Searching
the
docket
in
Epic
Games
v.
Google
is
a
lot
like
using
Google
these
days:
everything
you
want
is
buried
under
Google-sponsored
crap.
At
least
that’s
the
argument
advanced
in
a
new
amicus
brief
from
Court
Accountability
Action,
a
nonpartisan
judicial
anti-corruption
organization,
filed
on
behalf
of
Professor
Paul
Collins
Jr.,
Professor
of
Legal
Studies
and
Political
Science
at
UMass-Amherst.
The
organization
argues
that
many
of
the
amici
cluttering
the
docket
in
the
Ninth
Circuit’s
ongoing
antitrust
case
aren’t
so
much
friends
of
the
court
as
friends
of
Google.
And
paid
for
it.
Yes,
yes,
an
amicus
brief
to
complain
about
amicus
briefs.
But
the
extent
of
Google’s
“Amicus
Machine,”
as
the
brief
dubs
it,
is
really
something.
Additional
amici
have
recently
entered
business
relationships
with
or
received
financial
support
from
Google’s
“Founders
Fund.”
All
told,
of
the
eighteen
merits-stage
amicus
briefs
filed
in
support
of
in
this
appeal,
sixteen
include
amici
with
documented
financial
ties
to
Google.
Wow,
16
out
of
18.
There’s
a
googol-to-one
chance
that’s
a
coincidence.
And
that’s
not
even
the
most
extreme
example
involving
Google.
In
the
recent
Section
230
case
before
the
Supreme
Court,
the
brief
notes
that
the
nonprofit
Tech
Transparency
Project
“found
that
44
parties
that
signed
amicus
briefs
in
support
of
Google’s
position
in
the
Supreme
Court
case
[were]
funded
by
or
linked
to
Google.”
I
find
amicus
briefs
largely
a
waste
of
time.
There
are
exceptions.
If
the
government
takes
the
time
to
file
as
a
friend
of
the
court,
it’s
worth
noting.
And
there’s
a
cottage
industry
for
amicus
briefs
advancing
unhinged
alternative
history
that
real
litigants
are
too
embarrassed
to
touch
but
Alito
and
Thomas
are
happy
to
parrot.
But
generally
speaking,
they’re
fundraising
artifacts
created
to
impress
donors
and
end
up
in
the
judge’s
trash
can.
However,
if
a
party
can
coordinate
with
a
number
of
related
entities,
not
just
to
avoid
duplicative
arguments,
but
to
divvy
up
the
arguments
in
the
case
across
multiple
briefs,
they
can
circumvent
page-limitation
rules
and
craft
the
litigation
equivalent
of
an
Ancient
Aliens
circle
jerk
where
every
crank
points
at
each
other’s
conclusion
and
calls
it
confirmation.
It
also
opens
the
door
to
introducing
assertions
of
fact
that
Google
can
cite
later
“that
were
untested
during
the
adversary
process
below.”
Troublingly,
it’s
a
well-oiled
machine
at
the
highest
levels:
These
repeat
players
share
resources,
recruit
“elite”
counsel,
deploy
“amicus
whisperers”
and
“wranglers,”
and
tailor
factual
and
legal
narratives
for
judges
and
justices.
The
result
is
dockets
filled
with
meticulously
prepared
outside
input,
often
packaged
as
objective
expertise
but
strategically
designed
by
the
litigants
to
influence
outcomes.
This
networked
process
ensures
that
certain
well-funded
viewpoints,
data,
and
policy
arguments
are
presented
in
a
compelling,
rehearsed
chorus.
Though
the
federal
appellate
rules
encourage
coordination
among
litigants
and
their
amici
“to
the
extent
that
it
helps
to
avoid
duplicative
arguments,”
this
highly
orchestrated
influence
apparatus
goes
well
beyond
avoiding
duplication.
And
while
you
can’t
necessarily
control
for
ideological
fellow
travelers,
something
could
be
done
about
folks
with
financial
ties:
Yet
the
current
federal
rules
governing
disclosure
of
amicus
funding
allow
parties
to
evade
disclosure
of
their
financial
connections
to
amici.
Proposed
changes
to
Rule
29
intended
to
address
these
deficiencies
are
pending
before
the
Judicial
Conference
of
the
United
States.
How
do
they
get
around
current
rules
requiring
financial
disclosure?
As
the
brief
explains,
a
party-in-interest
can
donate
to
the
general
operating
fund
of
the
amicus
and
if
the
filing
is
prepared
out
of
those
resources
rather
than
a
direct
payment
for
the
brief,
companies
take
the
position
that
the
rules
don’t
require
disclosure.
That
said,
the
rules
do
require
an
amicus
filing
to
secure
either
consent
from
all
parties
or
leave
of
the
court.
In
this
case,
Epic
asked
these
amici
to
provide
the
level
of
disclosure
contemplated
by
the
proposed
new
rules.
It
was
not
well-received.
The
vast
majority
of
amici
supporting
Google—sixteen
out
of
eighteen
briefs—declined
to
make
these
disclosures
and
instead
sought
leave
of
the
Court.
Several
raised
objections
to
Epic’s
requested
disclosures,
including
on
the
grounds
that
the
disclosures
would
exceed
the
requirements
of
Rule
29,
that
Epic’s
conditions
were
“impossible
to
satisfy,”
and
that
the
amicus
“maintains
the
confidentiality
of
its
membership.”
The
brief
notes
that
Google
doesn’t
even
try
to
hide
the
fact
that
it’s
a
member
of
the
U.S.
Chamber
of
Commerce,
but
that,
when
asked
to
disclose
this
fact
in
this
case,
the
Chamber
refused
saying
that
it
“maintains
the
confidentiality
of
its
membership.”
And
while
there’s
faux
nobility
in
citing
a
constitutional
right
to
make
anonymous
donations,
these
groups
don’t
have
to
intervene
in
their
members’
cases.
The
whole
point
of
an
amicus
is
that
they
aren’t
obligated
to
write
anything
at
all.
They’re
the
answer
to
the
question
no
one
asked.
If
they’re
so
concerned
about
protecting
their
members
from
scrutiny,
maybe
don’t
file
an
amicus
brief.
And
maybe
these
amici
aren’t
just
third-party
contractors
for
Google.
But
that’s
something
the
court
should
be
able
to
evaluate
with
the
benefit
of
complete
transparency.
Though
these
groups
likely
protest
too
much
because
there’s
a
business
model
to
collect
“member”
fees
to
circumvent
reporting
requirements
and
then
hide
the
direct
relationship
behind
“confidentiality.”
There’s
a
sad
irony
in
Google’s
involvement
in
this
practice.
The
search
engine
that
took
over
the
internet
began
its
life
as
the
unfortunately
named
BackRub
and
the
design
philosophy
that
the
best
way
to
get
to
the
truth
is
to
look
backward
at
who’s
hyping
up
the
page.
As
opposed
to
counting
how
many
times
the
website
shoved
key
terms
into
its
copy,
Google
decided
the
value
was
in
scouring
the
backlinks
to
figure
out
where
the
traffic
comes
from.
Google
understood
the
value
of
transparency
at
one
point.
(Amicus
brief
provided
on
the
next
page…)
Joe
Patrice is
a
senior
editor
at
Above
the
Law
and
co-host
of
Thinking
Like
A
Lawyer.
Feel
free
to email
any
tips,
questions,
or
comments.
Follow
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if
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Joe
also
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Managing
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