Effective December 1, 2006, the Federal Rules of Civil Procedure were amended to provide, in pertinent part, as follows:
(a)......A party that files a pleading, written motion, or other paper drawing into question the constitutionality of a federal ... statute must promptly:Fed. R. Civ. P. 5.1
(1) file a notice of constitutional question stating the question and identifying the paper that raises it, if:
(A) a federal statute is questioned and neither the United States nor any of its agencies, officers, or employees is a party in an official capacity......; and
(2) serve the notice and paper on the Attorney General of the United States...either by certified or registered mail or by sending it to an electronic address designated by the attorney general for this purpose.......
(d)....A party's failure to file and serve the notice, or the court's failure to certify, does not forfeit a constitutional claim or defense that is otherwise timely asserted.
Needless to say this raises legal and logistical questions for the practitioner who wishes to assert a defense based on the unconstitutionality of the RIAA's damages theory.
I am not in a position to answer any of them, or to even provide an exhaustive list of the questions at this time. The purpose of the post is just to ask a few of them, and to ensure that lawyers and litigants reading my blog are aware of this provision.
Here are questions we need to ask:
1. Are we questioning the constitutionality of the statute or the RIAA's interpretation of the statute?
2. If we are questioning the statute, are we questioning it when we assert the defense in our answer, or are we merely preserving the right to question the statute at the trial of the merits?
3. Can the issue be determined in a particular case in the abstract, at the pleadings stage, or only in the context of a particular fact pattern?
4. Since there is no forfeiture of the constitutionality defense by reason of failure to file and serve the notice of constitutional question, what is the effect of omitting to file and serve the notice?
5. Is there a way to frame the defense so that it doesn't necessarily require a notice?
6. If the practitioner has interposed a defense which clearly calls for a notice of constitutional question, might there nevertheless be reasons to refrain from filing and serving the notice at an early stage of the litigation?
7. Does the rule militate against the principle that constitutional questions should only be reached when their resolution is unavoidable?
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