amici briefs, the findings cast doubt on amici participants' ability to achieve their goal of affecting directly the shape of judicial policy. In addition, the findings demonstrate that not only are success rates based on decisional results a crude measure of amicus impact, but that success rates are also a misleading measure. Clearly, winning isn't everything when it comes to amicus participation.
This dissertation furthers the work on legal mobilization by extending the discussion to encompass the concept of “information mobilization.” What scholars such as Donald Black and Frances Kahn Zemans say about various types of citizen-initiated contacts can also be said about citizen-initiated mobilization of information. The degree to which judges use information brought to the court by the citizenry, appearing as litigants and amici, makes a critical difference for the “link between the law and the people served or controlled by the law.” Citizens, by acting as information mobilizers, may become directly involved in the policy-making process, thereby making that process more democratic.
