# ADVISORY COMMITTEE ON APPELLATE RULES (2024) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/federal_court_rules%3Aus-national%3A96746c6a00a4b52d ## Record - **Collection:** Court rules - **Document type:** Court rule ## Text ADVISORY COMMITTEE ON APPELLATE RULES Hearing on Proposed Amendments to Rules 29, 32, Appendix on Length Limits, and Form 4 February 14, 2025 HEARING ON PROPOSED AMENDMENTS TO APPELLATE RULES FEBRUARY 14, 2025 ORDER OF WITNESSES Please note that all times are Eastern. Timing is approximate and subject to change. Each witness will have ten minutes – five minutes for formal testimony and five minutes to answer questions from committee members. Time Slot Name Organization Rule or Form Chair’s Welcome and Opening Remarks at 10:00 (ET) 1 10:05—10:15 Sai Fiat Fiendum Form 4 2 10:15—10:25 Prof. Judith Resnik Yale Law School Form 4 3 10:25—10:35 Avital Fried Yale Law School Form 4 4 10:35—10:45 Anna Selbrede Yale Law School Form 4 5 10:45—10:55 Julia Udell Yale Law School Form 4 6 10:55—11:05 Carter Phillips U.S. Chamber Litigation Center Rule 29 7 11:05—11:15 Alex Aronson Court Accountability Rule 29 8 11:15—11:25 Lisa Baird DRI Center for Law & Public Policy Amicus Committee Rule 29 Break from 11:25 to 11:35 (ET) (estimated) 9 11:35—11:45 Thomas Berry Cato Institute Rule 29 10 11:45—11:55 Molly Cain NAACP Legal Defense and Educational Fund Rule 29 11 11:55—12:05 Lawrence Ebner Atlantic Legal Foundation Rule 29 12 12:05—12:15 Doug Kantor NACS Advancing Convenience & Fuel Retailing Rule 29 13 12:15—12:25 Dana Livingston American Academy of Appellate Lawyers Rule 29 14 12:25—12:35 Seth Lucas The Heritage Foundation Rule 29 Appellate Rules Hearing on Proposed Amendments | February 14, 2025 Page 1 of 251 Chair and Reporter Information Items February 14, 2025 Page 2 Organization Rule or Form Time Slot Name 15 12:35—12:45 Tyler Martinez National Taxpayers Union Foundation Rule 29 16 12:45—12:55 Sharon McGowan Public Justice Rule 29 17 12:55—1:05 Patrick Moran NIFB Small Business Legal Center Rule 29 Break from 1:05 to 1:35 (ET) (estimated) 18 1:35—1:45 Jaime Santos Goodwin Proctor Rule 29 19 1:45—1:55 Stephen Skardon American Property Casualty Insurance Association Rule 29 20 1:55—2:05 Zack Smith The Heritage Foundation Rule 29 21 2:05—2:15 Gerson Smoger Smoger & Associates Rule 29 22 2:15—2:25 Tad Thomas American Association for Justice Rule 29 23 2:25—2:35 Larissa Whittingham Retail Litigation Center Rule 29 24 2:35—2:45 Kirsten Wolfford American Council of Life Insurers Rule 29 Final Questions & Closing Remarks at 2:45 (ET) (estimated) Appellate Rules Hearing on Proposed Amendments | February 14, 2025 Page 2 of 251 TAB 1 Appellate Rules Hearing on Proposed Amendments | February 14, 2025 Page 3 of 251 No written testimony outline or comment was submitted by the requested January 29, 2025 deadline. Appellate Rules Hearing on Proposed Amendments | February 14, 2025 Page 4 of 251 TABS 2-5 Appellate Rules Hearing on Proposed Amendments | February 14, 2025 Page 5 of 251 January 28, 2025 Advisory Committee on Appellate Rules Judicial Conference of the United States Via electronic submission Dear Committee Members: We are law professors and students, and we submit this comment in support of the proposed revision of Appellate Form 4, Affidavit Accompanying Motion for Permission to Appeal In Forma Pauperis.1 As explained, “Revised Form 4 simplifies the existing Form 4, reducing the existing form to two pages. It is designed not only to reduce the burden on individuals seeking IFP status but also to provide the information that courts of appeals need and use, while omitting unnecessary information.”2 We hope the Advisory Committee will approve the recommendation and forward it to the Standing Committee. Our views are informed by our research and that of many others. As is likely familiar, Professor Andrew Hammond has studied the forms used for in forma pauperis (IFP) applications in the federal district courts. In his article, Pleading Poverty in Federal Court, he documented the lack of uniformity in the forms that district courts use when individuals apply, pursuant to 28 U.S.C. § 1915, to proceed without prepayment of fees.3 As studies by the federal courts have documented, court staff and judges report spending considerable time on IFP applications. A 2005 survey of court staff reported that the respondents described apportioning five percent of their time on IFP matters and about thirty percent on initial merits screening in prisoner civil rights cases.4 The Federal Judicial Center in 2011 chronicled the difficulties in assisting pro se litigants and the array of activities in district courts aiming to assist litigants.5 By 2023, the judiciary dedicated $94 million to employ 471 clerks (termed “Pro se and death penalty” staff), of whom most “receive, prepare, and process civil complaints filed against the government by prisoners and other individuals without attorney representation.” 6 Additional research builds on data made available through Northwestern’s Systematic Content Analysis of Litigation Events (SCALES), which coded 2016 and 2017 federal court docket sheets. One essay (co-authored by some of us) is Lawyerless Litigants, Filing Fees, Transaction Costs, and the Federal Courts: Learning from SCALES, which sought to learn about the relationship between self-representation and requests to proceed IFP.7 In terms of outcomes of requests for IFP status, about forty percent of the cases for which SCALES had data, courts granted more than eighty percent of the IFP applications, whether filed by non-prisoners or prisoners.8 In addition to the time spent on assisting and responding to such applications, legal questions have arisen about the criteria for determining IFP eligibility. Thus, federal judges at the trial and appellate levels have dealt with litigation over eligibility. Further, given the obligations for Comment on Proposed Revision to Form 4, Federal Rules of Appellate Procedure January 28, 2025 Appellate Rules Hearing on Proposed Amendments | February 14, 2025 Page 6 of 251 prisoners granted IFP status to pay over time, court and prison staff time is also devoted to fulfilling those requirements. In short, contemporary practices impose costs on litigants who need to compile information, on judicial staff and judges who make decisions, and on institutions dealing with the financial interactions. Lowering the challenges and the need to invest time by simplifying forms— as is proposed for Rule 4 of the Appellate Rules—is an important step forward. The uniform, simplified approach would lessen the burdens of the current practice. The proposed revisions are also responsive to concerns that forms can be misleading and confusing.9 In 2022, the White House Legal Aid Interagency Roundtable published a report on “Access to Justice through Simplification.” The Roundtable collected feedback from more than “70 state and local legal aid and advocacy organizations,” including the recommendation to “simplify applications, forms, and notices.”10 Drawing on those materials, the Roundtable created a “Simplification Roadmap,” highlighting best practices for simplification and noting that “[b]ecause legal assistance is rare, a simplification approach is essential to both increase the accessibility of the legal system and to reduce its costs.”11 The roadmap includes strategies to “simplify government forms,” “eliminate unnecessary requirements” in forms or processes, and “use plain language.”12 Researchers at “justice labs,” based at Stanford and Harvard Law Schools, have also identified the impact of making forms accessible to people who are not lawyers so that they can provide the information courts need.13 A body of case law also discusses such challenges. For example, Judge Rosenbaum on the Eleventh Circuit identified two problems: first, that court forms may demand “too much” from litigants, and second, that litigants may not understand the consequences of the answers to questions “they are being asked.”14 Other judges, describing the communication challenges, have responded by including in their opinions paragraphs summarizing the outcomes—a “plain language summary”—to enable self-represented litigants to understand the import of decisions.15 The proposal to revise Form 4 fits within this agenda to “reduce the burden on individuals” while providing relevant information to the court for IFP determinations.16 In addition to supporting the proposal, we have a a few modest revisions to offer in furtherance of the goals for revision. To make it simple to see our suggestions, we set them forth in bold below. Question 1 currently states “What is your monthly take-home pay from work?” We recommend: “What is your monthly take-home pay, if any, from work?” Question 4 currently states “How much are your monthly costs for other necessary expenses (such as food, medical care, childcare, and transportation)?” We recommend: “How much are your monthly costs for other necessary expenses (such as food, medical care, childcare, old-age or other dependents’ needs, and transportation)?” Comment on Proposed Revision to Form 4, Federal Rules of Appellate Procedure January 28, 2025 Appellate Rules Hearing on Proposed Amendments | February 14, 2025 Page 7 of 251 Question 8 currently states: “Do you receive SNAP (Supplemental Nutrition Assistance Program), Medicaid, or SSI (Supplemental Security Income)? We suggest adding a short sentence to explain that some states have different names for the same programs. In Connecticut, for example, the name for Medicaid is HUSKY Health. 17 At the end of the question, we recommend adding: “The names of these programs vary in some states.” Our fourth suggestion addresses the placement of the sentence: “If there is anything else that you think explains your inability to pay the filing fees, feel free to explain below.” Our concern is that the sentence’s location after the paragraph on prisoners could lead some non-prisoners to believe the comments are not addressed to them and they are not to add additional explanations. To avoid that potential, we suggest rephrasing that sentence to read: “For all applicants, if there is anything else that you think explains your inability to pay the filing fees, please feel free to explain below. (Attach additional pages if necessary.).” In sum, we hope the Advisory Committee will approve these recommendations for submission to the Standing Committee. Doing so will, we also hope, be a model for clarifying and simplifying the IFP process throughout the federal courts. Thank you for your consideration of these comments. Some of us will testify on February 14, 2025, and we look forward to the opportunity to discuss these suggestions and respond to questions. Respectfully submitted, Avital Fried, Yale Law School ‘26 Myriam Gilles, Paul R. Verkuil Chair in Public Law Yeshiva University Cardozo School of Law Andrew Hammond, Associate Professor of Law, Indiana University Maurer School of Law Alexander A. Reinert, Max Freund Professor of Litigation & Advocacy Yeshiva University Cardozo School of Law Judith Resnik, Arthur Liman Professor of Law, Yale Law School Comment on Proposed Revision to Form 4, Federal Rules of Appellate Procedure January 28, 2025 Appellate Rules Hearing on Proposed Amendments | February 14, 2025 Page 8 of 251 Tanina Rostain, Agnes Williams Sesquicentennial Professor Justice Innovation, Georgetown Law Anna Selbrede, Yale Law School ‘26 Lauren Sudeall, David Daniels Allen Distinguished Chair of Law, Vanderbilt Law School Julia Udell, Yale Law School ‘26 1 We provide our institutional affiliation for identification purposes only; we speak only for ourselves. Memorandum from IFP Subcommittee to Advisory Committee on the Federal Rules of Appellate Procedure (February 29, 2024), https://www.uscourts.gov/sites/default/files/2024-0410_agenda_book_for_appellate_rules_meeting_final.pdf. 3 Andrew Hammond, Pleading Poverty in Federal Court, 128 YALE L.J. 1478 (2019). 4 NINTH CIR. JUD. COUNCIL TASK FORCE ON SELF-REPRESENTED LITIGANTS, FINAL REPORT 21 (Oct. 2005), https://cdn.ca9.uscourts.gov/datastore/judicial-council/publications/prose/FinalTaskForceReport.pdf. DONNA STIENSTRA, JARED BATAILLON & JASON A. CANTONE, FED. JUD. CTR., ASSISTANCE TO PRO SE LITIGANTS IN U.S. DISTRICT COURTS: A REPORT ON SURVEYS OF CLERKS OF COURT AND CHIEF JUDGES (2011), https://www.govinfo.gov/content/pkg/GOVPUB-JU7-PURL-gpo73052/pdf/GOVPUB-JU7-PURL-gpo73052.pdf). 6 ADMIN. OFF. OF THE U.S. CTS., APPENDIX 1 - COURT SUPPORT STAFFING app. 1.7 (2024), https://www.uscourts.gov/sites/default/files/fy_2025_appendix_01_court_support_staffing.pdf [hereinafter APPENDIX 1 - COURT SUPPORT STAFFING]; ADMIN. OFF. OF U.S. CTS., COURTS OF APPEALS, DISTRICT COURTS, AND OTHER JUDICIAL SERVICES: SALARIES AND EXPENSES 4.8 (2024), https://www.uscourts.gov/sites/default/files/section_04_salaries_and_expenses.pdf). The formula for staffing levels (nine cases for a full-time death penalty clerk) suggests that about 50 were focused on capital cases. APPENDIX 1 COURT SUPPORT STAFFING, supra, app. 1.7. In the Ninth Circuit, the “position of Pro Se Staff Attorney (PSSA) was sometimes referred to as Pro Se Law Clerk,” and “PSSAs track the cases, drafting IFP and screening orders.” Memorandum from Charles R. Pyle, Chair of Pro Se Litig. Comm., & James P. Donohue, Outgoing Chair of Pro Se Litig. Comm., to Ninth Cir. Judicial Council (Oct. 17, 2014), https://cdn.ca9.uscourts.gov/datastore/judicialcouncil/publications/prose/Pro_Se_Committee_Interim_Report_14.pdf. 7 Judith Resnik, Henry Wu, Jenn Dikler, David T. Wong, Romina Lilollari, Claire Stobb, Elizabeth Beling, Avital Fried, Anna Selbrede, Jack Sollows, Mikael Tessema & Julia Udell, Lawyerless Litigants, Filing Fees, Transaction Costs, and the Federal Courts: Learning from SCALES, 119 NW. UNIV. L. REV. 109 (2024). 8 Id. at 160. 9 Richard Zorza, who coordinated a Self-Represented Litigation Network, stated that “[a]lthough it is a minor simplification step, the plain language and forms movement has shown how small changes in the process can have a significant impact throughout the system. Improvements in data collection potentially result in smoother processes and less wasted time.” Richard Zorza, Some First Thoughts on Court Simplification: The Key to Civil Access and Justice Transformation, 61 DRAKE L. REV. 845, 864 (2013). See also Hammond, supra note 3, at 1503-05. 10 Access to Justice through Simplification: A Roadmap for People-Centered Simplification of Federal Government Forms, Processes, and Language, WHITE HOUSE LEGAL AID INTERAGENCY ROUNDTABLE 7 (2022), https://www.justice.gov/d9/2023-03/Legal%20Aid%20Interagency%20Roundtable%202022%20Report.pdf. 2 Comment on Proposed Revision to Form 4, Federal Rules of Appellate Procedure January 28, 2025 Appellate Rules Hearing on Proposed Amendments | February 14, 2025 Page 9 of 251 11 Id. at 9. Id. at 11. 