On March 10 and again on June 25, I reported on a bill numbered H.R. 966, the “Lawsuit Abuse Reduction Act,” or LARA, part of the “tort reform” agenda. That bill would toughen Rule 11 of the Federal Rules of Civil Procedure, add disincentives to the filing of civil suits in federal courts, and supposedly prevent “frivolous lawsuits” through judicial sanctions on attorneys. The House Judiciary Committee acted on the bill today, voting on party lines to send it to the floor for full consideration by the House. But an amendment offered by Rep. Bobby Scott (D-VA) to exempt claims based “on the Constitution” from the tougher sanctions won unanimous approval. The amendment would ensure that civil rights claims, such as those brought to protect religious liberty under the First Amendment, gun rights under the Second Amendment, or equal protection claims under the 14th Amendment, can pursued without fear of tougher sanctions. In my earlier posts, I expressed concern over LARA’s impact on litigation brought by social conservatives, so the amendment should ameliorate those concerns.
The amendment, however, creates a separate Rule 11 for those lawsuits, one completely different from those brought with some economic recovery at stake. I assume this will increase litigation over Rule 11 motions, as attorneys seek to avoid sanctions by claiming a nexus to the Constitution and judges use valuable court time to debate such motions. I’m not an expert in the Federal Rules of Civil Procedure, so I’m asking readers whether any other rule in the FRCP is so bifurcated between “Constitutional” and non-“Constitutional” claims. I will post the responses if you give me express permission.
Other issues with the bill remain as it heads to the floor. As I wrote in March, LARA is still “an unwise and unwarranted intrusion by the Legislative Branch into the independence of the Judicial Branch… LARA would impose Congress’ will on the FRCP without consideration by the Judiciary and public comment. Moreover, it mandates, rather than allows, federal judges to impose sanctions, thus substituting Congress’ judgment for the Judiciary’s.” House Republicans shouldn’t complain about “an overreaching judiciary” that “thwart(s) the will of the people and overturn(s) their votes and their values,” and then turn around and overturns standards for judicial decisions through LARA. The Judiciary obviously doesn’t want to change Rule 11, since the Judicial Conference hasn’t started any amendment proceeding.
There’s no need to toughen these sanctions and create two standards for attorney sanctions when federal judges don’t want to change current practice.