Friday, November 30, 2007

Practice Tip: Notice of Constitutional Question when Filing Pleading Asserting Unconstitutionality of Statute

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:
  (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.
Fed. R. Civ. P. 5.1

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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Anonymous said...

The argument seems to come down to the following questions:

1: Are statutory damages punitive in every effective regard when they bear no reasonable relationship to any actual loss or damage?

2: Does Congress have unlimited power to set statutory damages under the Constitution?

3: Even if statutory damages are not ruled punitive simply because of their excessive nature, can they still be unconstitutional?

SCOTUS has ruled that punitive damage awards cannot be excessive. The Ten Times guideline is the law of the land. That much is clear. The RIAA argues that their untested statutory damage amounts don't meet this requirement. It will probably take SCOTUS to fully sort this out.


Anonymous said...

It seems to me that the rule clearly applies when challenging the statute's facial constitutionality. Does the rule apply equally to "as applied" constitutional challenges, which these challenges are in almost every case (as they must be)... ?

Also, the recent brief of the USDOJ seems to take a lot of wind out of the sails of the Gore/State Farm argument, by asserting the Williams standard instead. That gives appellate courts a convenient escape hatch to avoid the work of actually figuring out whether these awards are constitutionally infirm.