Civil Rights Foe or Frivolous Litigation Enabler? An Empirical Study of Rule 11 Practice Under the 1983 and 1993 Version

41 Pages Posted: 8 Jun 2010

See all articles by David B. Owens

David B. Owens

affiliation not provided to SSRN

Date Written: June 7, 2010

Abstract

The claim that frivolous litigation is an “epidemic” plaguing our civil justice system strikes a chord with many Americans. Legal ethicists and other academics have responded by emphasizing that incidents like the McDonald’s coffee case are distorted by sensationalist media coverage and, more fundamentally, that they are not representative of civil litigation. Against the backdrop of this persistent social controversy, Rule 11 of the Federal Rules of Civil Procedure has been twice significantly amended in the last 30 years - in 1983 and 1993. The most recent amendments in 1993 did not quell political concern about frivolous litigation. Indeed, as recently as 2005 Congress sought to circumvent the normal rule revision process via the Advisory Committee and resurrect something significantly similar to, though harsher than, the more strict 1983 version of the Rule. In this essay I argue that the discourse surrounding the Lawsuit Abuse Reduction Act of 2005 demonstrates the need to understand how the Rule operates in practice. But, to date, no study has compared case data under both of Rule 11’s recent instantiations. We simply lack the information to make an informed policy judgment on this ongoing dispute. This essay aims to help fill that gap and, accordingly, conducts a novel empirical study of the Northern District of California and its experience under both sets of rules. My findings indicate that the 1993 amendments have well served their intended purpose of deterring both frivolous litigation and needless collateral litigation over sanctions, without opening the courthouse doors to a flood of baseless suits. Most importantly, these findings provide new information for the broader, ongoing, policy disputes over how to regulate frivolous litigation in federal court, and, suggest against returning to a more draconian form of the Rule.

Keywords: Civil Procedure, Empirical Studies, Rule 11, Frivolous Litigation, Civil Rights, Lawsuit Abuse, Tort Reform

JEL Classification: K41, k42

Suggested Citation

Owens, David B., Civil Rights Foe or Frivolous Litigation Enabler? An Empirical Study of Rule 11 Practice Under the 1983 and 1993 Version (June 7, 2010). Available at SSRN: https://ssrn.com/abstract=1622061 or http://dx.doi.org/10.2139/ssrn.1622061

David B. Owens (Contact Author)

affiliation not provided to SSRN ( email )

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