13 See Filing Fairness Toolkit: Simplifying Court Filing for All, LEGAL DESIGN LAB & DEBORAH L. RHODE CTR. ON THE LEGAL PRO. (2023), https://filingfairnessproject.law.stanford.edu/wpcontent/uploads/2023/11/SLS_FilingFairnessProject_FF.pdf; see also Current Projects, ACCESS TO JUST. LAB, https://a2jlab.org/current-projects; Home, SELF-REPRESENTED LITIG. NETWORK, https://www.srln.org. 14 Wells v. Brown, 58 F.4th 1347, 1364 (11th Cir. 2023) (en banc) (Rosenbaum, J., joined by William Pryor, C.J., and Jill Pryor, J., concurring). 15 Serna v. Irvine, No. 22–cv–02998–WJM–MDB, 2023 WL 2261143 (D. Colo. Feb. 28, 2023); Vora v. Dionne, No. 22–cv–00572–CNS–MDB, 2023 WL 1784227 (D. Colo. Feb. 6, 2023); Muniz v. Thompas, No. 2:21-cv-1820TLN-AC (E.D. Cal. Mar. 23, 2023); Michael Karlik, Federal Judge in Colorado Springs Deploys New Tool for SelfRepresented Plaintiffs, COLO. POLS. (Feb. 2, 2023), https://www.coloradopolitics.com/courts/federal-judge-incolorado-springs-deploys-new-tool-for-self-represented-plaintiffs/article_daff024a-a30a-11ed-b3ce3bab7614cebd.html; Michael Karlik, Second Federal Judge in Colorado Adopts Plain English Summaries in Decisions, COLO. POLS. (Mar. 10, 2023), https://www.coloradopolitics.com/courts/second-federal-judge-in-coloradoadopts-plain-english-summaries-in-decisions/article_fdad5baa-bec3-11ed-bb31-4399aa8d9a99.html). 16 Proposed Amendments Published for Public Comment, U.S. CTS., https://www.uscourts.gov/rulespolicies/proposed-amendments-published-public-comment. 17 Medicaid By State: Alternative Names and Contact Information, AM. COUNCIL ON AGING (July 10, 2023), https://www.medicaidplanningassistance.org/state-medicaid-resources. 12 Comment on Proposed Revision to Form 4, Federal Rules of Appellate Procedure January 28, 2025 Appellate Rules Hearing on Proposed Amendments | February 14, 2025 Page 10 of 251 TAB 6 Appellate Rules Hearing on Proposed Amendments | February 14, 2025 Page 11 of 251 December 19, 2024 Honorable John D. Bates Chair, Committee on Rules of Practice and Procedure Judicial Conference of the United States One Columbus Circle Northeast Washington, District of Columbia 20544 Re: Request for Comments on Proposed Amendments to Rule 29 Dear Judge Bates: I write to express the views of the Chamber of Commerce of the United States of America on the proposed amendments to Rule 29 of the Federal Rules of Appellate Procedure, including: (i) the proposal to require amici to disclose whether a party has contributed 25% of an amicus organization’s total revenue in the past year; (ii) the proposal to require amici to disclose the identities of certain non-party associational members who contribute to the preparation of their own association’s amicus brief; (iii) the proposal to eliminate the option to file an amicus brief on consent during a court’s initial consideration of a case on the merits; and (iv) the proposal to bar supposedly “redundant” amicus briefs. The Committee should reconsider these proposals. As discussed below, Rule 29 already safeguards the integrity of the judicial process with respect to amicus briefs, and it does so in a manner that is consistent with the First Amendment. The contemplated disclosure amendments to Rule 29 are unnecessary, and they are not sufficiently tailored to avoid encroachment on core associational rights. The disclosure amendments would also discriminate against established membership organizations compared with ad hoc associations by requiring greater disclosure of established organizations’ members. That differential treatment, which itself raises First Amendment concerns, should be rejected. The proposals to eliminate the consent option and to reduce the number of amicus briefs filed are likewise misguided. Rule 29’s current framework champions judicial economy by permitting the parties to resolve most issues without the need for judicial intervention, while leaving courts free to ignore unhelpful or duplicative amicus briefs and to strike any that create recusal issues. Imposing additional hurdles pursues the wrong goal. It also will burden prospective amici, reduce the quality of amicus briefing, and add to courts’ workload by cluttering their dockets with unnecessary motions for leave to file. These amendments should also be rejected. 1615 H Street, NW | Washington, DC 20062-2000 | 202.463.5337 | chamberlitigation.com Appellate Rules Hearing on Proposed Amendments | February 14, 2025 Page 12 of 251 2 I. The Proposed Disclosure Amendments A. Rule 29 already protects the integrity of amicus briefing in a manner consistent with the First Amendment. As an initial matter, it is unclear why Rule 29 should be amended at all. As the Advisory Committee noted in its report to the Standing Committee on the Rules of Practice and Procedure, the Advisory Committee appointed a subcommittee to consider potential amendments to Rule 29 only “after learning of a bill introduced in Congress that would institute a registration and disclosure system for amici curiae like the one that applies to lobbyists,” and in anticipation of congressional inquiries regarding the “disclosure requirements for organizations that file amicus briefs.” Report of the Advisory Committee on Appellate Rules at 11 (revised Aug. 15, 2024) (appended to Preliminary Draft of Proposed Amendments) (“August Report”); see Letter from Sen. Sheldon Whitehouse & Rep. Henry C. Johnson to Hon. John D. Bates at 1, 6 (Feb. 23, 2021) (“Whitehouse Letter”) (encouraging the Standing Committee to “address the problem of inadequate funding disclosure requirements” in order to root out “anonymous judicial lobbying”). Those concerns rested on a fundamental misapprehension of the role and purpose of amicus briefing in the federal courts. Amicus briefing is not a form of lobbying, as the Advisory Committee has acknowledged. See August Report at 12 (“[A]micus briefs are significantly different from lobbying. Amicus briefs are filed with a court, available to the public, and the arguments made by amici can be rebutted by the parties. Lobbying activity, by definition, consists of non-public attempts to influence the legislative or executive branch.”). The influence of an amicus curiae is directly proportional to the persuasive value of the arguments presented in the briefs submitted by that amicus. The weight that courts afford to amicus briefs submitted by the ACLU, for instance, depends not on the individual identities of that organization’s members or donors, but on the strength of the arguments made in the brief. Indeed, the suggestion from some members of Congress that amicus organizations must disclose their members or donors to the public in order to shine a light on the “influence” of those “who seek to shape the law through the courts,” Whitehouse Letter at 2, would introduce the very appearance of improper judicial influence that these members of Congress seek to avoid. 1 If anything, anonymity of an association’s members confirms that an amicus brief submitted by that association will be accorded weight based on the strength of its arguments, rather than the identities or perceived influence of the association’s members. Compelled disclosure of an amicus’s members or donors threatens to undermine that system and create an appearance of judicial partiality where in truth there is none, either in appearance or in fact. The advisory committee notes that while “[s]ome have suggested that information about an amicus is unnecessary because the only thing that matters about an amicus brief is the merits of the legal arguments in that brief,” “courts do consider the identity and perspective of an amicus to be relevant” at times. August Report at 38. While the identity of an amicus organization itself, and in turn, the unique perspective that the organization may bring to the case may be relevant, the advisory committee cites no evidence suggesting that judges are more or less likely to rule for a particular position because of the specific identities of the organization’s members. 1 1615 H Street, NW | Washington, DC 20062-2000 | 202.463.5337 | chamberlitigation.com Appellate Rules Hearing on Proposed Amendments | February 14, 2025 Page 13 of 251 3 Calls for compelled disclosure of associational membership are also openly hostile to core First Amendment principles. There is a “vital relationship between [the] freedom to associate and privacy in one’s associations.” Americans for Prosperity Foundation v. Bonta, 594 U.S. 595, 606 (2021) (quoting NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 462 (1958)). Accordingly, the compelled disclosure of an association’s members inevitably exerts a “deterrent effect on the exercise of First Amendment rights.” Id. at 607 (plurality) (quoting Buckley v. Valeo, 424 U.S. 1, 65 (1976)). For this reason, the First Amendment requires at least “exacting scrutiny” of governmental regulations that compel the disclosure of an association’s membership. Id. at 607– 08; see also id. at 619 (Thomas, J., concurring in part and concurring in the judgment) (“strict scrutiny [applies] to laws that compel disclosure of protected First Amendment association”); id. at 623 (Alito, J., concurring in part and concurring in the judgment) (“I see no need to decide which standard should be applied here.”). Under the exacting scrutiny standard, “there must be ‘a substantial relation between the disclosure requirement and a sufficiently important governmental interest’” that “reflect[s] the seriousness of the actual burden on First Amendment rights.” Id. at 607 (plurality) (quoting Doe v. Reed, 561 U.S. 186, 196 (2010)). Furthermore, the form and degree of compulsion must be “narrowly tailored to the government’s asserted interest.” Id. As it stands—and has stood for years—Rule 29 appropriately conforms to those First Amendment principles. The disclosure requirements of Rule 29 address two concerns. First, they prevent parties from seeking to “circumvent page limits on the parties’ briefs” by ghostwriting or otherwise directing the arguments presented in amicus briefs. Fed. R. App. P. 29 advisory committee notes. Second, they “help judges to assess whether the amicus itself considers the [case] important enough to sustain the cost and effort of filing an amicus brief.” Id. In its current form, Rule 29 is narrowly tailored to address those concerns. Specifically, Rule 29 requires amici to submit a statement disclosing whether: (i) “a party’s counsel authored the brief in whole or in part;” (ii) “a party or a party’s counsel contributed money that was intended to fund preparing or submitting the brief;” and (iii) “a person—other than the amicus curiae, its members, or its counsel—contributed money that was intended to fund preparing or submitting the brief and, if so, identifies each such person.” Fed. R. App. P. 29(a)(4)(E). Those measures protect the integrity of amicus submissions by ensuring that amicus briefs genuinely reflect the views and interests of the amicus itself and are not simply supplemental party briefs. They do not broadly intrude on the privacy of the relationships between amicus organizations and their members, and thus do not deter amicus organizations or their members from submitting amicus briefs. B. The contemplated disclosure amendments raise serious First Amendment concerns. The disclosure amendments contemplated by the Advisory Committee reflect a subtle— but significant—departure from the principles that undergird the current disclosure mandates of Rule 29. To be sure, the amendments currently under discussion are not as radical as those previously proposed by certain members of Congress. See, e.g., S. 1411 § 2(a), 116th Cong. (2019) (requiring that every amicus organization filing three or more amicus briefs per year disclose the identity of any person contributing at least $100,000 or 3 percent of the organization’s revenues, and that such information be “made publicly available indefinitely” by the Administrative Office of the U.S. Courts). But they appear to share some of the same animating premises. As drafted, 1615 H Street, NW | Washington, DC 20062-2000 | 202.463.5337 | chamberlitigation.com Appellate Rules Hearing on Proposed Amendments | February 14, 2025 Page 14 of 251 4 the amendments go beyond the current objectives of Rule 29—designed to protect the integrity of amicus submissions—by more broadly compelling disclosure of associational relationships between an amicus and its members. Those new disclosure requirements threaten to infringe the associational rights of amicus organizations and their members. 1. Mandatory disclosure of the identities of significant contributors will inhibit the First Amendment rights of amicus organizations and their members. First, the amendments under consideration would compel disclosure of the relationships between an amicus and its members in situations where the members are parties to a case in which the amicus submits a brief, and where such parties (either singly or collectively) are significant contributors to the general operations of the amicus. Specifically, an amicus would be forced to disclose whether “a party, its counsel, or any combination of parties, their counsel, or both has, during the 12 months before the brief was filed, contributed or pledged to contribute an amount equal to 25% or more of the total revenue of the amicus curiae for its prior fiscal year.” August Report, Draft Proposal Rule 29(b)(4) (p. 35). And the amicus would further be required to disclose the identities of any such party or counsel. August Report, Draft Proposal Rule 29(c) (p. 35). These provisions are unnecessary, counterproductive, and threaten to have a chilling effect on amicus organizations. They are unnecessary because Rule 29 already mandates disclosure of instances where a party (including a party that is a member of the amicus organization) has directed or shaped the content of an amicus brief either by authoring it (in whole or in part) or by directly contributing money for the preparation of the brief. Fed. R. App. P. 29(a)(4)(E)(i)–(ii). In those instances, disclosure well serves the purpose of alerting the court to the possibility that the “amicus brief” is substantively a party brief. But that purpose is not served by mandating disclosure of a donor relationship between the party and the amicus anytime a combination of parties and counsel has contributed 25% or more of the general revenues of the amicus. There are instances in which an amicus organization that represents the interests of a particular industry or trade might have at least one large donor whose contributions account for over 25% of the organization’s annual revenues. In those instances, the amicus organization cannot fairly be said to represent only the interests of the large donor; after all, such an organization will have other members and donors that account for up to 75% of its yearly revenues and that care deeply about the issues before the court. Where the large donor is a party to an appeal, an industry or trade association should be able to appear as amicus on behalf of its own interests—and the interests of its non-party members—without fear that its filing will be discounted as the work of the party itself. The disclosure rule under consideration threatens to deter filings from amici in those cases, thereby reducing the ability of non-party associational members to speak up (through their existing associations) in appeals that affect them. This concern is especially acute with respect to appeals in which multiple participants in the same industry are named as parties, where the parties’ contributions to an industry association may very quickly add up to 25% of the annual revenues of the amicus. In those cases, the interests of an industry-association amicus speaking up in support of those parties are well known. It is not clear what transparency interest is served by requiring the amicus to disclose whether any of those specific parties has chosen to be a member of the association. At the same time, forcing an amicus 1615 H Street, NW | Washington, DC 20062-2000 | 202.463.5337 | chamberlitigation.com Appellate Rules Hearing on Proposed Amendments | February 14, 2025 Page 15 of 251 5 to disclose those financial ties at the front of its brief conveys the misleading impression that the brief is simply a vehicle for those parties to present additional arguments, diminishing the independent interests and contributions of the amicus and its non-party members. And this requirement would impose a significant accounting burden on amicus filers. Even where the parties’ contributions do not sum up to the 25% threshold, it will be unduly burdensome for amici to track contributions from numerous parties and their counsel to determine compliance with the rule, particularly in complex cases with many parties. 