Will Baude

I think what would be at stake is, suppose a state said, you can file, you can docket a claim with just a complaint, but then it can be dismissed unless it also contains an affidavit.

I think that would satisfy Justice Jackson because it's no longer valid until Rule 3.

But it would not satisfy... You can file and dock a suit with just a complaint.

It will be dismissed upon a motion to dismiss if it's not also accompanied by an affidavit of merit.

I think that version of the statute would satisfy Justice Jackson's test because there wouldn't be a Rule 3.

Because it's not conflicting with Rule 8.

It's just an extra thing that doesn't conflict.

It certainly doesn't conflict with Rule 3 because we've let you dock the suit.

And then at that point, she'd be more generous about Rule 8.

And she'd say, well...

Relate just says, this is how you can dismiss a suit for failure to state a claim, but it's not exhaustive.

It leaves open the possibility there are other ways to dismiss the suit, like failure to contain an affidavit, I guess.

Yeah.

And almost like a... I don't totally know what that means.

Almost like constitutional avoidance or rules-enabling act avoidance as applied to the rules, right?

And I think she's right that there is tension between the approach taken in Shady Grove and now Burke v. Troy and the approach taken in Gasparini.

So can I ask one other substantive question?

Is this approach right?

Yeah, and it's maybe.

So the Rules Enabling Act says, 28 U.S.C.