48:3 The Case Against the Lawsuit Abuse Reduction Act of 2011



On March 10, 2011, Lamar Smith, Chairman of the House of Representatives’ Committee on the Judiciary, introduced H.R. 966, the Lawsuit Abuse Reduction Act (Sen. Charles Grassley, the ranking Republican member of the Senate Judiciary Committee, sponsored an identical measure). Animated by concern over rising costs and abuses in federal civil cases, the bills stiffen penalties against lawyers who file sanctionable papers in federal court by legislatively amending Rule 11 of the Federal Rules of Civil Procedure, the general certification and sanctions standard for federal civil cases. Aware that the political winds are pointing in LARA’s favor, my objective in this short paper is to articulate the strongest arguments against the proposed legislation. This paper expands significantly on prepared testimony I gave by invitation to a House committee regarding the legislation. My hope is that this work will make a valuable contribution to the public debate regarding this proposed, significant reform of federal practice. Briefly summarized, the paper proceeds as follows. Part I argues that the proposed legislation would not only fail to resolve the problems asserted to justify its passage but would actually increase costs and delays in federal court and foster greater litigation abuse. In Part II, I argue that there is no empirical support for the assertion that the 1993 amendments to Rule 11 can be blamed for whatever problems do exist today with federal civil litigation. Part III makes the case that LARA’s passage is not needed because there are many available alternatives for managing federal civil litigation costs and abuses. Finally, in Part IV, I demonstrate that the assertions made by LARA’s sponsors regarding the extent of costs and abuse in federal civil litigation are greatly exaggerated. Although this latter argument may have little traction in public debates over the legislation, it may be more effectively invoked in support of the institutional argument that this sort of procedural reform is best considered through the more deliberative Rules Enabling Act process. That is, reasonable legislators may be convinced that judicial rulemakers can be relied upon, as they have been for many years, to monitor the state of civil litigation and to consider reforms of the rules, as necessary, to control litigation costs and abuses.