Lawsuit Abuse Reduction Act of 2013

Floor Speech

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Mr. NADLER. Madam Speaker, I rise today in opposition to H.R. 2655, the so-called Lawsuit Abuse Reduction Act. Unfortunately, rather than reduce abusive litigation, this bill will have just the opposite effect.

We don't need to speculate about the disastrous effect of this legislation because we know from experience just what a fiasco it will be. The rule this legislation would restore was in effect from 1983 until 1993. It was a disaster.

After a decade with this rule, the Judicial Conference, the rulemaking body for the Federal judiciary, rightly rejected it in favor of the rule we have today. In fact, this legislation goes even beyond the text of the 1983 rule, broadening the flawed mandatory sanctions even further.

Worse still, the Judiciary Committee has not made even the pretense of considering this very radical change in civil procedure with any care. In fact, no hearings have been held on this legislation in this Congress.

The process, or lack of it, demonstrates the wisdom of the Rules Enabling Act, in which Congress gave the Judicial Conference the responsibility for reviewing court rules and proposing changes. They have done this job admirably, expending years of careful study to existing rules, how they are functioning, and the implications of any proposed changes.

While the sponsor has expressed the desire to limit unnecessary litigation, the experience with the old rule 11, which this bill would restore, was the exact opposite. Rule 11 litigation became a routine part of civil litigation, infecting one-third of all cases. Rather than serving as a disincentive, the old rule 11 actually made the system even more litigious and more costly.

In the decade following the 1983 amendments, which this bill would restore, there were almost 7,000 reported rule 11 cases, becoming part of approximately one-third of all Federal lawsuits. Many civil cases, one-third, became two cases: one case on the merits and the other on dueling rule 11 complaints.

Madam Speaker, it is rare in life that you get a controlled scientific experiment, but we had one here from 1983 to 1993. We saw the results, and they were disastrous, and only incautious people try to repeat disastrous scientific experiments.

The drain on the courts' and the parties' resources caused the Judicial Conference to revisit the rule and to adopt the changes that this bill would undo. In a July 23, 2013, letter to Chairman Goodlatte and Ranking Member Conyers, Judge Jeffrey Sutton of the United States Court of Appeals for the Sixth Circuit and chair of the Committee on Rules of Practice and Procedure and Judge David Campbell of the U.S. District Court for the District of Arizona and chair of the Advisory Committee on Civil Rules said:

Experience, research, and thoughtful deliberation have shown that there is no need to reinstate the 1983 version of rule 11 that proved contentious and costly to litigants and diverted so much time and energy of the bar and bench. Doing so would add to, not improve, the problems of costs and delay that we are working to address. We urge you on behalf of the Rules Committee to not adopt the proposed legislation amending rule 11.

I might add that, in committee, the majority quoted a survey of judges from 1993 saying that we shouldn't change the rules then. Today, the judges very much are very glad we changed the rule because they have lived under both systems.

Madam Speaker, in addition to all these considerations of costs, the bill would hinder the evolution of the common law. One way the common law evolves is by people making claims in court, especially in civil rights cases. Civil rights cases often involve an argument for the extension, modification, or reversal of existing law or the establishment of a new law, and often they have relied upon novel legal theories that are particularly susceptible to someone claiming that they are abusive or frivolous. Had the provisions of this bill been in place at the time, they could have discouraged a number of landmark civil right cases, including BROWN v. BOARD OF EDUCATION of Topeka, and they could prevent new cases from ever being considered. Perhaps that is why all the civil rights groups, all the consumer rights groups oppose this bill.

Madam Speaker, the courts have ample authority to sanction conduct that undermines the integrity of our legal system, but this legislation is the wrong solution in search of a problem. By taking us back to a time when rule 11 actually promoted routine, costly, and unnecessary litigation, this bill is a cure worse than the disease. We know what this rule does, and the courts rightly rejected it 20 years ago. We should benefit from that experience, not repeat the scientific experiment, and reject this legislation.

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