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67 N.C. L. Rev. 1023 (1988-1989)
Intercepting and Discouraging Doubtful Litigation: A Golden Anniversary View of Pleading, Summary Judgment, and Rule 11 Sanctions under the Federal Rules of Civil Procedure

handle is hein.journals/nclr67 and id is 1055 raw text is: INTERCEPTING AND DISCOURAGING DOUBTFUL LITIGATION: A GOLDEN ANNIVERSARY VIEW OF PLEADING, SUMMARY JUDGMENT, AND RULE 11 SANCTIONS UNDER THE FEDERAL RULES OF CIVIL PROCEDURE MARTIN B. Louist Professor Louis marks the 50th anniversary of the Federal Rules of Civil Procedure by examining their near failure in the past decade and recent efforts to revitalize them. He finds that a generation of liberal judicial construction had given the Federal Rules a strong proclaimant, laissez faire bias which left them unable to cope with a variety of abusive litigative tactics or the flood of cases engulfing the federal courts. He then examines recent reform efforts directed towards those devices in the Federal Rules like pleading, summary judgment, and rule 11 which are designed to intercept and discourage the assertion of doubtful or merit- less claims and defenses. He finds that the recent judicial resucitation of fact pleading will create many more problems than it solves, that the judicial revitalization of the motion for summary judgment has gener- ally been desirable, even though the courts have not yet explicated their new approach, and that the implementation of amended rule 11 has generally been successful. He concludes finally that these reforms have probably not gone far enough, that the system is still vulnerable to the tactical assertion of protracted claims that are doubtful but not totally without merit, and that in the forseeable future we shall have to consider the adoption of even more extreme reform measures. I. INTRODUCTION The Federal Rules of Civil Procedure are now fifty years old.1 For much of this time they were widely acclaimed the best code of practice that is to be found anywhere in this country, or for that matter anywhere in this world.'2 Now that acclaim has turned to doubt.3 In recent years the federal courts have t Paul B. Eaton Professor of Law, University of North Carolina School of Law. A.B., Princeton University, 1956; LL.B, 1959, LL.M, 1965, Harvard University. This article was prepared with the assistance of a grant from the University of North Carolina Law Center. 1. Federal Rules of Civil Procedure 1-86, which were promulgated by the United States Supreme Court by order of December 20, 1987, 302 U.S. 783, under the authority of the Enabling Act, now 28 U.S.C. § 2072 (1982), became effective on September 16, 1988. 2. Parker, Book Review, 57 HARv. L. REV. 735, 736 (1944). See generally C. WRIGHT, THE LAW OF FEDERAL COURTS 405-06 (4th ed. 1983) (citing to other praise of the Federal Rules). 3. See generally Subrin, How Equity Conquered Common Law: The Federal Rules of Civil Procedure In Historical Perspective, 135 U. PA. L. REV. 909, 911-12 (1987) (listing current critics and criticism of the Federal Rules).

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