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The ABA and Rule 11

This month's ABA Journal (July, 2005) contains an article (page 62) describing the actions by the ABA Governmental Affairs Office to oppose the Lawsuit Abuse Reduction Act.

I write a little bit about LARA in Out of Balance and in recent posts have praised its approach to reinstating the original, 1983 version of Rule 11.

Although I'm an ABA member I find myself, more often than not, disagreeing with its stance on political issues. I must reluctantly, however, grant the ABA some credit for opposing those provisions of the LARA that would seem to over-reach and violate principles of federalism.

Section 3 of the LARA provides:

In any civil action in State court, the court, upon motion, shall determine within 30 days after the filing of such motion whether the action substantially affects interstate commerce. Such court shall make such determination based on an assessment of the costs to the interstate economy, including the loss of jobs, were the relief requested granted. If the court determines such action substantially affects interstate commerce, the provisions of Rule 11 of the Federal Rules of Civil Procedure shall apply to such action.

While a state law that required the courts in that state to undergo such a process might be a healthy reform, allowing Congress to stipulate procedure in state courts would seem to run roughshod over state prerogatives.

I would be happy to be dissuaded from this view, however. If you can make the case that Section 3 of the LARA would be constitutional, please drop me a line.



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.