Under the Rules Enabling Act, the Judicial Conference is responsible for proposing new rules and amendments to the Supreme Court, which are then subject to approval by the Court and become law if approved and not subsequently vetoed by Congress. The conference took note of the explosion of sanctions litigation under the 1983 rule. Several studies were conducted; comments were obtained from the bench and bar; and hearings were held. In 1992, the Judicial Conference Advisory Committee on the Federal Rules recommended that Rule 11 be amended again to eliminate the abuses caused by the 1983 amendments.
Two key changes were adopted in 1993. First, sanctions became discretionary. Second, a “safe harbor” provision was created, whereby a party seeking Rule 11 sanctions was required to give the adverse party notice and the opportunity to withdraw the objectionable paper without penalty. The 1993 amendments have worked well. As one commentator has noted: “[w]hile lawyers are still sanctioned for wrongful conduct under Rule 11, there is no longer a scourge of frivolous Rule 11 motions being filed. At the same time, this drop off in meritless Rule 11 motion practice has not been accompanied by an increase in groundless litigation practices.”
Enter Congress. Asserting that frivolous federal civil litigation is increasing (although empirical evidence is to the contrary), in March 2011, several legislators introduced the Lawsuit Abuse Reduction Act of 2011 (S. 533 and H.R. 996) to amend Rule 11 by eliminating the safe harbor provision and reinstating mandatory monetary sanctions. Many commentators and organizations, among them the American Bar Association (ABA), have recognized that this could generate the very abuses that the new legislation purports to reduce, given the experience of 1983–1993, and have registered their unqualified opposition to the bill.
As important as is their substantive critique of the legislation, the comments of the ABA and others emphasize a procedural point that should be obvious to Congress—the Rules Enabling Act is the best means of ensuring that any modification of the rules achieves its intended purpose. Rather than subject the rules to the vicissitudes of political partisanship and invective, Congress should employ the analytical tool that it created, the “balanced and inclusive [Judicial Conference deliberative and investigative] process . . . [that] assure[s] that amendment of the Federal rules occurs only after a comprehensive review is undertaken [PDF].” The Rules Enabling Act works well, as exemplified by the judicial system’s experience with the 1993 amendments to Rule 11. It should be used.