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October 04, 2004

Strong Rule 11: judges liked it

The National Law Journal, in its coverage of the effort to restore a strong Rule 11 (Marcia Coyle, "House Votes to Bring Bite Back to Rule 11", National Law Journal, Sept. 27; see Sept. 15) has a couple of points worth noting:

* Nowadays the official Federal Judicial Conference, in common with most of the legal establishment, bad-mouths the old (1983-1993) Rule 11, primarily on the grounds that it encouraged overuse of sanctions motions with resulting wasteful satellite litigation. However, at the time Congress pulled the teeth from the old rule in 1993 (following a concerted campaign which included, though it was not limited to, organized plaintiff's counsel) the rule was strongly supported by the federal judges who enforced it:

[Rep. James] Sensenbrenner, both on the day his committee approved the bill and on the day the House finally endorsed it, pointed to a 1991 study by the judiciary's research arm, the Federal Judicial Center, as evidence that the 1983 version was preferable.

At that time, 751 federal judges found that an overwhelming majority of them, 95 percent, believed Rule 11 did not impede development of the law; 72 percent believed that the benefits of the rule outweighed any additional requirement of judicial time; 81 percent believed that the 1983 version of Rule 11 had a positive effect on litigation in the Federal courts; and 80 percent believed that the rule should be retained in its then-current form," Sensenbrenner told his House colleagues.

"That is what the judges who were on the bench at the time this rule was in effect said."

Meanwhile, one of the most prominent critics of the older rule, Prof. Georgene Vairo of Loyola-Los Angeles Law School, suggests that the spirit of the older rule lives on in some significant measure and that this may be not such a bad thing:
"most people agree and most judges agree the '83 version increased everybody's consciousness about the need to impose sanctions in appropriate cases," said Georgene Vairo of Loyola Law School, Los Angeles. ... "The rule is virtually as potent today as it used to be, not to mention that you have other tools out there, all sorts of things to sanction lawyers who are bad, and judges are now much more attuned to using those tools," she added.

Posted by Walter Olson at 12:08 AM | TrackBack (1)

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