A Reflection on Rulemaking: The Rule 11 Experience

Paul D. Carrington & Andrew Wasson, published in Loyola L. Rev. (2004)

The experience with Rule 11 is a useful reminder of what we know but often forget about the effectiveness of law.  It offers disproof of the nihilist view of legal texts sometimes voiced in the past by extreme Legal Realists or their successors among the Crits, and also of the contrary belief sometimes voiced by Originalists and their positivist kin that the conduct of judges can be, should be, or generally is controlled by the commands of lawgivers, whoever they might be.

The lawgivers who made Rule 11 were numerous.  At all levels, they worked from a premise associated with the 18th century Enlightenment that the aim of civil adjudication is to apply the command of substantive lawgivers who make constitutions, statutes, and administrative rules to real events as best they can be perceived.  That is a very tall order, and procedure rules are therefore written in elastic terms crafted to leave the judges in any particular case free to do substantive justice unimpeded by unnecessary ceremonies adding to the inevitable costs and delays of dispute resolution and distracting parties and judges from the correct goal.  But that, too, is a very tall, perhaps even a taller, order.  Parties to disputes and their lawyers often do not want the law correctly applied to the true facts.  In an enlightened world, therefore, it is necessary to have procedures to prevent cost, delay, subterfuge, and other depravities.  But procedures designed to serve that benign purpose have a way of becoming themselves the instruments of cost, delay, subterfuge, and other depravities, as Rule 11 seemed to many to have done.  Alas, pity the poor procedural lawgivers whose work is forever the object of subversion by crafty professionals.

The 1983 version of Rule 11 was designed to address a perceived social problem, i.e. that there were too many civil proceedings and too much motion practice in federal courts and that this costly excess was the result of neglect, indifference, or misuse of procedure by counsel.  Whether there was or is in fact such a problem remains uncertain.  There had been an increase in civil filings in the decade of the 70s, but much of it was explained by changes in substantive law, notably in the field of civil rights.  There was a measurable increase in filings in contract disputes seemingly reflecting an apparent tendency of businesses to take their disputes to court more frequently than they had in the past.  This might be plausibly explained by the entrenchment in the third quarter of the 20th century of the practice of business litigators of billing for their services by the hour, for this created a strong incentive to leave no stone unturned and no motion unmade.

In addition to these realities, there was a growing perception of Corporate America that it was besieged by tort claims.  There was very little evidence that this was so, but the perception would lead to a series of reform initiatives, including the first President Bush�s Competitiveness Council, Senator Biden�s Civil Justice Reform Act, the Securities Class Action Reform Act, and numerous proposals still pending.

Thus, whatever the realities or their causes, there was in 1980 a perception growing in the minds of some federal judges and some corporate executives and their lawyers of a problem in need of a solution that arose from the liberality and tolerance embedded in the 1938 Federal. Rules.  Existing law allowing suits for abuse of process and federal law seeking to deter vexatious litigation were widely deemed to be inadequate to discourage abuse of a system so flexible.

The 1983 version was a response to those concerns.  The rule was crafted in the Advisory Committee on Civil Rules of the Judicial Conference of the United States.  That committee�s recommendation was approved by the Standing Committee on Rules and forwarded to the Judicial Conference, which approved it and recommended it to the Supreme Court.  In accordance with the Rules Enabling Act, the Court promulgated the new rule, subject to the power of Congress to derail it by action taken within six months.  It was not derailed and so became law on May 1, 1983.  Throughout this lengthy process, there was limited expression by the bar of either interest or mistrust.

It appears that the revised rule did have the effect of causing some lawyers to do a bit more work before filing a claim or motion in federal court.  While many lawyers told the American Judicature Society that they had counseled a client not to file suit in light of Rule 11, the impact on actual filings was not evident.  The real effect of Rule 11 in that respect remains unknown.  And how much additional cost to prospective defendants or to the judicial system was saved or borne because those cases were not filed or those motions not made is even more a mystery.  In any case, the 1983 revision gave rise to a chorus of complaints.  Among these were that the new rule (1) gave rise to a new industry of motion practice adding to cost and delay; (2) stimulated incivility between lawyers; (3) was aimed at plaintiff�s counsel, leaving defense counsel unrestrained in the assertion of unfounded denials; and (4) encouraged judges to indulge their occasional personal animus toward individual lawyers, sometimes by belated sua sponte rulings coming after a dispute seemed to have been resolved.

