Document Type

Article

Publication Date

1988

Publication Information

63 Notre Dame L. Rev. 788 (1988).

Abstract

The 1983 amendments to the Rules of Civil Procedure arose from concern over the flood of litigation in recent years and its high costs to both litigants and the court system. Although the causes of this litigation explosion and the remedies are both many and complex, the pretrial stage of litigation and the standards governing attorney responsibility were considered major contributors to the problem and prime areas for reform. The drafters of the 1983 amendments sought to streamline the litigation process by increasing judicial oversight and deterring abusive or dilatory tactics by the bar. Some of the most significant changes in the amendments were made to Federal Rule of Civil Procedure 11. Rule 11 requires the signature of the attorney, or if unrepresented, the party, on all papers filed with the court as a certification of the factual and legal merit of the filing formed after prefiling investigation.

The impact of Rule 11 on constitutional litigation has been a subject of great controversy. It has been widely suggested that the Rule will have a decidedly disproportionate impact on this area of law and therefore will chill ardent advocacy with respect to constitutional rights. It is not the purpose of this paper to assess whether Rule 11 has had that effect. Indeed, there are some indications that it is too early to measure the impact that Rule 11 has had on any particular area of law. Nevertheless, the concern that has been expressed has been thoughtful and measured in tone and requires that we examine thoroughly the possibility of such an undesirable impact on serious and thoughtful efforts in constitutional litigation that might precipitate such a disproportionate impact and attempt to avoid such pitfalls. The Rule was not intended to have such an effect. Rule 11 was meant to civilize the litigation process, not to kill it. Rule 11 was meant to be an even-handed device aimed at curbing litigation abuses, nothing more.

Comments

Reprinted with permission of the Notre Dame Law Review.

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