On June 4, 2024 the U.S. Judicial Conference’s Committee on Rules of Practice and Procedure decided to solicit public comment on proposed amendments to Federal Rule of Appellate Procedure 29 concerning the filing of amicus curiae briefs in federal courts of appeals. The amendments in part would require all court of appeals amicus briefs to be accompanied by a motion for leave to file. A Law360 article that I wrote in April 2024 discusses why Requiring Leave To File Amicus Briefs Is A Bad Idea. In a Law360 article published today, I am quoted as follows:
The proposal would create uncertainty that may deter preparation of amicus briefs that otherwise would facilitate appellate decision-making. At a time when the federal judicial system needs to be more, not less, transparent, requiring a motion for leave is an inexplicable step backwards.
I plan to monitor developments on this proposal and submit comments and/or testimony in opposiiton.
Here is the text of my LinkedIn post regarding the proposal:
A BAD IDEA!! — On June 4 the U.S. Judicial Conference’s Committee on Rules of Practice and Procedure decided to solicit public comment on a proposed appellate rules amendment that would require all federal court of appeals amicus briefs to be accompanied by a motion for leave to file — even if all parties consent.
At a time when the federal judicial system needs to be more, not less, transparent, requiring a motion for leave is an inexplicable step backwards. It would burden judges with having to decide – based on vague criteria – whether a proposed amicus brief is “helpful” or “useful.” Even though almost all court of appeals litigants currently consent to the filing of amicus briefs regardless of which side a brief supports, the proposed amendment would encourage submission of oppositions to motions for leave. This in turn would create uncertainty that may deter preparation of amicus briefs that otherwise would facilitate appellate decision-making and give a voice to nonparties on legal issues important to their members and supporters.
Most nonprofit organizations that frequently file amicus briefs, like the Atlantic Legal Foundation and The DRI Center for Law and Public Policy, take their roles as “friends of the court” very seriously. We devote many hours to researching and drafting amicus briefs that endeavor to “say something different” than the parties, and to the extent possible, other amici. There is no need for an appellate court to screen timely amicus briefs in advance of their being filed. This is why the Supreme Court now welcomes amicus briefs without even requiring the parties’ consent, much less a motion for leave. The same should be true in federal courts of appeals.
The proposed amendment should be rejected, and courts of appeals should continue to routinely accept amicus briefs and give each whatever weight it deserves.