The Advisory Committee on the Civil Rules recently proposed that the Supreme Court and Congress amend Federal Rule of Civil Procedure 11. 1 The Rule, as revised in 1983, has been the most controversial amendment in the half-century history of the Federal Rules. Judges have inconsistently applied the 1983 revision, and it has engendered much expensive satellite litigation. Considerable evidence suggests that Rule 11 activity has chilled civil rights plaintiffs and attorneys. These difficulties led the Advisory Committee to initiate a study of the Rule in August of 1990, to solicit written public comments on its operation which were due that November, and to hold a public hearing on the Rule in February of 1991.
The Committee's decision to recommend changes in Rule 11 is important for many reasons. The Rule's language, its judicial implementation, and its invocation by lawyers and litigants have been extremely controversial. Rule 11 has sparked intense debate among the bench, the bar, and writers and has prompted five major studies of its implementation. Judges have issued approximately 2,000 reported opinions, thousands of unreported determinations, and many additional unpublished decisions. There has also been much informal Rule 11 activity. Indeed, the Rule's influence is so pervasive that federal court practitioners ignore it at their peril.
The amendment process also is significant because the Advisory Committee's proposal is certain to provoke lively debate. Moreover, reexamination of Rule 11 is one of the first experiments with the new rule revision procedures that Congress prescribed in 1988 to enhance public scrutiny of the process. The Committee deliberations warrant documentation because its "intent" in recommending modification will inform application of the amendment that the Supreme Court and Congress promulgate. It is important, therefore, to evaluate the suggestions for change and the decisional processes underlying them. This Article undertakes that effort.
Part II examines the developments that led the Advisory Committee to reconsider Rule 11 and the public responses to its Call for Comments on the Rule. Part III descriptively analyzes the specific changes that the Committee recommended, provides the rationales afforded for them, and evaluates their implications. This Part next assesses the proposal in light of the problems that the current Rule has posed for judges, attorneys, and parties since the 1983 revision. The proposal's responsiveness remains unclear in part because its efficacy depends on the courts' exercise of their discretion in implementing new Rule 11.
Part IV provides suggestions for the future. It finds that the significant complications which existing Rule 11 has presented, uncertainty whether the proposal will ameliorate them, and the new problems that it will create warrant greater change than the Committee has recommended. Those with rule-amending responsibility, therefore, should seriously consider rejecting the proposal or revising it more substantially. If the rule revisors disagree with these suggestions, however, they should follow the recommendations for change in particular parts of the proposal when adopting a new version of Rule 11.
It is important, therefore, to evaluate the suggestions for change and the decisional processes underlying them. This Article undertakes that effort.
Carl Tobias, Reconsidering Rule 11, 46 U. Miami L. Rev. 855 (1992)