Has the Chancellor Shot Himself in the Foot--Looking for a Middle Ground on Rule 11 Sanctions

Authors

Melissa L. Nelken

Abstract

Since its amendment in 1983, Rule 11 of the Federal Rules of Civil Procedure has become the focus of extensive litigation, commentary, and controversy. Despite the contrary intentions of the advisory committee, the rule has spawned considerable "satellite litigation," which shows little sign of abating as the rule ends its sixth year. The inconsistent application of Rule 11 and the tendency to award attorney's fees as the usual sanction undermine the rule's deterrent aim. This Article explores the major sources of opposition to Rule 11, using cases from the courts with the highest volume of Rule 11 litigation-the Second, Fifth, Seventh, and Ninth Circuits-to illustrate the problems surrounding Rule 11 and the responses to these problems that different courts have adopted. It concludes that Rule 11 should be amended to clarify its focus on prefiling inquiry and to lessen its chilling effect, particularly in civil rights cases. Amendments to the rule are proposed to achieve these goals and to reflect more accurately the rule's purpose.

Recommended Citation

Melissa L. Nelken, Has the Chancellor Shot Himself in the Foot--Looking for a Middle Ground on Rule 11 Sanctions, 41 Hastings L.J. 383 (1990).
Available at: https://repository.uclawsf.edu/hastings_law_journal/vol41/iss2/4