2. Mandatory disclosure of contributions for particular briefs from recent members of existing organizations is arbitrary, and does not withstand exacting scrutiny under the First Amendment. Second, the Advisory Committee proposes to mandate disclosure of any non-party— including an existing member of an amicus organization—“who contributed or pledged to contribute more than $100 intended to pay for preparing, drafting, or submitting [an amicus] brief,” unless the person “has been a member of the amicus for the prior 12 months.” August Report, Draft Proposal Rule 29(e) (p. 36) (emphasis added).2 Yet the contemplated amendment exempts newly formed amicus organizations from this disclosure requirement, providing that if “an amicus has existed for less than 12 months, an amicus brief need not disclose contributing members, but must disclose the date the amicus was created.” Id. This proposal would directly interfere with associational rights. Under Rule 29 as it is currently structured, an amicus is not required to disclose any contribution intended to fund a particular brief if that contribution comes from a member of the amicus organization that is not a party to the case. See Fed. R. App. P. 29(a)(4)(E)(ii)–(iii). There is no reason to depart from the existing “member exclusion” to the disclosure requirement. That sensible rule protects associational rights. Under the First Amendment, amicus organizations that collect supplemental funding from members to budget for a brief have every right to be heard on an equal basis. Any demand for the disclosure of the identities of members who make such contributions naturally imposes considerable burdens on the associational rights of those members. Such demands are justified in only one circumstance: where the member is a party to the case. See Fed. R. App. P. 29(a)(4)(E)(ii). Absent a member’s participation in a case as a party, there is no threat that a member’s contribution for the preparation of an amicus brief would serve an improper purpose. There is also no sound reason to single out new members for disclosure. The Advisory Committee’s basis for this singling out is that the rule would “effectively treat[ ]” a “new member making contributions earmarked for a particular brief … as a non-member” to “close” a purported “loophole.” August Report at 24. The idea seems to be that non-party nonmembers of an amicus organization could evade disclosure of their earmarked contributions in support of a particular 2 The previously proposed threshold was $1,000. See Report of the Advisory Committee on Appellate Rules, Draft Proposal Rule 29(d) (p. 8) (Dec. 6, 2023). It seems doubtful that organizations could efficiently “crowdfund” solely with contributions less than $100. Cf. Randall v. Sorrell, 548 U.S. 230, 249–53 (2006) (plurality) (holding $200 contribution limits “too low … to survive First Amendment scrutiny”). But regardless of the threshold, any disclosure requirement that does not include an exemption for members of an amicus organization would seriously infringe the First Amendment rights of associations and their members. 1615 H Street, NW | Washington, DC 20062-2000 | 202.463.5337 | chamberlitigation.com Appellate Rules Hearing on Proposed Amendments | February 14, 2025 Page 16 of 251 6 amicus brief by becoming members of the amicus organization. But the First Amendment affirmatively encourages the public to form private associations by shielding those associations from blunderbuss inquiries into the identities of their members. Thus, there would be no evasion or “loophole” in this circumstance; just individuals or entities joining private associations for their intended purpose. A new or “recent” member of a membership association has the same First Amendment rights as other members. Moreover, it is ultimately the membership organization that is the amicus presenting the views of all its members, no matter when they joined. Perhaps the concern is temporary membership—that is, where a non-party has become a member of the amicus organization solely for the purpose of making a contribution for an amicus brief while intending to withdraw from the amicus organization following submission of the brief. We are not aware of any evidence suggesting that there is a practical problem with temporary members. And even temporary associations are entitled to First Amendment protection so long as they reflect a “collective effort on behalf of shared goals,” and the First Amendment looks askance at “intrusion into the internal structure or affairs of an association.” Roberts v. U.S. Jaycees, 468 U.S. 609, 622–23 (1984). Some associations have members who come and go, or who periodically join and leave and re-join; others have members who remain for decades. And many have members whose membership lapses temporarily, sometimes as the result of an oversight or an internal delay, and who then re-join; associations and members should not be penalized for that reason. Policing the degree of associational commitment of an amicus organization’s individual members is not an appropriate task for Rule 29—regardless of whether an amicus organization has been around for decades or was newly formed. It is the act of association, not an organization’s pedigree, that garners First Amendment protection. Under the contemplated amendments, moreover, a longstanding amicus organization must disclose any earmarked contributions received by its newest members, but an entirely new amicus organization may avoid such disclosure and instead simply note its date of organization. See August Report, Draft Proposal Rule 29(e) (p. 36). Thus, an ad hoc association organized solely for the purpose of presenting a particular amicus brief in a particular case may shield the identities of all of its member-contributors from disclosure (no matter the size of their contributions), while a longstanding association must disclose the identity of any relatively new member that has made a contribution of more than $100 for the preparation of a particular amicus brief. This dichotomy makes little sense, indicating that the amendment is not narrowly tailored to achieve an important objective. For that reason, at least, the current proposal cannot survive even “exacting” judicial scrutiny. Americans for Prosperity Foundation, 594 U.S. at 608. The Chamber appreciates the Advisory Committee’s concern for the interests of newly formed amicus organizations and its concomitant interest in protecting “crowdfunding with small anonymous donations.” August Report at 11; see also Whitehouse Letter at 6–7 (expressing concern that existing amicus-disclosure rules disfavor such crowdfunded briefs). Just as debate in the public square is enriched by the proliferation of speech, the proliferation of amicus briefs submitted by new and diverse amicus organizations—including wholly ad hoc groups—promotes speech and can be a significant aid to judicial decisionmaking. But there is no reason why Rule 29 should discriminate against existing amicus organizations in favor of new or ad hoc organizations. Longstanding amici may bring greater institutional expertise and perspective to the presentation of legal issues on appeal, and their contributions should be encouraged on an equal basis. There is no sufficient reason for compelling greater levels of membership disclosure with 1615 H Street, NW | Washington, DC 20062-2000 | 202.463.5337 | chamberlitigation.com Appellate Rules Hearing on Proposed Amendments | February 14, 2025 Page 17 of 251 7 respect to such organizations than with respect to new or ad hoc amicus groups. The Committee should therefore retain the existing “member exclusion” in Rule 29— which does not mandate disclosure of the contributions of any members—even if the rule provides that earmarked contributions of non-members need not be disclosed if they are less than $100. This approach would protect the First Amendment rights of new and existing membership associations and their members on an equal footing while providing latitude for ad hoc amicus groups to collect contributions for anonymously crowdfunded briefs. II. The Proposed Motion Requirement A. Rule 29 promotes judicial economy and robust amicus participation. In its current form, Rule 29 requires counsel for prospective amici to obtain either leave of the court or consent of the parties. Fed. R. App. 29(a)(2). The option to file on consent gives counsel for both parties an opportunity to resolve any potential issues without unnecessarily involving the court. In most cases, experienced lawyers consent to amicus filings “to avoid burdening the Court with the need to rule on the motion.” Joseph D. Kearney & Thomas W. Merrill, The Influence of Amicus Curiae Briefs on the Supreme Court, 148 U. Pa. L. Rev. 743, 762 (2000); see Neonatology Assocs., P.A. v. Comm’r, 293 F.3d 128, 132 n.1 (3d Cir. 2002) (Alito, J., in chambers) (“the same generally holds true in the courts of appeals as well”). But lawyers can and do object when circumstances warrant. For example, the Justice Department advises that although the United States will, in general, “freely grant its consent to the filing of amicus briefs,” its attorneys “may condition consent on compliance with” local rules and standing orders “relating to briefing schedules, page lengths, or similar matters.” U.S. Dep’t of Justice, Justice Manual § 2-2.125 (2018). Similarly, private counsel may justifiably withhold consent where amicus participation would unduly delay or prejudice the adjudication of the original parties’ rights. The practice of freely granting consent in most cases reflects confidence among attorneys that the federal judiciary will reach the right result when all views are fully aired. As Justice Holmes explained long ago, it is “the theory of our Constitution” that “the best test of truth is the power of the thought to get itself accepted in the competition of the market.” Abrams v. United States, 250 U.S. 616, 630 (1919) (dissenting opinion); see also United States v. Alvarez, 567 U.S. 709, 729 (2012) (plurality) (“Truth needs neither handcuffs nor a badge for its vindication.”); Whitney v. California, 274 U.S. 357, 377 (1927) (Brandeis, J., concurring) (“the remedy to be applied is more speech, not enforced silence”). While the Advisory Committee contends that “a would-be amicus does not have a [First Amendment] right to be heard in court” and frets that “the norm among counsel … to uniformly consent” results in too little “constraint,” August Report at 20, 26, the reason most counsel freely consent absent exceptional circumstances is their confidence “that the opposition need not be silenced because truth will ultimately triumph,” FEC v. HallTyner Election Campaign Comm., 678 F.2d 416, 419 n.7 (2d Cir. 1982); see id. (“Whoever knew truth put to the worse, in a free and open encounter?” (quoting J. Milton, Areopagitica 78, 126 (J.C. Suffolk ed. 1968) (alteration omitted)). Consistent with that view, experienced attorneys recognize that the long-term interests of their clients are best served when all are heard so that erroneous views can be confronted, not suppressed. 1615 H Street, NW | Washington, DC 20062-2000 | 202.463.5337 | chamberlitigation.com Appellate Rules Hearing on Proposed Amendments | February 14, 2025 Page 18 of 251 8 As explained below, the proposals to amend Rule 29 would sacrifice judicial economy for little if any offsetting benefit. Far from failing to provide a “meaningful constraint on amicus briefs,” August Report at 26, the current Rule 29 is an effective screen that allows the parties to resolve most issues consistent with the value that all should be heard, and to involve the courts only when necessary. B. The contemplated amendments to eliminate filing on consent and to bar “redundant” filings will undermine judicial economy. The proposed amendments to Rule 29 would eliminate the common and accepted practice of filing amicus briefs on the consent of the parties and would instead require a motion for leave to file. August Report, Draft Proposal Rule 29(a)(2) (pp. 28–29). The proposed amendments would further require such motions to justify how “the brief is helpful and why it serves the purpose set forth in Rule 29(a)(2),” and would “disfavor[ ]” any brief that is “redundant with another amicus brief” or that does not bring to the court’s attention “relevant matter not already mentioned by the parties.” August Report, Draft Proposal Rule 29(a)(3)(B) & 29(a)(2) (pp. 28– 29). These amendments are unnecessary and counterproductive. 