Lobbying by Brief: Unveiling the Dominance of Amicus Lobbying in the Development of Business Law

This Article uncovers the pervasive and significant impact of business law amicus lobbying, a strategic tactic whereby lobby groups have commandeered the amicus curiae filing process in state courts to shape business law according to their interests. This Article makes three primary contributions to the literature. First, it presents the only comprehensive dataset of amicus curiae filings in business law cases. This hand-collected dataset encompasses nearly all business law amicus curiae filings from 2005 to 2022 in the key jurisdictions of New York, California, Delaware, Texas, and Nevada. Second, it reveals a striking empirical finding: lobby groups account for 67% of all amicus curiae filings in the dataset, with a high rate of success in persuading courts to adopt their positions. Finally, the Article provides a normative assessment of amicus lobbying in business law and proposes policy recommendations designed to ensure a more balanced representation of stakeholder interests. By shedding light on this understudied phenomenon, this Article aims to stimulate critical discourse on the intersection of lobbying, judicial decisionmaking, and business law formation. It offers valuable insights for scholars, practitioners, and policymakers engaged in the ongoing debate over the appropriate role and influence of interest groups in shaping legal doctrine.