Judge Rudofsky's unusual order, entered in every pending civil case on his docket in the Eastern District of Arkansas, reflects his view that amicus briefing is underutilized at the trial court level despite its potential value. The judge explained that district courts regularly handle cases involving 'really serious issues of constitutional law or statutory interpretation that are not directly controlled by binding precedent,' where outside perspectives could prove valuable.
As Rudofsky wrote, parties in complex cases '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.' The judge said his 'judicial process and my decisions would likely benefit from amicus briefing on the original public meaning of the disputed provision or provisions,' including historical context, corpus linguistics analyses, and structural arguments that might not appear in the parties' briefing.
The order includes an unprecedented incentive for junior attorneys: '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.' Judge Rudofsky noted that amicus briefing 'is also 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 establishes strict procedural requirements for amicus participation. Amicus briefs must be filed within three days of the principal brief by the party they support, with a 20-page limit unless the court grants leave for additional pages. The judge emphasized that parties 'may not in any way fund the amicus brief or the drafter's attendance at oral argument,' ensuring independence of the outside perspectives.
Judge Rudofsky's approach breaks from traditional practice where amicus briefs are primarily filed at the appellate level. The order signals his belief that district courts, as the primary factfinders and initial interpreters of law, could benefit significantly from the broader perspective that amicus briefs provide, particularly in cases involving novel legal questions or complex statutory interpretation.
The standing order will automatically be entered in all future civil cases over which Judge Rudofsky presides, institutionalizing his invitation for amicus participation. The judge also indicated he 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.
This innovative approach could influence how other district judges handle amicus briefing and may encourage more robust participation from legal organizations, advocacy groups, and law firms seeking to provide expertise on complex legal issues at the trial court level. The guaranteed oral argument time for junior lawyers adds an educational component that could make amicus briefing more attractive to legal organizations.