1. Eliminating the consent option would move contrary to the Supreme Court’s direction and would disserve efficient resolution of amicus participation issues. To begin with, the proposed amendments start from the false premise that Rule 29 should do more to “filter” the number of amicus briefs that are filed. August Report at 25, 40 (note to Draft Proposal Rule 29). While there was a brief time “[i]n the late 1940s and early 1950s” when the Supreme Court “sought to curtail the filing of amicus curiae briefs,” Kearney & Merrill, supra, 148 U. Pa. L. Rev. at 763, the Supreme Court has for the last seven-and-a-half decades taken an increasingly permissive approach toward amicus filings, id. at 763–65. Perhaps unsurprisingly, the Supreme Court’s development of its open-door policy toward amici coincided with its rising protectiveness for free expression in general. Compare id. at 764 (“After the early 1960s, the attitude of the Court toward amicus filings in argued cases gradually became one of laissez-faire.”) with Nadine Strossen, The Paradox of Free Speech in the Digital World, 61 Washburn L.J. 1, 1 (2021) (“The United States Supreme Court has continued a speech-protective trend dating back to the 1960s”). Today, the Supreme Court “freely allow[s] the filing of amicus briefs.” August Report at 25. It does not require a motion or consent. See Supreme Court Rules 37.2, 37.3. The Supreme Court’s permissive approach to amicus briefs recognizes that they are often useful. Courts at all levels of the federal judicial system regularly “credit” and cite “helpful amicus brief[s].” Stratton v. Bentley Univ., 113 F.4th 25, 43 n.12 (1st Cir. 2024); see also, e.g., Prairie Rivers Network v. Dynegy Midwest Generation, LLC, 976 F.3d 761, 764 (7th Cir. 2020) (describing the Chamber’s amicus brief as “helpful” and “insight[ful]”). The Supreme Court has reminded lower courts that amici may rightly raise jurisdictional or other threshold issues overlooked by the parties, John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 133 (2008) (“The Government’s brief said nothing about the statute of limitations, but an amicus brief called the issue to the court’s attention.”); accord United States v. Baltazar-Sebastian, 990 F.3d 939, 943–44 (5th Cir. 2021) (“our jurisdiction is challenged not by [the defendant], but by an amicus curiae”), as well as “sharp[en] adversarial presentation of the issues” that are raised by the parties, 1615 H Street, NW | Washington, DC 20062-2000 | 202.463.5337 | chamberlitigation.com Appellate Rules Hearing on Proposed Amendments | February 14, 2025 Page 19 of 251 9 United States v. Windsor, 570 U.S. 744, 760–61 (2013). Some of the Justices have highlighted the particular usefulness of amicus briefs in cases that involve technical, scientific, or historical issues. See, e.g., Stephen G. Breyer, The Interdependence of Science and Law, 82 Judicature 24, 26 (1998). Another Justice has noted that amicus briefs may “collect background or factual references that merit judicial notice,” “argue points deemed too far-reaching for emphasis by a party intent on winning a particular case,” or “explain the impact a potential holding might have on an industry or other group.” Neonatology Assocs., P.A., 293 F.3d at 132 (Alito, J., in chambers). And every current Justice regularly cites amicus briefs in his or her opinions. In one recent term, the Justices cited amicus briefs in 65 percent of argued cases with amicus participation and signed majority opinions. See Anthony J. Franze & R. Reeves Anderson, Amicus Curiae at the Supreme Court: Last Term and the Decade in Review, The National Law Journal (Nov. 18, 2020), https://tinyurl.com/jswf2435. The Supreme Court has even found that assessing the sheer number of amicus briefs filed in a particular case can be useful. In Americans for Prosperity Foundation v. Bonta, 594 U.S. 595 (2021), for example, the Court considered a First Amendment overbreadth challenge to a California statute that required charitable organizations to disclose the identity of their major donors to the state Attorney General’s Office. The Court found that “[t]he gravity of the privacy concerns in th[at] context [was] further underscored by the filings of hundreds of organizations as amici curiae in support of the petitioners,” observing that “these organizations span[ned] the ideological spectrum, and indeed the full range of human endeavors.” Id. at 617. The Court reasoned that this high number of amicus briefs helped show the illegitimate sweep of the California statute, explaining that “[t]he deterrent effect feared by these organizations is real and pervasive, even if their concerns are not shared by every single charity operating or raising funds in California.” Id. The Advisory Committee acknowledges that its proposal to curtail amicus filing is out-ofstep with Supreme Court practice, but it justifies that departure primarily based on perceived recusal issues in the courts of appeals. See August Report at 25–26. Respectfully, the contention that a motion requirement is necessary to solve those recusal issues is mistaken. Rule 29 already provides that a court may “prohibit the filing of or may strike an amicus brief that would result in a judge’s disqualification”—whether or not the amicus organization filed on consent or submitted a motion for leave to the court. Fed. R. App. P. 29(a)(2).3 And courts routinely reject such filings, see, e.g., Order filed July 9, 2024, TikTok, Inc. v. Garland, D.C. Cir. No. 24-1113 (ordering “stricken” amicus brief filed on consent that “would result in recusal of a member of the panel that has been assigned to the case”); Hydro Res., Inc. v. U.S. EPA, 608 F.3d 1131, 1143 n.7 (10th Cir. 2010) (“We deny … leave to file an amicus brief only because granting the motion would cause one or more members of this court to recuse themselves from the matter.”), with some having formalized the practice in their local procedures, see, e.g., D.C. Circuit Handbook of Practice and Internal Procedures § IX.A.4 (amended March 16, 2021) (“the Court will not accept an amicus brief where it would result in the recusal of a member of the panel”); 2nd Cir. R. 29.1 (“The court ordinarily will deny leave to file an amicus brief when … the filing of the brief might cause the 3 This language, added by amendment in 2018, reflects the longstanding practice of the federal appellate courts. See 16AA Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3975 (5th ed. June 2024 update). 1615 H Street, NW | Washington, DC 20062-2000 | 202.463.5337 | chamberlitigation.com Appellate Rules Hearing on Proposed Amendments | February 14, 2025 Page 20 of 251 10 recusal of the judge.”).4 In addition to being unnecessary to address recusal, a motions requirement will place substantial burdens on the courts, the parties, and amici. Indeed, the “burdens upon litigants and the Court” was one of the reasons the Supreme Court eliminated both its motion requirement and its consent requirement. See Revisions to Rules of the Supreme Court at 9 (Dec. 5, 2022) (Clerk’s Comment to Rule 37), https://tinyurl.com/4sah4jyd. The Advisory Committee heard testimony that in the courts of appeals as many as 90% of current amicus filings rely on consent. Whatever the precise amount, the Committee acknowledges that under the current Rule 29 most participation is resolved through consent. August Report at 26. If that option is eliminated, then courts would be called upon to adjudicate leave in every case, and for every amicus brief, rather than only instances in which a party objects. The result would be a dramatic increase in the number of motions for leave that amici must file, that parties must respond to, and that courts must resolve. Timing considerations further amplify this increased burden on the courts and litigants. Motions for leave require a decision “at a relatively early stage of the appeal” when it is “often difficult … to tell with any accuracy if a proposed amicus filing will be helpful.” Neonatology Assocs., 293 F.3d at 132 (Alito, J., in chambers). “Furthermore, such a motion may be assigned to a judge or panel of judges who will not decide the merits of the appeal, and therefore the judge or judges who must rule on the motion must attempt to determine, not whether the proposed amicus brief would be helpful to them, but whether it might be helpful to others who may view the case differently.” Id. at 133. Such decisions are difficult to make without carefully studying all the merits briefs and issues, so, as then-Judge Alito explained, the better course is simply to accept amicus filings: “If an amicus brief that turns out to be unhelpful is filed, the merits panel, after studying the case, will often be able to make that determination without much trouble and can then simply disregard the amicus brief.” Id.; accord Voices for Choices v. Illinois Bell Tel. Co., 339 F.3d 542, 544 (7th Cir. 2003) (Posner, J., in chambers) (explaining “many courts … would prefer to ignore amicus curiae briefs than to screen them”). And if motions for leave are decided before a merits panel is assigned, then the motions panel will plainly not be able to assess recusal in deciding whether to grant leave to file. 2. Enforcing the redundancy provision would place a significant administrative burden on amicus filers and courts. The administrative burdens discussed above would be further compounded by the Advisory Committee’s proposal to “disfavor[ ]” amicus briefs that are thought to be “redundant with another amicus brief” or with a “matter” raised by “the parties.” See August Report, Draft Proposal Rule 29(a)(2) & 29(a)(3)(B) (28–29). Again, it will be time-consuming for judges to examine amicus motions and proposed briefs independent of the case, and that is doubly true if they must determine It was raised at the Advisory Committee’s October 2024 meeting that the Ninth Circuit initially screens for recusals prior to making panel assignments, opening the door to potential gamesmanship by amici. That possibility appears remote: a party seeking to avoid a particular judge would need to guess what amicus might cause the judge to recuse and then convince that amicus to file—before knowing whether that judge would even have been assigned. To the extent this risk is plausible, a more direct solution would be to simply strike an amicus brief that could trigger a recusal (before or after panel assignment). 4 1615 H Street, NW | Washington, DC 20062-2000 | 202.463.5337 | chamberlitigation.com Appellate Rules Hearing on Proposed Amendments | February 14, 2025 Page 21 of 251 11 whether a prospective argument is wholly (or substantially) redundant or sheds some new light on a problem. After all, party presentation principles deter amici from raising entirely new issues, see, e.g., Russo v. Bryn Mawr Tr. Co., 2024 WL 3738643, at *6 n.4 (3d Cir. Aug. 9, 2024), so there will be at least some repetition as amici show how the themes they advance are applicable to the parties’ dispute. For seasoned advocates, this balance is often as much art as science. Requiring judges to spend their time reading motions with explanations about how a prospective amici’s arguments fit within the framework of the parties’ arguments without overlapping too much—when judges could just read the briefs instead—is likely to be a waste of already limited judicial resources. See Neonatology Associates, 293 F.3d at 133 (Alito, J. in chambers) (“the time required for skeptical scrutiny of proposed amicus briefs may equal, if not exceed, the time that would have been needed to study the briefs at the merits stage if leave had been granted”). This proposal presents an even more significant administrative burden on courts with respect to redundancy among amici. In certain cases, large numbers of amicus organizations will submit briefs that may discuss similar issues. Judges will therefore not only have to assess whether an amicus brief is redundant with a party brief, but with the collection of other amicus briefs submitted for consideration. Focusing on redundancy will deprive courts of a diverse range of perspectives, despite the Supreme Court’s recognition that amicus briefs from “organizations span[ning] the ideological spectrum” may itself be highly relevant to a court’s resolution of the issues before it. Americans for Prosperity Foundation, 594 U.S. at 617; see also Transcript of Oral Argument at 73:1–6, Williams v. Washington, No. 23-191 (U.S. Oct. 7, 2024) (Justice Kavanaugh: “[W]e have amicus briefs from a wide variety of groups, from ACLU and Public Citizen to religious liberty groups, to the Chamber of Commerce, all of which say that your rule will really hinder federal civil rights claims from getting into state court.”). There is also no guidance in the proposal about what a court should do when amicus organizations are unable to eliminate the risk of redundancy through coordination—perhaps because they are not aware of every amicus organization that intends to file,5 because the unique identity and perspective of the amicus organization is itself relevant to the issues before the court, or because certain amicus organizations are unwilling to forgo particular lines of argument. In a contest among various amici, judges may choose to grant the motion of whichever amicus organization filed first. “The spectacle of the race to the courthouse,” the Administrative Conference has explained in another context subsequently ended by Congress, “is an unedifying one that tends to discredit the administrative and judicial processes and subject them to warranted ridicule.” Admin. Conf. of the U.S., Recommendation 80-5, Eliminating or Simplifying the “Race to the Courthouse” in Appeals from Agency Action, 45 Fed. Reg. 84,954 (Dec. 24, 1980); see also Sacramento Mun. Util. Dist. v. FERC, 683 F.3d 769, 770 (7th Cir. 2012) (Easterbrook, J.) (describing “unseemly races to the courthouse”). The first brief filed is not always the most helpful to the court, and the Advisory Committee should avoid adopting a rule that favors speed over highquality advocacy. Judges should be free to review any amicus brief that persuasively addresses an 5 This practical problem would also make it difficult or impossible for prospective amici to disclose “connections among amici,” as some have wrongly suggested the Committee should additionally require. Comments of Sen. Sheldon Whitehouse, et al., at 3 (filed Sept. 12, 2024), https://tinyurl.com/2psp7fja. Furthermore, as others have rightly indicated, that significant burden delivers no offsetting benefits to the judicial process. See Comments of Sen. McConnell, et al. (filed Sept. 10, 2024), https://tinyurl.com/yv9xzh4b. 1615 H Street, NW | Washington, DC 20062-2000 | 202.463.5337 | chamberlitigation.com Appellate Rules Hearing on Proposed Amendments | February 14, 2025 Page 22 of 251 12 issue, regardless of when it was filed relative to other amicus briefs. The cumulative impact of the proposed motion amendments would be to discourage amicus participation by putting a thumb on the scale against amicus briefs. That is, after all, its intent. Far from encouraging amicus briefs, the proposal explains when briefs are “disfavored.” See August Report, Draft Proposal Rule 29(a)(2) & 29(a)(3)(B) (28–29). And it requires prospective amici to draft motions to explain the value of their arguments (without actually making them), to justify why