Should the Rules Committees Have an Amicus Role?

Abstract

Despite its formal status as promulgator of federal-court rules of practice and procedure, the Supreme Court is a suboptimal rule interpreter, as recent groundbreaking but flawed rules decisions illustrate. Scholars have proposed abstention mechanisms to constrain the Court in certain rule-interpretation contexts, but these mechanisms disable the Court from performing its core adjudicatory functions of dispute resolution and law interpretation. This article urges a different solution: bring the rulemakers to the Court. It argues that the Rules Committees — those bodies primarily responsible for studying the rules and drafting rule amendments — should take up a modest amicus practice in rules cases to offer the Court information that may improve its decisionmaking in rules cases. The article explores the possible forms of such a role and articulates guiding norms for its structure, timing, and content.

Keywords: twombly, iqbal, twiqbal, advisory committee, federal rules, standing committee, rules committee, solicitor general, amicus, dukes, rule 8, rule 23