Arguing that the so-called Lawsuit Abuse Reduction Act would have prevented Brown v. Board of Education from going forward, CCL President Robert S. Peck told a House Judiciary subcommittee that the bill would “expose Americans to more harmful products and misconduct by diminishing the opportunity to hold those responsible accountable,” “add to the cost of litigation, not lower it,” while raising profound separation of powers issues by virtue of its attempt to amend a rule of civil procedure directly, rather than through the Rules Enabling Act, which makes the judiciary primarily responsible for the promulgation of procedural rules.

The bill, H.R. 758, attempts to roll back the present version of Rule 11, adopted in 1993, to reinstate the language it had in 1983, when sanctions were mandatory, rather than discretionary. Even the strongest judicial advocates of mandatory sanctions, receded from that support based on experience that showed that Rule 11 motions were brought primarily for tactical reasons that only multiplied proceedings, caused waste and delay, and increased tensions between parties, making the job of judges harder, Peck told the Subcommittee on the Constitution and Civil Justice.  The bill is also opposed by the Judicial Conference of the United States, the governing body of the federal courts, as well as the American Bar Association.  A 2005 poll of judges, conducted by the Federal Judicial Center, found 87 percent favored the current rule, while only five percent wanted a return to the 1983 version.

Peck’s reference to Brown v. Board of Education was supported by a 1988 article by U.S. District Court Judge Robert Carter, a member of the legal team in Brown, who believed that the case would not have gotten past a Rule 11 motion under the 1983 rule. Noting that judges have ample authority to sanction baseless filings, Peck said that judicial discretion is necessary because different violations warrant different remedies. Peck concluded his remarks by quoting University of Pennsylvania Professor Stephen Burbank, who described the decade-long experience under the 1983 rule as an “irresponsible experiment with court access,” and urged Congress to reject the bill for the reason that the Judicial Conference had interred the 1983 rule.