Should the Rules Committees Have an Amicus Role?

61 Pages Posted: 13 Mar 2018 Last revised: 5 Apr 2018

Scott Dodson

University of California Hastings College of the Law

Date Written: April 8, 2017

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

Suggested Citation

Dodson, Scott, Should the Rules Committees Have an Amicus Role? (April 8, 2017). 104 Virginia Law Review 1 (2018); UC Hastings Research Paper No. 279. Available at SSRN: https://ssrn.com/abstract=2948837

Scott Dodson (Contact Author)

University of California Hastings College of the Law ( email )

200 McAllister Street
San Francisco, CA 94102
United States
415-581-8959 (Phone)

HOME PAGE: http://www.uchastings.edu/faculty/dodson/index.php

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