My colleague Scott Dodson, one of the country’s leading civil procedure scholars, has written a fascinating new article urging a litigation role for the rules committees that draft federal procedural rules.
Professor Dodson’s article, “Should the Rules Committees Have an Amicus Role?,” appears in the Virginia Law Review. The article argues that the rules committees could improve judicial decisionmaking in rule-interpretation cases by informing the Supreme Court of their views through an amicus practice. The strong form of the amicus practice, Professor Dodson argues, could entail authority for the rules committees to independently file their own amicus brief. A weak form would entail rule-committee consultation with the Solicitor General when the Solicitor General files an amicus brief. Either way, Professor Dodson argues, an amicus role for the rules committees could help prevent serious judicial mistakes.
In recent years, the Supreme Court has in fact upended received understandings of key civil procedure rules. In the Twombly and Iqbal decisions, the Supreme Court reinterpreted the familiar Rule 8 pleading standard, making it considerably more difficult for claimants in federal court to get past the pleading stage of litigation. Similarly, in Wal-Mart Stores, Inc. v. Dukes, the Court held that Rule 23’s “commonality” requirement for class certification requires more than just a common issue of law or fact among class members (as most had assumed). Under Dukes, class certification now requires that some question “central to the validity of each one of the claims” be “capable of classwide resolution”—a much higher bar for certification.
The Advisory Committee on Civil Rules held a wealth of knowledge about Rules 8 and 23 that could have aided the Court in these cases—knowledge not only about the rule’s drafting history and intended meaning, but also about their empirical effects and proposals to change them. The Committee, however, had no way to present its views to the Court. Professor Dodson’s proposal would change that. If his idea takes hold, in either strong or weak form, the key payoff could be more informed and accurate interpretation of procedural rules in future cases.
Professor Dodson anticipates and answers various legal or practical objections that skeptics might raise. Would allowing the committees to litigate be constitutional? Why are other sources of information inadequate substitutes for the committees’ perspective? How would the rules committees interact with the Solicitor General? For answers to these questions and more, check out the full article.