Will Baude

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.

2072, says such rules shall not abridge, enlarge, or modify any substantive right.

And John Hardy Lee argued, as I understand it, that he was the law clerk on Hannah versus Plummer, right?

He argued that what was the substantive right was partly a question of state law.