the arguments are different from those presented by the parties (but not so different as to violate the party presentation rule), and to somehow assess whether other prospective amici have (or may) make similar arguments. This shift away from the current permissive requirements of Rule 29 makes it far less likely that judges will “err on the side of granting leave.” Neonatology Associates, 293 F.3d at 133 (Alito, J. in chambers). And in turn, these burdens and the heightened risk of denial may discourage an amicus organization from submitting a brief at all. That shift is monumental. With the vast majority of amicus briefs filed on consent, a burdensome and detailed motion requirement for each and every amicus brief would fundamentally change amicus practice in the courts of appeals. Unlike the current Rule 29, the goal of the proposed amendments is to “filter” the number of amicus briefs. August Report at 25; see id. at 40 (“the consent requirement fails to serve as a useful filter”). That is out of step with the open, speech-protective approach long favored by the Supreme Court and the courts of appeals, and the Committee should reject the proposed amendments. * * * The Chamber appreciates the careful and deliberate manner in which the Committee has approached these issues and is grateful for the opportunity to comment on the Committee’s important work. Thank you for your consideration. Respectfully, Tara Morrissey Senior Vice President and Deputy Chief Counsel U.S. Chamber Litigation Center 1615 H Street, NW | Washington, DC 20062-2000 | 202.463.5337 | chamberlitigation.com Appellate Rules Hearing on Proposed Amendments | February 14, 2025 Page 23 of 251 TAB 7 Appellate Rules Hearing on Proposed Amendments | February 14, 2025 Page 24 of 251 January 29, 2025 Submitted via Regulations.gov The Honorable John D. Bates Chair, Committee on Rules of Practice and Procedure Administrative Office of the United States Courts One Columbus Circle NE Washington, DC 20544 Re: Proposed Amendments to Federal Rule of Appellate Procedure 29 (USC-RULES-AP-2024-0001) Dear Judge Bates: I write to express the views of Court Accountability on the proposed amendments to Rule 29 of the Federal Rules of Appellate Procedure that would make much-needed improvements to disclosures for amicus curiae briefs. We believe that these amendments serve as a necessary step towards a fairer and more transparent appellate process. I. Importance of Transparency in Amicus Filings At their best, amicus curiae briefs can play a vital role in appellate litigation by providing courts with diverse perspectives and expertise. As scholars have documented, however, amici can often act as alter egos of parties, with a range of negative consequences for judicial administration and fairness.1 For instance, a party can use amici that are under its financial influence or control to circumvent page limits or advance arguments it prefers not to make itself.2 Perhaps more troubling, amici and the parties or third-party interests that support them can essentially misguide a court—and the public—by appearing independent from parties with which they are associated, through financial connections or otherwise.3 As the Advisory Committee appropriately recognized, “the identity of an amicus does matter, at least in some cases, to some judges,” and “members of the public can use the disclosures [of amicus identity] to monitor the courts, thereby serving both the important governmental interest in appropriate accountability 1 See, e.g., Allison Orr Larsen & Neal Devins, The Amicus Machine, 102 Va. L. Rev. 1901 (2016); Sheldon Whitehouse, A Flood of Judicial Lobbying: Amicus Influence and Funding Transparency, 131 Yale L.J.F. 141, 159-160 (2021). 2 See, e.g., Fed. R. App. P. 29 advisory committee’s note to 2010 amendment (noting that the Rule 29 disclosure requirement “serves to deter counsel from using an amicus brief to circumvent page limits on the parties’ briefs”); Comm. on Rules of Practice and Procedure, Judicial Conference of the United States, Proposed Amendments to the Federal Rules of Appellate and Bankruptcy Procedure, and the Federal Rules of Evidence (“Proposed Amendments”) at 21 (Aug. 2024) (“[I]n our adversary system, parties are given a limited opportunity to persuade a court and should not be able to evade those limits by using a proxy.”). 3 Proposed Amendments at 21 (“[A] court should not be misled into thinking that an amicus is more independent of a party than it is.”). Appellate Rules Hearing on Proposed Amendments | February 14, 2025 Page 25 of 251 and public confidence in the courts.”4 This transparency rationale applies both to identifying the amicus and those who significantly fund it. II. Shortcomings of the Current Rule 29 Disclosure Scheme The current form of Rule 29 imposes a limited disclosure requirement on non-governmental amici. Non-government amici must disclose whether “a party’s counsel authored the brief in whole or in part”; “a party or a party’s counsel contributed money that was intended to fund preparing or submitting the brief”; and “a person—other than the amicus curiae, its members, or its counsel—contributed money that was intended to fund preparing or submitting the brief.”5 The funding disclosures are triggered only for contributions earmarked for preparing or submitting the brief and do not reach contributions purportedly made to an amicus for its general fund or other purposes. The rule also exempts from disclosure a payment made by non-party “members” of an amicus, even if the payment is earmarked for the brief.6 The limitations of the funding disclosure regime allow meaningful financial entanglements to go undisclosed.7 For example, a party can fund essentially the entire amicus operation of an organization, but as long as it does not earmark its contribution for the preparation or submission of a particular amicus brief filed by that organization, the organization’s amicus filing need not disclose the party’s contribution in a case involving that party.8 Such disclosure-avoidance schemes have helped the proliferation of the “amicus machine,” in which amici under the control or influence of a party flood the docket with highly coordinated briefs.9 III. Benefits of the Proposed Amendments The proposed amendments make several improvements that will help deter gamesmanship to avoid amicus funding disclosure. The requirement for an amicus to disclose whether a party, its counsel, or any combination thereof has in the previous 12 months contributed or pledged to contribute 25 percent or more of its total revenue for its prior fiscal year will impose needed disclosure obligations on amici that are financially dependent on parties. Partially closing the member loophole recognizes that the fact that a funder is a member of an amicus should not shield that funder from being disclosed for earmarking funds to a particular amicus brief. Additionally, requiring amici to provide “a concise description of the identity, history, experience, and interests of the amicus curiae, together with an explanation of how the brief and the perspective of the amicus will help the court” (and the date of creation if the amicus was created within the year) should help deter parties from establishing organizations solely to serve as amici. 4 Proposed Amendments at 20. See also Helen A. Anderson, Frenemies of the Court: The Many Faces of Amicus Curiae, 49 U. Rich. L. Rev. 361, 379 (2015) (noting that “some courts remain suspicious of amici curiae with close connections to a party”). 5 Fed. R. App. P. 29(a)(4)(E). 6 Fed. R. App. P. 29(a)(4)(E)(iii). 7 For examples of common entanglements among well-funded parties and amici, see Br. of Amicus Curiae Professor Paul M. Collins, Jr., in Support of Plaintiff-Appellee, Epic Games, Inc. v. Google LLC, No. 24-6256 (9th Cir. Jan 7, 2025), ECF No. 145 8 See, e.g., Whitehouse, supra n.1. 9 See Larsen & Devins, supra n.1. Appellate Rules Hearing on Proposed Amendments | February 14, 2025 Page 26 of 251 Overall, the proposed amendments enhance the adversarial process and promote fairness in appellate proceedings, improving access to information about the interests behind amicus briefs. The amendments provide courts with additional information to evaluate the credibility of amicus submissions. Disclosure of significant financial contributions helps courts distinguish between genuinely independent briefs and those influenced by undisclosed interests, which can unfairly advantage litigants by amplifying the arguments of deeper-pocketed parties. Finally, as the Advisory Committee details, the Rule 29 amendments are fully consistent with legal precedent regarding funding disclosure, including Americans for Prosperity Foundation v. Bonta, 141 S. Ct. 2373 (2021).10 We dispute the premise that there is a right to fund amicus briefs anonymously or that disclosure obligations on such funding require strict scrutiny, not least because “a would-be amicus does not have a right to be heard in court.”11 Nonetheless, even under that standard, the government has a compelling interest in requiring disclosure of amicus funding for the reasons articulated in the Advisory Committee’s memorandum and above. IV. Further Suggested Improvements We strongly support the proposed enhancements to Rule 29's amicus disclosure requirements. However, given the breadth of the risk that covert amicus influence and control pose to the integrity of the appellate process, we respectfully suggest additional improvements to the rule. First, we believe that the 25-percent funding threshold is set too high, as it allows significant financial contributions below this level to remain undisclosed. For instance, a donor contributing 15 or 20 percent of an organization’s revenue still exerts considerable influence on the amicus’s operations and messaging. Second, we support the request by Senator Sheldon Whitehouse and Representative Hank Johnson for a requirement of additional disclosure of financial links between amici. As Senator Whitehouse and Representative Johnson detail in their comment, such disclosures are needed to provide greater transparency into amicus machine operations that flood dockets with highly orchestrated briefs in support of well-funded interests, some of which essentially establish figurehead organizations to serve as plaintiffs,12 recruit an individual to serve as plaintiff of convenience, or fund both the law firms bringing the case and the amici.13 The suggestion by Senator Whitehouse and Representative Johnson for disclosure of connections among amici would bring needed transparency to these practices. * * * 10 We note that the decision in Americans for Prosperity Foundation v. Bonta was itself a product of a well-funded and well-coordinated amicus-machine effort. See Whitehouse, supra n.7, at 147-9. 11 Proposed Amendments at 20. 12 See, e.g., Melissa Gira Grant, Who Exactly Is Behind the Supreme Court’s Big Mifepristone Case?, The New Republic (March 7, 2024), https://newrepublic.com/article/179626/mifepristone-abortion-supreme-court-alliance-hippocratic-med icine. 13 See Letter from Sheldon Whitehouse & Hank C. Johnson to John D. Bates (Sept. 12, 2024), https://www.whitehouse.senate.gov/wp-content/uploads/2024/09/2024-09-12-Amicus-Disclosure-Com ment-FINAL.pdf. Appellate Rules Hearing on Proposed Amendments | February 14, 2025 Page 27 of 251 The proposed amendments to Rule 29 represent a crucial step toward enhancing transparency and maintaining the integrity of appellate proceedings. We urge you to adopt them. Thank you very much for considering these comments. Respectfully submitted, Alexander Aronson Executive Director Court Accountability Appellate Rules Hearing on Proposed Amendments | February 14, 2025 Page 28 of 251 TAB 8 Appellate Rules Hearing on Proposed Amendments | February 14, 2025 Page 29 of 251 January 13, 2025 Honorable John D. Bates Chair, Committee on Rules of Practice and Procedure Judicial Conference of the United States One Columbus Circle Northeast Washington, District of Columbia 20544 Re: Request for Comments on Proposed Amendments to Federal Rule of Appellate Procedure 29 Dear Judge Bates: I am writing as chair of the DRI Center for Law and Public Policy’s Amicus Committee to comment on the proposed amendments to Federal Rule of Appellate Procedure 29, namely (1) to urge rejection of the proposed amendment that would eliminate the ability of nongovernmental amici curiae to file briefs on consent of the parties and replace it with a requirement that the filing of all nongovernmental amicus briefs require court permission requirement in all instances; and (2) to relay some concerns regarding the structure and practicality of the proposed amendments regarding disclosures in Rules 29(a)(3)–(4), 29(b), and 29(c). The DRI Center for Law and Public Policy DRI is the largest international membership organization of attorneys defending the interests of business and individuals in civil litigation. DRI is committed to addressing issues germane to defense lawyers and the civil justice system and improving the civil justice system. Many of DRI’s 14,000 members include attorneys who regularly practice in the federal courts of appeals. In addition, the Center for Law and Public Policy is DRI’s think tank and advocacy voice. The Center’s Amicus Committee files almost a dozen amicus briefs each year in carefully selected United States Supreme Court, state supreme courts, and federal and state appellate court cases that present issues that are important to the civil justice system and to civil litigation defense attorneys and their clients. DRI firmly believes amicus briefs can provide valuable information to appellate Appellate Rules Hearing on Proposed Amendments | February 14, 2025 Page 30 of 251 courts regarding the ramifications of their decisions, and context that may be important but not addressed (or well addressed) by the parties. Recommended Amendment Regarding Leave of Court for Nongovernmental Amicus Briefs On January 6, 2023, the DRI Center for Law and Public Policy wrote to recommend eliminating the requirement of consent of the parties or court permission for the filing of nongovernmental amicus curiae briefs, following the Supreme Court’s lead in revising Supreme Court Rule 37 to eliminate parallel requirements in that court. In announcing its rules change, which became effective on January 1, 2023, the Supreme Court Clerk explained that “[w]hile the consent requirement may have served a useful gatekeeping function in the past, it no longer does so, and compliance with the rule imposes unnecessary burdens upon the litigants and the Court.” The proposed amendments to FRAP 29(a), however, take the opposite approach—they propose to eliminate the filing of amicus briefs on consent of the parties, and to require a motion and court permission each and every time. For the reasons articulated by the Supreme Court