No Armistice at 11: A Commentary on the Supreme Court's 1993 Amendment to Rule 11 of the Federal Rules of Civil Procedure


Since 1938, the Supreme Court has supervised the development of procedural rules for the federal courts by a system of committees that now operate under the Judicial Conference of the United States.  In 1993, for the first time in the history of that process, the Court promulgated several new rules proposed by the committee system without endorsing the content of the rules.  One of the 1993 amendments seeks to reduce the costs of “satellite” litigation under Federal Rule of Civil Procedure 11, which governs the imposition of sanctions for filing frivolous suits in the federal courts.  Using a game-theoretic model, Professors Kobayashi and Parker show that the new Rule 11 is likely both to increase the rate of frivolous filings, and perhaps more importantly, to increase the rate at which litigants invoke Rule 11 to challenge their adversaries’ pleadings.  As a result, both the volume and cost of “satellite” Rule 11 litigation is likely to increase, rather than decrease, contrary to the expressed intention of the Amendment’s drafters.  The authors argue that this outcome suggests the need for more rigorous supervision of the rulemaking process by the Supreme Court.