With Unseemly Speed

Article excerpt

H.R. 4571 is an effort to effect back-door "tort reform" that slights separation of powers and federalism values without either a reliable demonstration of need or a thoughtful consideration of alternatives.

On June 22, 2004, Uu- House Judiciary Committee held a two hour hearing on "approaches to limiting lawsuit abuse;" on September 8, 2004, the Committee approved H.R. 4571, "The Lawsuit Abuse Reduction Act of 2004" by a party-line vote of IH-10, and on September 14, 2004, the House passed the bill, again along party lines, by a vote of 229-174. Unlike the Feeney Amendment (see the Judicature editorial, "Three branches, not two: Congress should reconsider recent assaults on federal court sentencing discretion," May-June 200%), H.R."4571 had the benefit of a hearing and of debate, liut the hearing was dominated by witnesses who preferred litigation horror stories and sweeping causal assertions (for instance, concerning the relationship between the tort system and insurance rates) to the evidence of serious empirical studies. The only witness who paid attention to such studies (including a 2004 Bureau of Justice Statistics report finding that, in the period 1992-2001, median jury awards in tort cases overall declined substantially) was told that "people arc more important than statistics." A two hour hearing was adequate to get to the bottom of the issues addressed in H.R. 4571 only if there was no serious desire to do so, as is suggested by the unseemly speed with which the bill was considered and approved by the House Judiciary Committee and passed by the House.

The core of the bill would reverse most of the 1998 amendments to Rule 11 of the Federal Rules of Civil Procedure, which, like the original rule and the 1983 amendments, were promulgated by the Supreme Court under the Rules Enabling Act. Rule 11 imposes duties of reasonable inquiry as to the facts and the law on those engaged in federal litigation and provides for sanctions against those who violate its requirements. The result of the bill's direct amendment of that rule would be that, as was true between 1983 and 1993, it would again require the imposition of sanctions for a violation, again encourage sanctions that shift attorney's fees, and again afford no opportunity for those alerted to a possible violation t.o avoid sanctions by amending or withdrawing the paper in question.

On what basis did the House vote to bypass the process for proposing or amending Federal Rules that is prescribed by the Rules Enabling Act, a process that Congress revised in 1988 to enable it to get out of the business of second-guessing the rulemakers? On what basis did the House vote to repudiate the results of a painstaking multi-year study of the operation of the 1983 version of Rule 11 by the Advisory Committee on Civil Rules, assisted by the Federal Judicial Center and by independent empirical investigations? On what basis did the House vote to ignore the concerns about H.R. 4571 expressed by the Judicial Conference of the United States, concerns relating both to the process and to the merits of the proposed bill?

Proponents relied on anecdotes, the dissenting views of some justices in 1993 and, selectively, on survey evidence concerning the views and preferences of judges and attorneys. They also adduced a provision stating that the bill's amendment to Rule 11 shall not "be construed to bar or impede the assertion or development of new claims or remedies under federal, state, or local civil rights law" as proof that "[c]ivil rights claims are thereby exempted from the bill's Rule 11 provisions. …