LawProse Lesson #259: Friendly banter about “amicus.”

LawProse Lesson #259: Friendly banter about “amicus.”

The phrase amicus curiae and its shortened form amicus raise several tricky linguistic questions. How are they pluralized? How are the singular and plural forms pronounced? What’s the preferred singular possessive form? Should the phrase be italicized? How often is the translation friend of the court used by comparison? What’s the history of the phrase in English? Let’s take the last question first. Black’s Law Dictionary (10th ed. 2014) shows that the phrase amicus curiae first appeared in English-language contexts in the 17th century. Even so, the phrase wasn’t used much until the early 19th century, and it didn’t really become commonplace in legal contexts until the early 20th. In fact, from the late 1700s until about 1900, the English translation, friend of the court, was more frequent in print than amicus curiae. The Latinism took off in 1900 and grew precipitately in use after 1950. Even so, because it’s a Latinism, some publications avoid it in favor of friend of the court—a prime example being The Wall Street Journal. Not until the mid-1930s did the phrase amicus brief come into use, the word amicus being used attributively (as grammarians would put it). In fact, the full phrase amicus curiae brief was predominant in print from the 1930s until the early 1970s. Only in the mid-1970s did the less cumbersome form amicus brief become predominant in English-language books. Today, amicus brief outnumbers amicus curiae brief in print by a 2:1 ratio, and it outnumbers friend-of-the-court brief by a 29:1 ratio. The traditional and predominant pronunciation is /uh-MEE-kuhs KYOOR-ee-I/. But in certain parts of the country, the shortened amicus often takes on the pronunciation /AM-i-kuhs/. This is thought by some to be an error, but many cultured judges say it that way. Branding the variant pronunciation an error would be silly and pretentious. Many lawyers vacillate between the two in daily speech. But if the full phrase is used, then /uh-MEE-kuhs/ is certainly preferred, perhaps even de rigueur. How is the phrase pluralized? It’s amici curiae: only the first word changes its form. Black’s gives three pronunciations of the plural form: /uh-MEE-kee/, which is predominant today, /uh-MI-sI/ (rarely used today—and kind of weird), and /uh-MI-kI/ (really weird, but once common). The Italianate /uh-MEE-chee/ has no traditional standing. If you’re referring not to one amicus brief but two, are they amicus briefs or *amici briefs? (The asterisk, marking an incorrect form, should tip you off.) The first, naturally: amicus is being used adjectivally (or attributively). If you have two or more sick dogs at home, you have dog problems, not *dogs problems. What’s the possessive form of amicus? Is it amicus’s or amicus’? You can go either way. The traditional rule expressed by Strunk & White was to add ‘s even to a word ending in s—hence Charles’s. But there’s an exception for biblical and classical names (hence Jesus’ suffering and Aristophanes’ plays). As a classical word, amicus might fall within this exception (hence amicus’ filing). The Chicago Manual of Style (16th ed. 2010) swept away this exception (hence amicus’s filing—see § 7.18). The Associated Press Stylebook has always dropped the extra s (hence amicus’ filing). What have book publishers traditionally done? In modern print sources, the possessive amicus’ outnumbers amicus’s by a 10:1 ratio. One last friendly question: should the phrase amicus curiae be italicized in normal use? No. It’s italicized here only because it’s being referred to as a term under discussion. Just as we might italicize she in a discussion of the word (some would put it in quotes instead), we italicize this phrase when the words “the expression” or “the term” are expressly used or implied right before it. To check on italicization generally, consult the 10th edition of Black’s Law Dictionary. Latinisms that have been fully anglicized have their headwords in nonitalic type; those that are still considered foreignisms are italicized. Besides all these linguistic puzzles, there are substantive issues about when amici curiae are appropriate, and what their proper role is. For instruction on these points, see Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges 102–06 (2008).

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