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Should the Rules Committees Have an Amicus Role?
104 Virginia Law Review 1 (2018)
  • Scott Dodson
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.
  • rulemaking,
  • advisory committee,
  • rules committee,
  • amicus,
  • amicus curiae,
  • supreme court,
  • twombly,
  • dukes,
  • wal-mart,
  • rule 23,
  • rule 8,
  • solicitor general
Publication Date
Citation Information
Scott Dodson, Should the Rules Committees Have an Amicus Role?, 104 Virginia Law Review 1 (2018)