when it revised its Rule 37, the proposed amendments to Rule 29(a) are unnecessary and will be unhelpful to the federal appellate courts. Under current appellate practice, parties routinely consent to any and all amicus briefs as a matter of good form and professionalism. In those rare instances where party consent is withheld, motions for leave are almost never opposed and courts rule on them as routine matters. Because the proposed amendments would require a motion and court permission for every amicus brief, however, they invite a sea change in appellate practice with respect to amicus briefs. Parties may well view the motion requirement—particularly in combination with the new “disfavored” language in the proposed amendment to Rule 29(a)(2))—as an invitation to oppose amicus motions regularly on the grounds that they are not sufficiently helpful to the court. Should this occur, the courts will have to devote time and resources to deciding numerous contested motions about whether a given amicus brief meets the standard of helpfulness enough to allow it to be filed, instead of allowing the federal appellate courts to get to the heart of the matter—the merits of appeals based on the merits of the arguments before it—whether presented by the parties or amici. The proposed motion-and-permission mandate will not be beneficial to anyone: the courts, the parties, or potential amici. Moreover, the reasons given by the Advisory Committee for requiring court permission for every amicus brief do not withstand scrutiny. The first reason given by the Advisory Committee for rejecting the Supreme Court’s noconsent/no-motion approach is that—somehow—the Supreme Court requirement that amicus briefs be filed in booklet form is a “modest filter” that justifies requiring motion practice for amicus briefs in the federal appellate courts. The Advisory Committee does not further explain this rationale, and the accuracy of this assertion most certainly is not self-evident. How is the filing of an amicus brief in a printed booklet format the equivalent of a mandatory motion-and-permission requirement in the federal appellate courts? The Advisory Committee does not say. -2- Appellate Rules Hearing on Proposed Amendments | February 14, 2025 Page 31 of 251 The second reason given by the Advisory Committee for rejecting the Supreme Court’s noconsent/no-motion approach and requiring advance court permission is the stated purpose of protecting federal appellate judges from needing to recuse themselves following the filing of an amicus curiae brief that results in a conflict. But requiring advance court consent is entirely unnecessary for this purpose because Rule 29(a)(2) already authorizes a court of appeals to prohibit or strike the filing of an amicus brief that would result in a judge’s disqualification. The undercurrent of Advisory Committee’s mandatory court permission amendment is that amicus briefs are bad or that there are too many of them, and thus barriers should be erected and costs imposed to solve this problem. But timely, rules-compliant amicus briefs that do not replicate party legal arguments enhance appellate decision-making and the judicial process by providing federal appellate courts with additional arguments and broader perspectives on the legal questions presented. Amicus briefs give organizations such as DRI a direct voice in appeals that present legal questions that affect, or are important to, their members. Federal courthouse doors should readily open to true friends of the court such as DRI. Accordingly, the proposed amendments that would delete the filing-by-consent rule and mandate motion practice should be rejected, and DRI urges the Advisory Committee to revisit the idea of adopting the Supreme Court’s no-consent/nomotion approach. Recommended Amendments Regarding Disclosures As a national voluntary bar organization, DRI, through its DRI Center for Law and Public Policy, files amicus briefs on issues important to its members (civil litigation defense attorneys) and the civil justice system. DRI does not solicit nor accept funds for the preparation of any amicus brief. DRI members support the organization through yearly dues and, from those dues, its Amicus Committee is given a small, yearly budget allotment that it must then manage by carefully evaluating requests for amicus support and choosing only to file amicus briefs that it believes will be most helpful to the courts and supportive of the interests of its membership. Accordingly, to the extent certain of the proposed amendments add to Rule 29’s disclosure requirements in the hope of ferreting out possible undisclosed financial support earmarked for particular amicus briefs or presumed hidden identities behind organizations filing amicus briefs, the DRI Center for Law and Public Policy has no position about the relative merits of the substance of the proposed amended disclosure requirements. The DRI Center for Law and Public Policy’s Amicus Committee, however, does have an interest in ensuring that any disclosure requirements in Rule 29 are practical, straightforward, efficient, and easy to comply with, so that its limited budget is not dissipated by needlessly complex and impractical rules. At present, Rule 29’s disclosure rules are indeed practical, straightforward, efficient, and easy to comply with. Fed. R. App. P. 29(a)(4)(E) currently requires nongovernmental amici to provide: [A] statement that indicates whether: (i) a party’s counsel authored the brief in whole or in part; -3- Appellate Rules Hearing on Proposed Amendments | February 14, 2025 Page 32 of 251 (ii) a party or a party’s counsel contributed money that was intended to fund preparing or submitting the brief; and (iii) a person—other than the amicus curiae, its members, or its counsel—contributed money that was intended to fund preparing or submitting the brief and, if so, identifies each such person; In other words, at present, those interested in filing an amicus curiae brief can quickly find, in one place, a short list of information that must be disclosed, and one set of easy instructions about how to comply with the disclosure requirement. The proposed amendments, by contrast, have multiple duplicative and additive disclosure requirements spread across several subsections: • A proposed amendment that would make the newly mandatory motion for permission to file an amicus brief also proposed a new motion disclosure requirement (proposed Rule 29(a)(3)(C)), but to determine the content of the required disclosures, that provision cross-references proposed Rules 29(a)(4)(A), (b), (c), and (e); • The amicus brief that must accompany the motion also must have disclosures as specified in proposed Rule 29(a)(4)(F), but that provision again crossreferences proposed Rules 29(b), (c), and (e); • Turning to proposed Rule 29(b), (c), and (e) these require an amicus brief to include a statement with the traditional disclosures (such as whether a party or its counsel authored the brief in whole or in part), but also additional somewhat duplicative and overlapping disclosures about financial support earmarked for the brief; influence over the entity submitting the brief; and relationships to certain parties and nonparties; • Then, swinging back to Rule 29(a)(4) (D) and (E), these proposed amendments contain yet more disclosure requirements that must go in the amicus brief, such as statements about the history, experience, and interests of the amicus curiae, and the date the amicus entity was created if in existence for less than 12 months. There is no discernable reason for amendments that disperse all these new disclosure requirements throughout Rule 29. As a practical matter, all disclosure requirements should be straightforward, better organized, and centrally located within Rule 29 so that those interested in participating as amici can readily comply with the requirements and provide the information the Advisory Committee believes should be disclosed. Respectfully submitted, /s/ Lisa M. Baird Lisa M. Baird, Chair DRI Center for Law and Public Policy Amicus Committee -4- Appellate Rules Hearing on Proposed Amendments | February 14, 2025 Page 33 of 251 TAB 9 Appellate Rules Hearing on Proposed Amendments | February 14, 2025 Page 34 of 251 January 29, 2025 Honorable John D. Bates Chair, Committee on Rules of Practice and Procedure Administrative Office of the United States Courts One Columbus Circle Northeast Washington, District of Columbia 20544 Dear Judge Bates: My name is Thomas Berry, and I am the director of the Cato Institute’s Robert A. Levy Center for Constitutional Studies. I am submitting written testimony now, and I will also be submitting a comment on the proposed amendments within the next few days. I urge the Committee not to adopt the proposed amendments. I agree entirely with the First Amendment and donor privacy concerns that have been ably addressed in others’ comments. I would like to focus on the proposed requirement that all nongovernmental amicus filers in the federal appellate courts must receive leave of court. Other commenters have noted that this would add significantly to the federal appellate workload, forcing federal judges to read and rule on motions for leave to file when their time is better spent on other matters. My testimony will focus on what this change would mean from the perspective of a frequent amicus filer. I direct Cato’s amicus program, which is one of the most active amicus filers in the federal courts. We file roughly 60 amicus briefs per year in the federal courts, and I can conservatively say that there are at least three times that many cases where we would file if we had the resources and bandwidth. Drafting an amicus brief takes our shop at least a month from start to finish, during which time a junior attorney works exclusively on that case. I would estimate that each brief we file is the product of roughly 5 total weeks of dedicated attorney work time, including the time that I and other more senior attorneys spend editing and giving other guidance. Given the limited resources that all organizations have, we must make hard choices about which cases we use our attorneys’ time on. At present, we file roughly 20 percent of our federal briefs in the federal appellate courts and nearly all of the rest in the Supreme Court (with an occasional brief in the federal district courts). But if these proposed amendments took effect, we would have to seriously reconsider whether it would make sense to continue attempting to file in the federal appellate courts at all. If there were even a 1-in-4 chance that a brief we submitted in a federal appellate court would be rejected at the motion to leave stage and thus not even read, it would be difficult to justify dedicating significant resources to producing that brief. Under the current Supreme Court rules, it is guaranteed that briefs submitted to the Supreme Court will be accepted for filing. As a steward of Cato’s limited resources and our attorneys’ limited time, it would be hard to justify gambling our time on producing an Cato Institute • 1000 Massachusetts Ave., N.W. • Washington, D.C. 20001 • (202) 842-0200 Fax: (202) 842-3490 • www.cato.org Appellate Rules Hearing on Proposed Amendments | February 14, 2025 Page 35 of 251 appellate amicus brief that might not even be accepted for filing when we could instead spend that time producing a Supreme Court brief that would be guaranteed to be accepted. Thus, I urge the Committee to consider a probable unintended consequence of this rule: that it would likely incentivize amicus filers to focus even more on the Supreme Court than they already do. And that is precisely the wrong direction for amicus filings to trend. From my own experience as a federal appellate law clerk, I saw that even in difficult and important cases, the federal appellate courts rarely receive amicus briefs. And when they do, they are usually far less in quantity than the Supreme Court would receive in a case asking the same question. If anything, the balance should be tilted toward encouraging the dedication of more amicus resources to the federal appellate courts and less to the Supreme Court. The federal appellate courts decide difficult and consequential cases every day, and they usually do so without the benefit of amicus help. I urge the Committee to look to the Supreme Court as an example of the better approach to amicus briefs. Yes, it is more expensive to file amicus briefs at the Supreme Court than it is in the federal appellate courts, due to printing costs. Nonetheless, the Supreme Court routinely receives dozens of amicus briefs in its cases. If that were a distracting burden, the Supreme Court would have presumably made it even harder to file amicus briefs. But instead it did the opposite when it eliminated the consent-or-leave requirement for filing. Put simply, if a high quantity of amicus briefs were a burden, the Supreme Court would be the most urgently concerned with that burden as the court that receives by far the most amicus briefs per case. It is telling that the Supreme Court has not seen a need to restrict the number of amicus filings. In my experience, when consent is denied and we are required to move for leave to file, our motion mirrors very closely the summary of the argument of our brief itself. In practice, it would be just as easy for a judge to read our summary of argument and decide whether to read further. That is what judges have done in the past, and they should be allowed to continue doing so without interposing an unnecessary motion stage. Finally, I wish to note that the limited time and resources of amicus filers is itself a reason why amicus briefs tend not to be overly duplicative. In my experience, major filers on the same side of a case will check with each other to ensure that they are not repeating each other. That is the smart thing to do when we all have limited time and resources. If there is no unique angle to contribute in a case, I will not dedicate Cato’s resources to producing a “me too” brief in that case. The rational interests of amicus filers largely serve to address concerns of duplicative briefs. There is no need for a motion stage to try to enforce an unpredictable rule against being overly duplicative. Sincerely, Thomas A. Berry Director Robert A. Levy Center for Constitutional Studies Cato Institute 2 of 2 Appellate Rules Hearing on Proposed Amendments | February 14, 2025 Page 36 of 251 TAB 10 Appellate Rules Hearing on Proposed Amendments | February 14, 2025 Page 37 of 251 Appellate Rules Hearing on Proposed Amendments | February 14, 2025 Page 38 of 251 Appellate Rules Hearing on Proposed Amendments | February 14, 2025 Page 39 of 251 Appellate Rules Hearing on Proposed Amendments | February 14, 2025 Page 40 of 251 TAB 11 Appellate Rules Hearing on Proposed Amendments | February 14, 2025 Page 41 of 251 ATLANTIC LEGAL