Foreign States' Amicus Curiae Participation in U.S. Antitrust Cases. (December 2016)

• Record Type: Journal Article
• Authors: Martyniszyn, Marek
• Other Names: Gundlach Gregory T. guest-editor.; Moss Diana guest-editor.
• Is Part Of: Antitrust bulletin. Volume 61:Number 4(2016)
• Page Start: 611
• Page End: 642
• Publication Date: 2016-12
• Subjects: antitrust -- competition law -- amicus curiae -- deference -- extraterritorial jurisdiction -- foreign commerce; Antitrust law -- United States -- Periodicals; Restraint of trade -- United States -- Periodicals; 343.73072105
• DOI: 10.1177/0003603X16677782
• Languages: English
• ISSNs: 0003-603X

Abstract

Foreign states' amicus curiae briefs submitted before the U.S. courts are a special type of pleading. This article analyzes such submissions made in U.S. antitrust cases during the period 1978 to 2015, identifying which foreign nations used amicus briefs to present their views and what sort of issues attracted their attention. This piece examines also the issue of deference due to such filings, arguing that while foreign states' submissions should be treated respectfully, they do not warrant a dispositive effect. Furthermore, this article outlines the practice of filing, explaining the shift from diplomatic correspondence towards amicus curiae submissions and the creation of a niche market of authoring them. It also indicates general trends in relation to stages of filings and the degree of their prevalence. Some broader comments are offered on the functions of foreign nations' amicus filings and their contribution to the ongoing development of competition law and policy internationally.