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Andrew Cochran
Andrew Cochran
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Latest “Tort Reform” Bill Infringes on Judicial Independence & Religious Liberty

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On Friday, March 11, the House Judiciary Committee will hold a hearing on H.R. 966, the "Lawsuit Abuse Reduction Act," or LARA, the next piece of the "tort reform" agenda envisioned by the U.S. Chamber and Judiciary Committee chairman, Rep. Lamar Smith of Texas. The goal behind LARA is to toughen Rule 11 of the Federal Rules of Civil Procedure, add disincentives to the filing of civil suits in federal courts, and supposedly prevent "frivolous lawsuits" through judicial sanctions on attorneys. Although the bill’s text isn’t available as of the time of this post, a bill by that name was passed by the U.S. House in 2005, when Republicans were in the majority. Committee staff indicate that this version of LARA is similar in to the 2005 version in that it reimposes standards for the application of the Rule 11 standards in place from 1983 to 1993. In 1993, the Judicial Conference rejected the 1983 version, after it created an entire industry of fresh litigation over whether a particular pleading or motion was "frivolous."

As I understand it, the major elements of this year’s LARA are as follows:

1. LARA makes judicial sanctions mandatory, rather than discretionary under the current Rule 11;

2. LARA makes compensation for "frivolous lawsuits" a main objective of the rule, rather than only deterrence; and

3. LARA removes the safe-harbor provision of the current rule, eliminating the ability to remedy minor infractions within 21 days without being subject to a Rule 11 sanction.

There are a host of reasons to oppose this attempt to legislate changes to Rule 11, starting with those grounded in the Constitution:

1. It’s an unwise and unwarranted intrusion by the Legislative Branch into the independence of the Judicial Branch. The Rules Enabling Act provides for changes to the FRCP through a proposal by the Judicial Conference, followed by approval by the Supreme Court, and then review by Congress. LARA would impose Congress’ will on the FRCP without consideration by the Judiciary and public comment. Moreover, it mandates, rather than allows, federal judges to impose sanctions, thus substituting Congress’ judgment for the Judiciary’s. The Judicial Branch clearly favors the current rule, having reinstated it in 1993, and there is no call from federal judges to change it.

2. It’s hypocritical for House Republicans to complain in their "Pledge to America" about "an overreaching judiciary" that "thwart(s) the will of the people and overturn(s) their votes and their values," and then turn around and overturns standards for judicial decisions through LARA. It’s hypocritical of House Republicans to pledge "to honor the Constitution as constructed by its framers and honor the original intent of those precepts" and then dishonor the Founders and the independence of the Judiciary through LARA.

In other words, Congress should let judges run their courtrooms, just as Congress would want judges to stay out of the legislative business.

One extremely unwise impact of enactment of LARA would be to infringe on lawsuits filed to defend religious liberty. There’s already a body of evidence to indicate that the tougher Rule 11 in effect from 1983 to 1993 had a disproportionate impact on civil rights cases. One expert testified before Congress in 2004 that although civil rights cases made up 11.4% of federal cases after filed the 1983 rule change, 22.7% of the cases in which sanctions had been imposed were civil rights cases. Ironically, he also testified that personal injury cases constituted 19.2% of cases filed but accounted for only 15.1% of Rule 11 sanctions during the same period.

On the pages of The 7th Amendment Advocate, I’ve reported on the critical use of the civil litigation process and 7th Amendment rights to protect religious liberty against infringement by various parties. For instance, when the University of Illinois threatened to fire a professor for his invoking Christianity in his class, a lawsuit filed by the Alliance Defense Fund forced the university to back down. But a 1992 law review article (available on Lexis) reported on a survey of plaintiffs’ firms that found that "concern with Rule 11 (the 1983 Rule) led them to decline to present the claim or defense that they believed to be meritorious." So LARA could scare away nonprofits or small firms specializing in religious liberty cases from filing suits against large entities, for fear that a judge could impose costly sanctions.

Americans of all persuasions who cherish the Constitution’s checks and balances, and their rights protected by the 7th Amendment, should tell their Congressman to resist enacting LARA.

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    Andrew this is an excellent article that opens my eyes to the subject. I posted it on my Facebook page so others can see and read it. Keep up the great work educating the public

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    The U.S. Constitution couldn’t be more specific; republicans will stop at nothing to recreate “a country” to their own likening…citizens mean nothing.

  3. Peter S. Chamberlain says:
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    I’m a retired Texas attorney who has practiced both with plaintiffs’ and an insurance-defense firm before going solo many years ago. I’ve seen abuses on both sides of the docket, but, contrary to the claims of the relentless so-called “tort reform” movement, most of the egregious abuses I have seen or know about from court records or other reliable sources have been on the defense side.
    I just ran across this article, and this bill, via Alliance Defense Fund, a conservative Christian law-related group. What really shocks and appeals me is that the text of the actual bill being considered by the House was reportedly not publicly available yet on the eve of, nor have I found it shortly after, the hearing.
    There are ample sanctions available against plaintiffs and their attorneys who bring factually and legally groundless cases, apart from the fact that most plaintiffs’ cases are brought on contingent fees so the attorney only gets paid if the client wins, and a third or so of the win. One problem is simply that insurers and defendants do sometimes roll over and pay off on groundless claims rather than contesting these. Too often, they contest cases that really should be settled.
    As described, this is a lousy bill.