FOUNDATION Lawrence S. Ebner Executive Vice President & General Counsel 1701 Pennsylvania Ave., NW, Suite 200, Washington, DC 20006 202-872-0011 (o) • lawrence.ebner@atlanticlegal.org November 6, 2024 Uploaded to Rulemaking Docket Hon. John D. Bates Chair, Committee on Rules of Practice and Procedure Judicial Conference of the United States One Columbus Circle, NE Washington, DC 20544 Re: USC-RULES-AP-2024-0001 Dear Judge Bates: On behalf of the Atlantic Legal Foundation, I am submitting these comments on the proposed amendments to Federal Rule of Appellate Procedure 29. The Advisory Committee on Appellate Rules has indicated that it “is particularly interested in receiving comments on the proposal to eliminate the option to file an amicus brief on consent during a court’s initial consideration of a case on the merits.” These comments focus on that proposal, which we believe is both unwarranted and impractical, and should be rejected. By way of background, the Atlantic Legal Foundation (atlanticlegal.org) is a nonprofit, nonpartisan, public interest law firm founded almost a half-century ago. We are a frequent filer of amicus curiae briefs in the federal courts of appeals as well as in the Supreme Court. Our amicus briefs address legal issues that align with one or more of our six advocacy mission areas: individual liberty, free enterprise, property rights, limited and responsible government, sound science in judicial and regulatory proceedings, and effective education, including parental rights and school choice. Appellate Rules Hearing on Proposed Amendments | February 14, 2025 Page 42 of 251 We endeavor to foster the fundamental, judicially beneficial purpose of amicus briefs, as well as comply with the rules governing their preparation and submission. In particular, we strive to draft amicus briefs that enhance an appellate court’s perspective on, and understanding of, the legal issues in a case, rather than duplicating the arguments presented by the supported party, and to the extent possible, by other amici curiae. We also believe that the federal rules should open the appellate process—and give a voice— to all organizations and individuals with an interest in the legal questions presented by a case. This can be accomplished only by rules that facilitate, not hinder, the filing of amicus briefs. Requiring a motion for leave would undermine this objective by deterring preparation and submission of worthwhile amicus briefs, in addition to unnecessarily burdening appellate judges. My Law360 essay, Requiring Leave To File Amicus Briefs Is a Bad Idea (Apr. 4, 2024), discusses the practical problems and inevitable mischief that eliminating filing-with-consent, and requiring a motion for leave, would engender in federal courts of appeals. For example, requiring proposed amicus filers to demonstrate that the arguments and information in their already-drafted amicus briefs are “helpful” may encourage non-supported parties to oppose motions for leave in an effort to deprive courts of appeals of amicus briefs that offer persuasive arguments and/or useful information. Requiring a motion for leave also may motivate non-supported parties to attack amicus filers and perhaps their counsel simply for seeking to serve as a friend of the court. Equally important, requiring a motion for leave would create uncertainty regarding whether a proposed amicus brief will be accepted for filing—uncertainty that may deter many nonprofit organizations such as the Atlantic Legal Foundation from investing their limited resources in researching and drafting briefs that would be helpful to courts of appeals. The purported rationale offered by the Advisory Committee for the proposed motion-for leave requirement—enabling circuit judges to reject the filing of amicus briefs that would require their recusal—not only is a rare occurrence, but already is expressly addressed by Rule 29(a)(2) (“a court of appeals may prohibit the filing of or may strike an amicus brief that would result in a judge’s disqualification”). It is important to note that the Code of Conduct that the Supreme Court’s Justices adopted in November 2023 states that “Neither the filing of a brief amicus curiae nor the participation of counsel for amicus curiae requires a Justice’s disqualification.” The current system works well: Except in unusual circumstances, litigating parties’ appellate counsel routinely consent to the timely filing of amicus briefs; nonsupported parties, if they wish, can address amicus arguments in their own merits briefs (which they typically decline to do); and the merits panel can afford a particular amicus Appellate Rules Hearing on Proposed Amendments | February 14, 2025 Page 43 of 251 brief whatever weight it deserves. Indeed, as the Atlantic Legal Foundation previously has suggested to the Advisory Committee, if Rule 29 is to be amended at all, it should be to adopt the Supreme Court’s enlightened approach of allowing timely, rules-compliant amicus briefs to be filed without having to obtain the court’s permission or even the parties’ consent. See Sup. Ct. R. 37, as amended Jan. 1, 2023. Thank you for your consideration. Sincerely, /s/Lawrence S. Ebner Lawrence S. Ebner Executive Vice President & General Counsel Atlantic Legal Foundation Appellate Rules Hearing on Proposed Amendments | February 14, 2025 Page 44 of 251 TAB 12 Appellate Rules Hearing on Proposed Amendments | February 14, 2025 Page 45 of 251 No written testimony outline or comment was submitted by the requested January 29, 2025 deadline. Appellate Rules Hearing on Proposed Amendments | February 14, 2025 Page 46 of 251 TAB 13 Appellate Rules Hearing on Proposed Amendments | February 14, 2025 Page 47 of 251 No written testimony outline or comment was submitted by the requested January 29, 2025 deadline. Appellate Rules Hearing on Proposed Amendments | February 14, 2025 Page 48 of 251 TAB 14 Appellate Rules Hearing on Proposed Amendments | February 14, 2025 Page 49 of 251 CTlie. Hetitage Foundation 214 Massachusetts Avenue, NE Washington, DC 20002 (202) 546-4400 heritage.org January 28, 2025 The Honorable John D. Bates Chair, Committee on Rules of Practice and Procedure Judicial Conference of the United States Washington, D.C. 20544 Dear Judge Bates: We write to express our opposition to the proposed amendments to Federal Rule of Appellate Procedure 29-particularly the new and onerous disclosure regime for those who file amicus curiae briefs. These amendments have no practical justifications and likely violate the First Amendment to the U.S. Constitution. Problematically, as the Advisory Committee and Amicus Subcommittee repeatedly conceded, the amendments are grounded in the notion that judges decide issues based not solely on the law and the facts before them, but instead (at least sometimes) decide issues based on the identity of the individual making an argument or the identity of those associated with that individual. That is wrongboth morally and legally. Judges must decide each case solely on its merits. To do otherwise violates judicial integrity and ethics. If adopted, the proposed rule changes will seriously call into question the impartiality of the federal judiciary. At bottom, this Committee appears to be proposing these amendments because of politics. The Advisory Committee and Amicus Subcommittee repeatedly invoked the unsubstantiated and partisan allegations Senator Sheldon Whitehouse (D-RI) and Representative Hank Johnson (D-GA) have pushed in their critiques of the supposed "dark money" network trying to influence the Supreme Court through amicus briefs. Recognizing that they could not get their proposed "reforms" passed through Congress, Whitehouse and Johnson shifted tactics and now seek to have the Judicial Conference do their dirty work for them. Do not fall for their trap! Adopting the proposed amendments would needlessly drag the federal judiciary into a partisan political battle. For an in-depth discussion of the purposes and practices associated with amicus briefs, as well as the many practical and constitutional flaws with the proposed amendments, we have attached a recent legal memorandum we authored. But its conclusions can easily be summarized: the proposed amendments are unnecessary, are constitutionally questionable, and would undermine the federal judiciary's integrity and impartiality. We therefore Appellate Rules Hearing on Proposed Amendments | February 14, 2025 Page 50 of 251 'Tlie. Hetitage Foundation 214 Massachusetts Avenue, NE Washington, DC 20002 (202) 546-4400 heritage.org respectfully urge this Committee to withdraw the proposed amendments to Federal Rule of Appellate Procedure 29. • Sincerely, enior Legal Fellow and Manager, Supreme Court and Appellate Advocacy Program, Edwin Meese III Center for Legal and Judicial Studies Seth J . Lucas Senior Research Associate, Edwin Meese III Center for Legal and Judicial Studies Enclosure: ZACK SMITH & SETH LUCAS, LEGAL MEM. No. 371, IT'S A TRAP! A (LIKELY UNCONSTITUTIONAL) SOLUTION IN SEARCH OF A PROBLEM: APARTISAN PUSH FOR UNNEEDED AMICUS DISCLOSURE RULES (Jan. 24, 2025), h ttps ://www .heritage.org/the-consti tution/report/its-trap-likelyunconsti tutional-sol ution-search-pro blem-partisan-push. Appellate Rules Hearing on Proposed Amendments | February 14, 2025 Page 51 of 251 LEGAL MEMORANDUM No. 371 | January 24, 2025 EDWIN MEESE III CENTER FOR LEGAL & JUDICIAL STUDIES It’s a Trap! A (Likely Unconstitutional) Solution in Search of a Problem: A Partisan Push for Unneeded Amicus Disclosure Rules Zack Smith and Seth Lucas KEY TAKEAWAYS Amicus briefs are used by progressives, conservatives, industries, activists, and others who want to have a voice in our judicial system. The notion that judges should refuse to consider an argument because it might advance certain disfavored interests is incompatible with judicial integrity. Judges should recognize that attempts to convince them otherwise are nothing more than a trap. Introduction As Admiral Akbar sailed the Rebel Fleet into what was supposed to be a surprise attack on the Death Star, he realized just in time that he had been tricked and lured into an unfavorable fighting position. In shock, he famously exclaimed: “It’s a trap!”1 So too today are demands for more strident disclosure requirements for those who file amicus curiae briefs in the federal court system. Since Roman times, the amicus curiae—Latin for “friend of the court”—has played a variety of roles in Western legal systems. In the United States, the amicus brief has become a means for groups interested in a case’s outcome to provide additional perspectives, information, or arguments. Amicus briefs are widely used by progressives, conservatives, industries, activists, and others who want to have a voice in our judicial system. This paper, in its entirety, can be found at https://report.heritage.org/lm371 The Heritage Foundation | 214 Massachusetts Avenue, NE | Washington, DC 20002 | (202) 546-4400 | heritage.org Nothing written here is to be construed as necessarily reflecting the views of The Heritage Foundation or as an attempt to aid or hinder the passage of any bill before Congress. Appellate Rules Hearing on Proposed Amendments | February 14, 2025 Page 52 of 251 LEGAL MEMORANDUM | No. 371 heritage.org January 24, 2025 | 2 Lately, however, the amicus curiae has come under attack. Decrying recent judicial decisions with which they disagree, Senator Sheldon Whitehouse (D–RI), Representative Hank Johnson (D–GA), and others have insinuated without proof that these decisions were influenced by amicus curiae who, entangled in clandestine networks of dark money, are engaged in sinister efforts to manipulate the federal judiciary. The solution, they argue, is onerous disclosure and reporting requirements that expose every detail of an amicus’s associations. These proposals do not spring from a pure-hearted concern for good government and the judiciary’s integrity. Instead, they are part of a broader partisan effort to undermine public confidence in the courts and harm perceived political enemies. Because of the obvious partisan politics at play, Whitehouse’s and Johnson’s ideas have gained little traction in the halls of Congress. So they have turned elsewhere. They have now asked the Judicial Conference of the United States—the governing body of the federal judiciary—to do their dirty work for them and enact via rule changes what they could not get Congress to enact. Sadly, the Judicial Conference has fallen into their trap. Acquiescing to Whitehouse’s and Johnson’s demands, it has spent over three years studying and recommending changes in the current amicus disclosure regime in the lower federal courts. Now it has proposed rules that open the door for intense scrutiny of every dollar going to an amicus and every person or group with which an amicus associates—scrutiny that likely will have a chilling effect on the willingness of amici to file briefs. But unlike the Rebel Fleet, the Judicial Conference is chasing only the illusion of a Death Star. Not only do Whitehouse’s and Johnson’s proposed disclosures—and the proposed Judicial Conference rules changes inspired by them—suffer from constitutional and practical concerns, but they are also fundamentally a solution in search of a problem. At the end of the day, Whitehouse and Johnson have placed themselves in a win-win position politically while placing the Judicial Conference in a lose-lose situation. If the proposed disclosure rule changes are adopted, Whitehouse and Johnson can declare political victory. If not, Whitehouse and Johnson can yet again rail against what they portray as a corrupt cabal of federal judges. Similarly, if the proposed rule changes are adopted, the Judicial Conference will have signed off on a constitutionally problematic solution to a nonexistent problem and needlessly injected the federal judiciary into partisan politics. None of that needs to happen. The Judicial Conference can minimize the damage by stopping the train now and refusing to adopt the proposed rule Appellate Rules Hearing on Proposed Amendments | February 14, 2025 Page 53 of 251 LEGAL MEMORANDUM | No. 371 heritage.org January 24, 2025 | 3 changes. To that end, this Legal Memorandum proceeds in four parts. The first reviews the role and evolution of the amicus curiae in our legal system and outlines the background of the current system against which Whitehouse and Johnson rage. The second discusses the current controversy around amicus disclosure rules both at the U.S. Supreme Court and within the lower federal courts and explains Whitehouse’s and Johnson’s failed efforts in Congress to change the current disclosure regime legislatively. The third outlines the Judicial Conference Rules Committee’s specific proposal, and the fourth assesses the constitutional and practical concerns raised by those proposals. The Role of the Amicus Curiae History of