The chorus steadily raised its voice.  Rule 11 became a celebrated issue.  That is something a good procedure rule should not become.  Three excellent books by distinguished authors sought to state or restate the law of Rule 11.  And there were scores of law review articles.  No other single procedure rule in the nation�s history was ever given so much critical attention.

An extraordinary quantity of empirical data was gathered to illuminate the use to which lawyers put the rule, but of course the investigators could not detect other than impressionistically whether there were filings or motions deterred, or whether there were real net cost savings to the courts or parties.  The studies, excellent though they were, tended to illustrate a point made by Maurice Rosenberg, himself an empiricist and long a member of the Advisory Committee on the Civil Rules, who frequently affirmed that there are two kinds of empiricism in law, the sort causing lawyers to sniff that the obvious had been revealed, and the other causing lawyers indignantly to reject the conclusions as contrary to their experience.  One of the better studies suggested that the rule was working as intended to deter frivolous claims and motions, and that in the opinion of many lawyers posed no serious problems, but one could not doubt that there were many lawyers angered by the operation of the rule.

The Committee sent out a call for comments on the rule.  A flood of comments were received, almost surely the largest supply of criticisms and suggestions in the fifty-odd years of the Committee�s existence.  The Committee deliberated for two years and came up with the compromise solution of the safe harbor.  A draft was circulated, and more comments were received.  Hearings were held.  Revisions were made in response to the comments.  A draft was recommended to the Standing Committee.  The Standing Committee debated the draft at length and made further revisions.  The committees enumerated the reasons for yet another new rule:

(1) Rule 11, in conjunction with other rules, has tended to impact plaintiffs more frequently and severely than defendants; (2) it occasionally has created problems for a party which seeks to assert novel legal contentions or which needs discovery from other persons to determine if the party's belief about the facts can be supported with evidence; (3) it has too rarely been enforced through nonmonetary sanctions, with cost-shifting having become the normative sanction; (4) it provides little incentive, and perhaps a disincentive, for a party to abandon positions after determining they are no longer supportable in fact or law; and (5) it sometimes has produced unfortunate conflicts between attorney and client, and exacerbated contentious behavior between counsel.

Their revision was in due course promulgated by the Supreme Court, but not without a dissenting opinion by Justice Scalia.  The revision became law on May 1, 1993.

Meanwhile, however, as these deliberations were nearing completion, the Supreme Court decided Chambers v. Nasco.  In that case, the Court held that a district court has inherent power in the absence of authorizing texts to punish lawyers and their clients for persisting in the presentation of a frivolous, indeed fraudulent, defense sometimes in the face of orders of the court.  It was observed that the conduct punished included much that was not reached by Rule 11 because it was not reflected in pleadings or motions nor was it entirely within reach of the contempt power.  The Court concluded that neither Rule 11 nor the statute forbidding lawyers to engage in vexatious behavior was applicable to much of the misconduct, but that this should not preclude a court from doing whatever it takes to prevent abuse.  The Court urged judges to use Rule 11 when applicable, but not to be constrained by it in necessitous circumstances.  In so holding, the Court relied in part on its earlier decision upholding the power of the district court to dismiss a claim for failure to prosecute even though the defendant had made no motion to dismiss, notwithstanding the explicit language of Rule 41(b) requiring such a motion as a precondition to dismissal.

As the Reporter for the Civil Rules Committee laboring over the final draft of Rule 11 as the opinion in Chambers came down, the senior author of this article was moved to ponder the question whether such rules are worth writing.  If district courts are always free to do the right thing, why fuss over the text of mere procedure rules that will themselves be the subject of further disputation?  It seemed for the moment that perhaps the legal nihilists had it right, that life tenured judges may and will do what they want unconstrained by mere words in legal texts.

