The 1983 amendment to Federal Rule of Civil Procedure 11 has been the most controversial revision in the half-century history of the Federal Rules. Judges have applied amended Rule 11, which requires them to sanction lawyers and parties who do not conduct reasonable inquiries before filing papers, in over 1000 reported opinions, considerably more unreported determinations, and numerous informal contexts. The Rule has engendered much unnecessary satellite litigation and has been implemente4 inconsistently, while attorneys' fees remain the "sanction of choice" for violations. Rule 11 activity has especially disadvantaged civil rights plaintiffs and lawyers, whose lack of resources can make them risk averse. The judiciary has sanctioned civil rights plaintiffs more than any other category of civil litigant; in numerous districts, they were nearly three times more likely to be sanctioned than other litigants. Considerable evidence suggests that these developments have chilled the enthusiasm of civil rights plaintiffs and attorneys.
Evaluators have analyzed very little formal, and virtually no informal, Rule 11 activity in public law litigation apart from civil rights cases. Because environmental lawsuits are a paradigmatic type of public law litigation that contributes substantially to environmental protection and to the development of public law in other fields, it is important to scrutinize Rule 11 activity in environmental cases. This Article undertakes that effort and is one of the first attempts to study informal Rule 11 activity
Part I of this Article briefly describes the developments that led to the significant amendment of Rule 11 during 1983 and explains what the revised Rule requires of attorneys, parties, and the federal judiciary. The second Part evaluates the provision's implementation in environmental litigation since August 1983. This examination finds a low incidence of formal Rule 11 activity in environmental cases and shows that the few courts that have formally applied the Rule were solicitous of the needs of plaintiffs. Indeed, the study reveals striking discontinuities between environmental lawsuits and civil rights actions. Most important, judges have issued only fourteen published opinions in environmental cases which contrasts markedly with the approximately 500 published decisions in civil rights suits.
Because assessors have evaluated a small amount of informal Rule 11 activity and because informal activity has seriously disadvantaged civil rights plaintiffs, this Article analyzes informal Rule 11 activity. The study indicates that judges and environmental defendants have invoked the provision somewhat more frequently in informal, than in formal, situations but that environmental plaintiffs have been disadvantaged substantially less than civil rights plaintiffs. Moreover, this Rule 11 activity has neither dissuaded potential litigants from initiating environmental suits nor prevented parties who filed cases from vigorously pursuing the actions.
Part III of this Article affords explanations for these findings, particularly the dearth of Rule 11 activity, and explores how that paucity informs understanding of the contemporary legal culture in the federal courts. The segment specifically examines the perspectives on environmental litigation of judges, attorneys, and parties who actively participate in such litigation. By refracting Rule 11 through the prism of environmental lawsuits and comparing that experience with Rule 11 activity in civil rights cases, the study enhances comprehension of modern civil litigation.
Carl Tobias, Environmental Litigation and Rule 11, 33 Wm. & Mary L. Rev. 429 (1992)