The recent amendment of rule 11 may well have engendered more controversy than any other revision since the Federal Rules of Civil Procedure were first promulgated one-half century ago. The new version essentially requires that judges impose sanctions on lawyers and parties who fail to conduct reasonable inquiries before filing court papers. The amendment's adoption was prompted by increasing concern about abuse of the litigation process and about the "litigation explosion" -the perception that unprecedented numbers of civil cases were being filed and that too many lacked merit. Proponents have hailed the revised rule as the savior of the civil justice system for limiting litigation abuse. Critics have denounced the new provision for chilling valid claims and for generating excessive litigation which is unrelated to the merits of lawsuits, such as that seeking attorney's fees for alleged rule 11 violations.
Given the controversy, United States District Judge William Schwarzer's suggestions for improving the amendment's application in his recent Commentary appear so responsive to what has been considered problematic that the recommendations could well defuse the controversy or at least dictate the terms of much relevant debate in the foreseeable future. Many of the suggestions in the Commentary are cogent and warrant implementation and, if heeded by federal courts, should have salutary effects which even vociferous critics of the rule's prior enforcement can applaud. Judge Schwarzer also is careful to observe that his central prescription-that the federal judiciary shift its focus from the merits of disputes to the reasonableness of parties' prefiling inquiries in ascertaining whether rule 11 has been violated-"will not necessarily make a difference in every case, nor will it solve every problem.
I am concerned that Judge Schwarzer's suggestions will neither make sufficient difference nor solve enough problems in civil rights cases.The attractive features of his recommendations may distract attention from recently compiled information indicating that the rule's application has adversely affected the individuals and attorneys who pursue civil rights actions. Judge Schwarzer also undervalues the amendment's detrimental and chilling effects on these parties and litigants, so that his proposals are insufficiently attentive to the realities of civil rights litigation. Moreover, the assumptions made throughout his Commentary and the tone in which it is cast can leave the impression that any difficulties which have attended rule ll's enforcement to date can be remedied by implementing Judge Schwarzer's suggestions. Furthermore, I fear that certain of the significant prescriptions will be responsive in ways most important to civil rights plaintiffs and practitioners only if augmented.
first describe briefly Judge Schwarzer's recent Commentary. Because his paper resembles much writing on, and judicial enforcement of, the amendment by failing to focus on its significance in civil rights cases, I critically analyze how implementation has disadvantaged civil rights litigants and attorneys during the initial half-decade of experience. That review helps to illuminate difficulties in the descriptive and prescriptive aspects of Judge Schwarzer's account, which are then evaluated through the prism of civil rights litigation. This assessment shows that numerous suggestions for change, if followed by the federal courts, will be solicitous of the needs of civil rights plaintiffs and lawyers but that important prescriptions will not afford significant improvement unless supplemented by considering integral to rule 11 decisionmaking factors, such as the resource constraints of civil rights litigants and the inherent characteristics of civil rights suits. Accordingly, I analyze the risks and costs of attaining judicial application that would be sufficiently responsive to them, finding both more substantial than the benefits of rule 11 's continued broad implementation in civil rights cases. I conclude, therefore, that severely curtailed enforcement or repeal or amendment of the rule would be preferable.
Carl Tobias, Rule 11 and Civil Rights Litigation, 37 Buff. L. Rev. 485 (1989).