Rule 29 of the Federal Rules of Appellate Procedure generally controls who can file amicus curiae briefs in a federal appellate court, when they may do so, and what the briefs must contain. In August 2024, the Judicial Conference Committee on Rules of Practice and Procedure proposed amendments to Rule 29, which, among other things, impose a new requirement that amici must move for leave from the court to file their briefs, even if none of the parties object to the filing. This proposed judicial consent requirement, coupled with the proposed “Purpose” section of the Rule, could radically limit the ability of third parties to file amicus briefs, while simultaneously creating additional, unnecessary work for judges’ chambers.

Currently, Rule 29 allows the authors of amicus briefs to file their briefs with the consent of the court or with the consent of all parties. See FRAP 29(a)(2). The proposed amendments remove the option to file with consent of the parties, leaving judicial consent as the only possible avenue for a prospective amicus. See Comm. on R. of Practice and Proc. of the Judicial Conf. of the United States, Proposed Amendments to the Federal Rules of Appellate and Bankruptcy Procedures, and the Federal Rules of Evidence (Aug. 2024) (committee proposal) at 29. If these recommended amendments are adopted, the appellate courts will be taking the exact opposite approach to amici as the Supreme Court has, which removed all consent requirements for amicus brief filing in 2023, when it amended Supreme Court Rule 37.2.