Will Baude

The sidecar would be a new version of this statute that says, in addition to the affidavit of merit...

And separate from any requirement that you file an affidavit of merit, as a matter of law, no claim can succeed on the merits if it's not accompanied by an affidavit of merit or something.

I think you just describe it as a merits rule as a matter of law, then rule eight would pick it up and enforce it as a rule of substance.

And I think several people find this too.

A lot of states have these kinds of laws for what are called anti-slap laws.

SLAP stands for Strategic Lawsuit Against Public Participation.

There are various kinds of like libel and other liability claims against people exercising their First Amendment rights that try to not put the speaker through the burden of litigation and give you a way to dismiss the claim very quickly at the outset.

Sometimes give you attorney's fees, you know, so you can like leave nasty up reviews and not have to worry that the kebab store will file a frivolous claim against you.

And a lot of them may fail this test too, which is... Yeah, we don't have a Supreme Court case on that.

No, there's famously a split on this.

And I think the standard assumption is that this case may resolve the split against the anti-SLAPP laws.

Although, you know, again, each law is written a little bit differently.

Some do have a little bit more of a sidecar aspect where you try to say, like...

You try to have a substantive rule and a procedural rule so that the substantive rule can still be enforced in federal court.

So I assume that there are smart tort reform people at like the ALEC or whatever think tank it is that helps get these things passed.

They're thinking about how to draft a model malpractice reform law and model anti-slap law that still complies with the, you know, Hanna versus Plummer and Burke versus Choi.

But it's just like a trickier problem than it might seem.

So if a state says you have to file both a complaint and a shumplaint, and the shumplaint has to contain some extra stuff, should we read that as violating Rule 8's requirement but has to be in the complaint because they're basically requiring extra stuff to be in the complaint?

Or should we read it as violating the Rule 3 requirement that all you need is a complaint?

Do you understand what is at stake in this disagreement?