The order, entered in every civil case currently pending before Judge Rudofsky in the Eastern District of Arkansas, represents an uncommon embrace of amicus participation at the trial court level. Judge Rudofsky explained that while most district court cases don't warrant amicus briefing, 'there are a healthy number of cases each year that do,' particularly those involving 'really serious issues of constitutional law or statutory interpretation that are not directly controlled by binding precedent.'
The judge outlined his reasoning for encouraging such participation, noting that parties 'often do not have the necessary time or economic resources to devote to full analyses of the text and history of the provision or provisions at issue.' As Judge Rudofsky wrote, 'my judicial process and my decisions would likely benefit from amicus briefing on the original public meaning of the disputed provision or provisions,' including 'important historical context, in-depth corpus linguistics analyses, or detailed structural arguments that might not make it into the parties' briefing.'
To incentivize participation from younger practitioners, Judge Rudofsky promised that 'anyone who is the principal drafter of an amicus brief on either a dispositive motion or a motion for preliminary relief in one of my cases will be guaranteed at least ten (10) minutes of oral argument time so long as the person has been a lawyer for fewer than seven (7) years.' The judge described amicus briefing as 'a great way for more junior attorneys at law firms, non-profits, corporations, and government entities to gain valuable experience, make a good reputation for themselves, and get some oral argument time.'
The order sets specific procedural requirements for amicus participation. Briefs supporting a particular party must be filed within three days of that party's principal brief, while neutral amicus briefs must be submitted within three days of the opposition's principal brief. The judge limited amicus briefs to 20 pages unless the court grants leave for additional pages, and he noted that parties 'may not in any way fund the amicus brief or the drafter's attendance at oral argument.'
Judge Rudofsky's approach reflects his view that amicus briefs can be more influential at the district court level than in appellate courts. He explained that his perspective on 'the desirability of amicus briefing at the district court level' has 'only grown stronger' since taking the bench, having previously wondered as a practitioner 'why amicus briefs were generally not filed at the district court level.'
The order also establishes a framework for party responses to amicus submissions. As Judge Rudofsky wrote, 'the Court will look favorably upon a request by any party to respond to an amicus brief in writing,' and parties retain the right to respond to amicus arguments during oral argument.
The standing order, dated March 21, 2023, directs the clerk to enter it in every pending civil case and to automatically include it in future cases upon the filing of a complaint. This systematic approach suggests Judge Rudofsky intends to make amicus participation a regular feature of significant litigation in his courtroom, potentially setting a precedent for other district judges seeking broader input on complex legal questions.