The U.S. Judicial Conference’s Advisory Committee on Appellate Rules has proposed amendments to Federal Rule of Appellate Procedure 29 that would hinder, rather than facilitate, the filing of amicus curiae (“friend of the court”) briefs in federal courts of appeals.
Currently, Rule 29(a) permits organizations such as ALF to file a merits-stage amicus brief in a federal court of appeals if all parties consent to its filing, or alternatively, with the court’s permission. The proposed amendments, however, would eliminate filing with consent, and instead, require that every court of appeals amicus brief be accompanied by a motion for leave to file that discusses, among other things, “the reason . . . the brief is helpful.”
The Judicial Conference’s Committee on Rules of Practice and Procedure is soliciting public comments on the proposed amendments.
On behalf of the Atlantic Legal Foundation, I have prepared and submitted comments urging the Judicial Conference to reject the proposed motion-for-leave requirement. ALF’s comments explain that requiring a motion for leave for every amicus brief would unncessarily burden the courts, encourage unwarranted objections by opposing parties, and create uncertainty that may deter preparation and submission of worthwhile amicus briefs.
ALF contends that if Rule 29 is to be amended at all, it should be to adopt the Supreme Court’s enlightened approach of allowing timely, rules-compliant amicus briefs to be filed without having to obtain the court’s permission or even the parties’ consent.
For more on this subject, read my Law360 essay, Requiring Leave To File Amicus Briefs Is A Bad Idea.