Numerous observers of modem civil practice, whose views range across a comparatively broad spectrum, consider the 1983 amendment to Federal Rule of Civil Procedure 11 the most controversial revision since the United States Supreme Court promulgated the original Federal Rules of Civil Procedure in 1938.1 Counsel and litigants overused and abused the 1983 modification to Rule 11 by inappropriately stressing the compensatory goal of the proviso and improperly deemphasizing the stricture's deterrence objective. Many judges vigorously enforced Rule 11, often finding violations and imposing burdensome sanctions which frequently included large attorney's fees. This activity of lawyers and parties, as well as courts' implementation, was responsible for considerable unnecessary and expensive litigation that was unrelated to the substantive merits of disputes. The overuse, abuse and judicial application of the 1983 change had detrimental consequences for individuals and groups with relatively little time, money or power, such as those who pursue civil rights actions.
These complications prompted the federal rule revision entities to formulate and propose significant amendments to the 1983 revision of Federal Rule 11. The Supreme Court accepted the recommendation tendered that the 1983 version be substantially amended and, thus, instituted a revision that became effective during 1993. Notwithstanding the unusually expeditious attempt to rectify or temper the difficulties created by the 1983 modification-a purpose which the 1993 alteration has seemingly realized-the experience with the 1983 amendment may have undermined confidence in the rule revision process of judges, counsel and litigants.
Two critical examples illustrate this phenomenon. One is the increasing willingness of the ninety-four United States District Courts to prescribe and apply local practice requirements that depart from the Federal Rules of Civil Procedure. Another is the growing amenability of the fifty states to promulgate and enforce strictures regulating civil practice within their jurisdictions which deviate from the Federal Rules of Civil Procedure.
All of the propositions recounted above mean that the 1983 amendment to Rule 11, the version's deployment by attorneys and litigants, the revision's effectuation by courts, and its modification warrant scrutiny on the twentieth anniversary of the 1983 revision. The article undertakes that effort. This article first descriptively traces the background of the 1983 amendment to Rule 11. Part I emphasizes the difficulties accompanying the revision's invocation by lawyers and litigants, as well as judicial implementation, which made the proviso the most disputed alteration over the civil rules' five-decade history, and which eventually led to its fundamental reform. The article then surveys efforts to modify the controversial 1983 amendment only ten years after the Supreme Court prescribed it. The article next attempts to derive lessons from the experience with the 1983 version. The article concludes by offering numerous recommendations, a majority of which implicate the federal rule revision process.
Margaret L. Sanner & Carl Tobias, Rule 11 and Rule Revision, 37 Loy. L. A. L. Rev. 573 (2004)