But the experience with Rule 11 does provide an answer to the unsettling question suggested by Chambers.  The text of the1983 version of the rule did serve to modify the behavior of judges in ways at least some of which were those intended by the lawgivers.  And so did the 1993 version.

Professor Danielle Hart has recently published an informative account of that experience.  She calls attention to several conflicts in the interpretation of the rule by United States Courts of Appeals.  It seems that the courts are not in agreement on the urgency of the requirement stated in the rule that a motion for sanctions must be made separately.  They are also not in agreement on the need for strict enforcement of the 21-day safe harbor provision.  And there has been disagreement as to the strict enforcement of the timing requirement applicable to motions under the rule.  Some courts have been more tolerant than others regarding compliance with the rule�s provisions regarding the form of a court�s Rule 11 order.  Finally, the courts of appeals have not applied the same standard in their reviews of sanctions orders but have redefined �abuse of discretion� differently.  In addition, Professor Hart found numerous intracircuit conflicts. 

These are, no doubt, imperfections in the text and in the administration of the rule.  They are, however, the kinds of imperfections we must expect in an enlightened system of judicial administration seeking to decide cases on the merits without unnecessary cost or delay and in accordance with a text intended to provide a structure to the process of dispute resolution without distracting the parties and the judge from the merits.

There was specific concern expressed with regard to the 1983 version of the rule that it was unevenly enforced with the substantive consequence that civil rights plaintiffs were disadvantaged.  There was some evidence that they were somewhat more frequently the target of Rule 11 motions, and other evidence that when targeted, they were more likely to be sanctioned.  On the other hand, there was an explanation tendered that the category of employment discrimination plaintiffs contains a higher than normal concentration of desperate or irrational claimants, reflected perhaps in the fact that the number of plaintiffs proceeding pro se is larger in that group than most, and that their lawyers are often poorly informed because they have such limited access to the evidence.  It was also obvious that many lawyers representing civil rights plaintiffs are low on resources, and therefore more vulnerable to, and more intimidated by, the threat of sanctions.

To the extent that this uneven effect was a consequence of the 1983 rule, the modifications in 1993 that were intended to alleviate the problem were the safe harbor provision protecting counsel from sanctions if the sanctionable filing is timely withdrawn after its defects have been point out by the adversary, and the preference for non-monetary sanctions.  These protections did not altogether protect the compliant party or counsel if the judge undertook to impose a sanction sua sponte.  It is not possible on the present state of our knowledge to say whether the problem for civil rights plaintiffs as perceived under the 1983 rule abides under the 1993 version.  Professor Hart perceives that this has been an insufficient remedy and that civil rights claims continue to be deterred.  As noted, they may be the category of civil cases most likely to be affected by any rule intended to deter filing unwarranted claims.

At the end of the day, there is no way to eliminate the possibility of uneven enforcement by a mere legal text, especially one written in a procedure rule that must, in the spirit of Rule 1, leave room for judges to do the right thing in light of the law and the facts as they are best able to perceive them.  Necessarily, room to do the right thing must by definition allow some room for a judge to do the wrong thing.  If Rule 11 were stricken altogether, the problem that some litigants appear to be treated differently than some others with respect to their procedural entitlements would be magnified.  As Chambers v. NASCO affirmed, power and discretion would continue to reside in the judge and on a much larger scale.  But the discretion to impose sanctions on lawyers would even then not be unfettered, nor would there be an absence of legitimacy to the decisions so long as they were within a compass crudely fashioned from the reactions of appellate judges.

Nevertheless, as the Court in Chambers acknowledged, discretion to do the wrong thing can be cabined by an appropriate text.  This is so because most judges, most of the time, do not wish to present themselves as omnipotent, but seek the moral shelter afforded by their adherence to the commands of lawgivers.  It is that impulse that gave rise to the institutionalization of the opinion of the court.  In its 1938 form, Rule 11 afforded no such shelter for judges inclined to deter abuse.  In its 1983 form, perhaps it afforded too much.  Possibly, at least for this time and place, the 1993 version has it about right.


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