the Amicus Curiae. Dating back to Roman times,2 the amicus curiae has played a variety of roles throughout its history. Initially, the amicus curiae was seen as a disinterested bystander seeking to assist the court with information on relevant law or facts. In the United States, the amicus curiae emerged originally as an advocate for unrepresented interests, especially the interests of third parties. Today, at least at the U.S. Supreme Court, a new phenomenon has emerged: skilled advocates facilitating amicus participation to signal noteworthy petitions for certiorari and provide a curated and coherent body of perspectives to aid the Court in deciding a case. Originally, the amicus curiae—Latin for “friend of the court”3—was viewed as a disinterested third party who sought to aid a court by proffering helpful information on law or facts relevant to a case.4 One vintage dictionary explained that “[w]hen a judge is doubtful or mistaken in matter of law, a bystander may inform the court thereof as amicus curiae,”5 which could be done, for example, by pointing to a case the court had not considered or of which it was unaware. Another explained that the “friend of the court” is “a bystander, who without having an interest in the cause,” provides helpful information “on a point of law or of fact.”6 In an early example involving a case where the meaning of a particular statute was disputed, a member of Parliament who had been present when the statute was passed sought to inform the court of Parliament’s intent.7 In 1606, two amici earned a sharp rebuke for failing to “perform[] the office of a good friend or of a good informer” by omitting a clause from an Act of Parliament.8 Despite its professed disinterestedness, the role of amicus curiae also provided an avenue for third parties with an interest at stake in a case to participate in the case.9 Common law systems in particular disfavored Appellate Rules Hearing on Proposed Amendments | February 14, 2025 Page 54 of 251 LEGAL MEMORANDUM | No. 371 heritage.org January 24, 2025 | 4 third-party involvement in trials.10 But in another early case, the amicus curiae represented the interest of a third party whose marital status would have been challenged by the suit, leading to exposure of the suit as collusive.11 The role of the amicus curiae as a friend of the court and as representative of a third party thus overlapped.12 In light of such examples, at least one scholar has argued that the amicus curiae role may have been a solution to the problem of representation of third parties in adversarial disputes.13 In the U.S. Supreme Court, the amicus curiae role developed early on as a device for advancing third-party interests.14 In Green v. Biddle, a dispute over land holdings in Kentucky to which Kentucky was not a party, Kentucky instructed Henry Clay to appear as an amicus curiae and seek rehearing after the Supreme Court’s decision in the case.15 The Court first allowed the motion, granted it, and then later allowed Clay to argue the case.16 Three decades later, the Court allowed the U.S. Attorney General to participate as an amicus curiae in Florida v. Georgia to speak on the public interests involved.17 And in 1864, California’s Attorney General filed a brief in a suit where the constitutionality of a California statute was at issue.18 For a time, the Court also allowed third parties with cases pending elsewhere— or who were involved below but had not joined the appeal—to participate as amicus curiae or intervenors “depending on the situation and requests of the litigants or agreements of the counsel.”19 A shift in the role of amicus curiae began to emerge in the early 1900s. Throughout the late 1800s and for the first decades of the 1900s, the authoring attorneys were seen and identified as the amicus curiae.20 By the 1930s, however, this was replaced with identification of the sponsor of the brief as the amicus curiae.21 Not only that, but amicus briefs became a tool to drive social and policy objectives. Under the leadership of Attorney General Charles Bonaparte, the Department of Justice increasingly sought to advance social change and public policies through amicus briefs. Increasingly, regulated industries, racial minorities, and organizations like the National Association for the Advancement of Colored People (NAACP) and American Civil Liberties Union (ACLU) also began to rely on the amicus brief to advance their interests as well as broader public interest goals.22 As the number of amicus briefs rose, the Supreme Court began to implement formal rules. In 1937, the Court formalized what was then common practice by requiring amici to obtain consent from the parties to file a brief or, if consent was denied, leave of the Court.23 In 1949, the Court further expounded on these procedures, explaining that motions for leave to file were “not favored.”24 Subsequently, leave was granted less often, and the Solicitor General began to routinely deny consent.25 Amicus participation Appellate Rules Hearing on Proposed Amendments | February 14, 2025 Page 55 of 251 LEGAL MEMORANDUM | No. 371 heritage.org January 24, 2025 | 5 subsequently declined.26 In 1957, faced with criticism from the Court for such rote denials, the Department of Justice clarified that it disfavored amicus briefs with academic or propaganda interest but would grant consent where the proposed amicus “has a concrete, substantial interest in the decision of the case” and sought to present “relevant arguments or materials which would not otherwise be submitted.”27 The number of briefs continued to rise, however, resulting in an 800 percent increase from the 1950s by the turn of the century and a 95 percent increase between 1995 and 2014.28 In the early 1900s, amicus briefs “were filed in only about 10% of the Court’s cases”; by the end of the century, they were filed in nearly 85 percent of argued cases.29 In 2023, the Court eliminated the requirement for consent from the parties.30 With the rise of the “Supreme Court Bar,” a new amicus curiae phenomenon has developed: the curation of amicus briefs to signal noteworthy petitions for certiorari or collectively provide additional information or perspectives not in a party’s briefing.31 As one article has explained: Today, elite, top-notch lawyers help shape the Court’s docket by asking other elite lawyers to file amicus briefs requesting that the Court hear their case. When the Court grants certiorari (or “cert”), these very lawyers strategize about which voices the Court should hear and they pair these groups with other Supreme Court specialists to improve their chances with the Court.32 This curation of amici may take the form of an “amicus wrangler”—an amici recruiter.33 But it may also take the form of an “amicus whisperer”—coordination of what briefs are filed, who joins those briefs, and what arguments the briefs raise.34 In Hamdan v. Rumsfeld, for instance, Neal Katyal (who argued the case for the petitioner) not only worked relentlessly to discourage briefs he thought would “blunt the impact” of stronger briefs, but also arranged for David Remes (then with Covington & Burling) to oversee the amici’s writing process so that the amici would stay on message.35 This use of an “outside ‘amicus whisperer’” not only aids advocates in tracking amici, scholars have since observed, but also ensures that “the person coordinating the amici message…has a lot more editing leeway without running afoul” of Supreme Court Rule 27.6 regarding party authorship or funding of amicus briefs.36 Amicus Curiae Influence in Theory and Practice. Scholars have proffered three theories about the impact of amicus briefs in courts. The first, the informational theory, views judges as “seeking to resolve cases in accordance with the requirements of the law” and thus views amicus briefs Appellate Rules Hearing on Proposed Amendments | February 14, 2025 Page 56 of 251 LEGAL MEMORANDUM | No. 371 heritage.org January 24, 2025 | 6 as helpful when they contain new legal arguments or factual information.37 The second, the attitudinal model, assumes that judges have “fixed ideological preferences” and rely on legal norms “only to rationalize outcomes after the fact.”38 In this model, amicus briefs that merely offer additional information are of little help to the judge.39 Under the third model, the public interest or affected groups theory, amicus briefs are more akin to lobbyists or a public opinion barometer.40 Both the fact that the brief was filed and the identities of the amici are important data points apart from the contents of the brief.41 Amicus briefs under this third model are helpful to a judge insofar as they signal how interested groups want the case decided.42 As explained below, however, this third theory is not valid—yet it appears to be the one adopted by the Judicial Conference. Available data reveal that the role of amicus briefs is in reality complex. Across the federal judiciary, government amici are generally viewed as particularly helpful.43 Similarly, “special interest groups are generally well regarded as amici curiae,” but some scholars surmise that the value the Supreme Court places on the brief varies with a group’s reputation for quality arguments and “the extent of their interest in the issue.”44 A majority of judges in one survey found a litigant’s and amicus curiae’s financial relationship “relevant to consideration of a proposed brief.”45 A majority of judges in the same survey viewed briefs offering new legal arguments or insights into the material impacts of a particular outcome on the amicus curiae’s interest as “moderately or very helpful.”46 The Supreme Court appears to view new relevant information absent from parties’ briefing or the record as more helpful than lower courts do.47 Slight majorities of judges affirmed that “the identity, prestige, or experience of the amicus” are “moderately or significantly influential.”48 But a survey of former Supreme Court clerks indicates that, at least at the high court, an amicus’s identity or its counsel can serve as a heuristic for a presumption of the brief’s quality.49 The number of amicus briefs filed, however, appears to have little impact on a case’s outcome except in narrow circumstances.50 The data are unclear as to exactly why some judges find relevant the parties’ financial relationship to an amicus and the amicus’s or its counsel’s identity. If they are in fact playing identity politics and discounting a brief based solely on the identities of individuals or organizations with which the amicus is associated—as the Judicial Conference’s rationale for its proposed rules suggests judges should do—those judges are likely violating judicial ethics and disregarding basic principles of justice. If they are considering those things to see whether the parties and an amicus are complying with Appellate Rules Hearing on Proposed Amendments | February 14, 2025 Page 57 of 251 LEGAL MEMORANDUM | No. 371 heritage.org January 24, 2025 | 7 existing procedural rules, they are acting safely in their judicial role—but this means that the proposed rule changes are not needed. If what occurs at the Supreme Court is representative of anything, however, it suggests that the identity of an amicus or its counsel is a heuristic for the quality of arguments the judge or a clerk can expect in a brief. As former Justice Ruth Bader Ginsburg remarked, in her view, an attorney’s experience “would be a likely barometer of the quality of arguments” in the brief.51 Thus, these and other data suggest that the informational theory more accurately, even if not fully, explains the impact of amicus briefs in the courts. As Professors Joseph Kearney and Thomas Merrill explain in the context of their 50-year survey of cases argued at the Supreme Court: Contrary to what the attitudinal model would predict, amicus briefs do appear to affect success rates in a variety of contexts. And contrary to what the interest group model would predict, we find no evidence to support the proposition that large disparities of amicus support for one side relative to the other side result in a greater likelihood of success for the supported party. In fact, it appears that amicus briefs filed by institutional litigants and by experienced lawyers—filers that have a better idea of what kind of information is useful to the Court—are generally more successful than are briefs filed by irregular litigants and less experienced lawyers. This is consistent with the legal model’s prediction that amicus briefs have an influence to the extent they import valuable new information.52 In sum, although the identity of an amicus or its counsel may serve as a heuristic of the brief’s quality, the value of the brief is—and should be— determined by the brief’s quality and contents. Current Controversy and Efforts by Whitehouse and Johnson In recent years, some have questioned the usefulness and appropriateness of amicus briefs. Senator Whitehouse in particular has been a vocal critic of current practices—decrying the “flotillas of amicus briefs” that in his view amount to nothing more than inappropriate judicial lobbying.53 He has asserted that “[a]nonymously funded, coordinated amicus efforts are just one component of a larger strategy to capture the federal judiciary for the benefit of a self-interested donor class and for Republican Party electoral interests.”54 He has advanced this partisan view despite the fact that one of the principal media reports he cited to support this proposition Appellate Rules Hearing on Proposed Amendments | February 14, 2025 Page 58 of 251 LEGAL MEMORANDUM | No. 371 heritage.org January 24, 2025 | 8 admits that in the seven cases it reviewed, “the conservative parties had [only] a slight advantage, accounting for 50 percent of the amici curiae,” while “46 percent [of amici filed in] support of the liberal parties and about 4 percent filed in support of neither party.”55 Nonetheless, Whitehouse has pursued changes in amicus disclosure rules as part of his larger institutional assault on the U.S. Supreme Court.56 Representative Hank Johnson has joined him as a prominent proponent of those efforts.57 AMICUS Act. One notable effort has been Whitehouse’s and Johnson’s endeavor to impose onerous disclosure requirements on those who wish to file amicus briefs. In 2019, Whitehouse first introduced his Assessing Monetary Influence in the Courts of the United States (AMICUS) Act,58 which he described as seeking “to address the problem of undisclosed judicial-branch lobbying by dark-money interests.”59 Johnson introduced an identical companion bill in the House.60 Under the terms of his proposed act, “any person, including any affiliate of the person, that files not fewer than 3 total amicus briefs in any calendar year [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/federal_court_rules%3Aus-national%3A96746c6a00a4b52d. Public record. Not legal advice.