Public Notice of Pending Appellate Cases:
Brett Kavanaugh's comments about the role of amici and online commentary reminds me of an idea I've occasionally mulled to provide public notice of pending appellate cases. Here's the issue: If amicus briefs or online commentary can help judges decide particularly tricky cases, should the Federal Rules of Appellate Procedure require appellants to formally state the "Questions Presented" by their appeal at some period before the brief is due, or at least before amicus briefs are due, in order to notify potential amici and other commentators that an appellate court is going to resolve those issues?
The problem is that under current law, it's actually pretty hard for the public to find out about interesting and important appellate cases and then to weigh in in a timely way. FRAP Rule 28(a)(5) requires appellants to present "a statement of the issues presented for review" as a section of their opening brief. But those statements are hard to find: they are just part of the brief, not separate documents that are easily found and searchable. And FRAP 29(e) gives potential amici very little time to file briefs after reading about a case that raises an important issue. The rule states: "An amicus curiae must file its brief, accompanied by a motion for filing when necessary, no later than 7 days after the principal brief of the party being supported is filed. An amicus curiae that does not support either party must file its brief no later than 7 days after the appellant's or petitioner's principal brief is filed." It's very difficult to conceive, draft, and submit a brief in such a narrow window (even assuming you learned of the case the day the brief was filed). Unless you learn of the opening brief and you want to file an amicus brief in support of the appellee, you're pretty much out of luck.
Why does this matter? It means that potential amici and other subject matter experts usually don't find out about major litigation until the day the appellate opinion is published. Unless a litigant brings attention to the case, or unless the case has a high profile for another reason, it's actually pretty hard to know which issues are "on deck" in the federal court of appeals. It's true that interested parties can watch district court opinions and look for interesting issues. But only a subset of interesting issues decided at the district court level are appealed: An interested party would need to contact the lawyers in the case and follow the litigation to know whether and when the legal question is likely to come up in the Court of Appeals. This doesn't happen too often.
If it's true that judges benefit from amicus briefs and online commentary about their cases, why not have the commentary before the decision is published rather than after? The problem is simply one of notice; the public can't participate if they don't know the issue is being addressed. One solution could be to require appellants to file a document informing the appellate court of the "Questions Presented" (QP) by their appeal. They could be required to file the QP 30 days before their opening brief is due, and the QP could go into an online database that potential amici and other commentators could easily search to find notable cases that they could comment on or in which they could file amicus briefs. The idea would be to offer public notice that an appellate court is likely to resolve an important legal question.
Of course, most federal appeals do not involve any important legal questions. Most are straightforward if not borderline frivolous. But some aren't, and there should be a way to provide public notice of important cases. I'm not sure if requiring "Questions Presented" is the best way to go; it's not a perfect answer, and perhaps there are better ones. But the existing Federal Rules of Appellate Procedure overlook public notice, and I don't think they should.
The problem is that under current law, it's actually pretty hard for the public to find out about interesting and important appellate cases and then to weigh in in a timely way. FRAP Rule 28(a)(5) requires appellants to present "a statement of the issues presented for review" as a section of their opening brief. But those statements are hard to find: they are just part of the brief, not separate documents that are easily found and searchable. And FRAP 29(e) gives potential amici very little time to file briefs after reading about a case that raises an important issue. The rule states: "An amicus curiae must file its brief, accompanied by a motion for filing when necessary, no later than 7 days after the principal brief of the party being supported is filed. An amicus curiae that does not support either party must file its brief no later than 7 days after the appellant's or petitioner's principal brief is filed." It's very difficult to conceive, draft, and submit a brief in such a narrow window (even assuming you learned of the case the day the brief was filed). Unless you learn of the opening brief and you want to file an amicus brief in support of the appellee, you're pretty much out of luck.
Why does this matter? It means that potential amici and other subject matter experts usually don't find out about major litigation until the day the appellate opinion is published. Unless a litigant brings attention to the case, or unless the case has a high profile for another reason, it's actually pretty hard to know which issues are "on deck" in the federal court of appeals. It's true that interested parties can watch district court opinions and look for interesting issues. But only a subset of interesting issues decided at the district court level are appealed: An interested party would need to contact the lawyers in the case and follow the litigation to know whether and when the legal question is likely to come up in the Court of Appeals. This doesn't happen too often.
If it's true that judges benefit from amicus briefs and online commentary about their cases, why not have the commentary before the decision is published rather than after? The problem is simply one of notice; the public can't participate if they don't know the issue is being addressed. One solution could be to require appellants to file a document informing the appellate court of the "Questions Presented" (QP) by their appeal. They could be required to file the QP 30 days before their opening brief is due, and the QP could go into an online database that potential amici and other commentators could easily search to find notable cases that they could comment on or in which they could file amicus briefs. The idea would be to offer public notice that an appellate court is likely to resolve an important legal question.
Of course, most federal appeals do not involve any important legal questions. Most are straightforward if not borderline frivolous. But some aren't, and there should be a way to provide public notice of important cases. I'm not sure if requiring "Questions Presented" is the best way to go; it's not a perfect answer, and perhaps there are better ones. But the existing Federal Rules of Appellate Procedure overlook public notice, and I don't think they should.