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By Christopher M. Fairman Once again, the U.S. House of Representatives is targeting frivolous lawsuits. But the bill headed to the House floor is so unnecessary, so unconstitutional, and so . . . well, frivolous that its sponsors should be grateful there's no equivalent of Rule 11 for Congress. ... The most compelling evidence of the absence of a frivolous litigation problem doesn't come from academic research, but from the federal judiciary itself. The Federal Judicial Center, the research arm of the federal courts, recently surveyed a representative sample of federal judges. On the issue of frequency of groundless litigation, 85 percent responded that it was either a small problem, a very small problem, or no problem at all. ... Congress should reject these back-to-the-future amendments to Rule 11. Again, listening to our federal judges is wise. The Federal Judicial Center survey reveals that 87 percent of the federal judiciary favors the current version of Rule 11; the reforms proposed by LARA are preferred by only 4 percent. Nothing is more compelling. ... By targeting a nonexistent problem with an unwanted solution, LARA is the archetype of frivolous legislation, the congressional equivalent of the abuses that Rule 11 was meant to prevent in the courts. The problem, however, goes beyond its effects on court procedure. LARA reflects a growing congressional willingness to usurp the self-governance of the federal judiciary. ... As the late Charles Alan Wright, a leading scholar on civil procedure and the federal courts, oncewrote: "It cannot be doubted that legislative regulation [of the courts with procedural rules] is less satisfactory than regulation by court-made rules." His words still ring true today. Christopher M. Fairman is an associate professor of law at the Ohio State University Moritz College of Law. He specializes in issues of civil procedure, legal ethics, and their intersection.
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