madam speaker , i would like to enter into the record as well another letter signed by a number of groups urging a vote against h.r. 420 . 
i would also like to include a letter that was sent to every member of congress by michael s. greco , the president of the american bar association , opposing this legislation . 
i would also like to insert in the record the text of the letter that i mentioned in my opening speech from the judicial conference of the united states which very strongly opposes this legislation . 
october 25 , 2005 . 
dear representative : we urge you to oppose h.r. 420 , a bill that would restore the discriminatory impact of the old version of rule 11 of the federal rules of civil procedure , trample on states ' rights to run their own courts , and increase the extent and expense of litigation rather than reduce it . 
h.r. 420 seeks to roll back rule 11 of the federal rules of civil procedure to an earlier 1983 version of the rule , which would undermine carefully crafted standards that were enacted in 1993 . 
those changes expanded responsibilities of litigants , while at the same time providing greater constraints and flexibility in dealing with violations of the rule . 
the current rule requires litigants to `` stop-and-think '' before making legal or factual contentions . 
it also , however , emphasizes the duty of candor by subjecting litigants to potential sanctions for insisting upon a position after it is no longer tenable , and by generally providing protection against sanctions if they withdraw or correct contentions after a potential violation is called to their attention . 
there is no evidence that the current rule 11 is not working . 
in fact , department of justice statistics show that the number of lawsuits is declining in both federal and state courts . 
the end result of h.r. 420 would be a shift of the function of rule 11 from deterring frivolous litigation to increasing litigation by those who have the resources and the time to litigate against opposing counsel . 
history shows that mandatory rule 11 sanctions imposed in 1983 , and to which h.r. 420 would have us return , were used disproportionately against plaintiffs ' ( particularly civil rights ) attorneys and those attempting to extend the law in support of unpopular causes . 
more than a decade ago , civil rights organizations -- including some of the undersigned organizations -- worked to nationwide surveys about the former rule found that motions for sanctions were most frequently sought and granted in civil rights cases . 
expressing his concerns about the former rule 11 , the honorable robert l. carter , united states district court judge for the southern district of new york , noted , `` i have no doubt that the supreme court 's opportunity to pronounce separate schools inherently unequal [ in brown v. board of education ] would have been delayed for a decade had my colleagues and i been required , upon pain of potential sanctions , to plead our legal theory explicitly from the start. '' the language of h.r. 420 purporting to protect civil rights claims provides insufficient protection for victims of discrimination moreover , h.r. 420 not only changes the rules for federal courts , it is unprecedented in that its reach extends to state court cases . 
section 3 of the bill provides , upon motion , the court is required to assess the costs of the action `` to the interstate economy. '' if the court determines that the state court action `` affects interstate commerce , '' rule 11 of the federal rules of civil procedure `` shall apply to such action. '' imagining the proceedings necessary to determine whether a particular state court action `` affects interstate commerce '' is mind-boggling . 
this provision will certainly spawn satellite litigation . 
moreover , the total disregard for federalism is astounding . 
finally , the vast majority of the federal judiciary opposes the changes contained in h.r. 420 . 
the judicial conference of the united states , headed by the late chief justice rehnquist , clearly stated in a letter to chairman sensenbrenner that `` the proposed changes to rule 11 will not help deter litigation abuses , but will increase satellite litigation , costs , and delays. '' the letter also notes there is `` a remarkable consensus '' among federal district court judges in opposition to changing the rule . 
if you have any questions or need more information , please contact pamela gilbert , cuneo gilbert & amp ; laduca , llp , representing the center for justice & amp ; democracy , 202.587.5064 ; sandy brantley , legislative counsel , alliance for justice , 202.822.6070 ; or jillian aldebron , civil justice counsel , public citizen 's congress watch , 202.454.5135 . 
sincerely , alliance for justice . 
center for justice & amp ; democracy . 
citizens for a safer minnesota . 
consumer federation of america . 
district of columbia million mom march . 
legal community against violence . 
maine citizens against handgun violence . 
national association of consumer advocates . 
new yorkers against gun violence . 
public citizen . 
usaction . 
violence policy center . 
virginians against handgun violence . 
american bar association , chicago , il , october 10 , 2005 . 
dear representative : i write regarding h.r. 420 , the `` lawsuit abuse reduction act. '' the american bar association strongly opposes this legislation and respectfully urges you to vote `` no '' when it is brought to the floor of the house of representatives in the near future . 
without any demonstrated problem with the enforcement or operation of rule 11 , h.r. 420 would ( 1 ) impose mandatory sanctions for any violation of rule 11 of the federal rules of civil procedure and remove its current `` safe harbor '' provisions ; ( 2 ) enforce a mandatory suspension from practicing law of an attorney who has violated rule 11 three times ; ( 3 ) impose federal mandatory rule 11 sanctions upon any civil state court claim that materially affects interstate commerce ; and ( 4 ) impose specific venue designation rules upon any personal injury claim filed in any state or federal court . 
as a threshold matter , the aba strongly opposes the legislation because these amendments to the federal rules of civil procedure are being proposed without utilizing the process set forth in the rules enabling act . 
this departure from the procedure of the rules enabling act is also being proposed without any demonstrated problem with the operation of the rules enabling act . 
the aba fully supports the rules enabling act process , which is based on three fundamental concepts : ( 1 ) the essential and central role of the judiciary in initiating judicial rulemaking ; ( 2 ) the use of procedures that permit full public participation , including participation by members of the legal profession ; and ( 3 ) provision for a congressional review period . 
we view the proposed rules changes to the federal rules in h.r. 420 as an unwise retreat from the balanced and inclusive process established by congress when it adopted the rules enabling act . 
in 28 u.s.c . 
2072-74 , congress prescribed the appropriate procedure for the formulation and adoption of rules of evidence , practice and procedure for the federal courts . 
this well-settled , congressionally specified procedure contemplates that evidentiary and procedural rules will in the first instance be considered and drafted by committees of the united states judicial conference , will thereafter be subject to thorough public comment and reconsideration , and will then be submitted to the united states supreme court for consideration and promulgation . 
finally and most importantly , the proposed rules resulting from the inclusion of all of the stakeholders , is transmitted to congress , which retains the ultimate power to veto any rule before it takes effect . 
this time-proven process proceeds from separation-of-powers concerns and is driven by the practical recognition that , among other things : ( 1 ) rules of evidence and procedure are inherently a matter of intimate concern to the judiciary , which must apply them on a daily basis ; ( 2 ) each rule forms just one part of a complicated , interlocking whole , rendering due deliberation and public comment essential to avoid unintended consequences ; and ( 3 ) the judicial conference is in a unique position to draft rules with care in a setting isolated from pressures that may interfere with painstaking consideration and due deliberation . 
we do not question congressional power to regulate the practice and procedure of federal courts . 
congress exercised this power by delegating its rulemaking authority to the judiciary through the enactment of the rules enabling act , while retaining the authority to review and amend rules prior to their taking effect . 
we do , however , question the wisdom of circumventing the rules enabling act , as h.r. 420 would do . 
the fact that the proposed changes to the rules are flawed should give pause to those who are asked to support the circumvention of the process of the rules enabling act . 
not following the processes set forth in the rules enabling act would frustrate the purpose of the act and potentially harm the effective functioning of the judicial system . 
the aba supports the current version of rule 11 because it has proven to be an effective means of discouraging dilatory motions practice and frivolous claims and defenses . 
there has been no demonstrated problem with the enforcement or operation of rule 11 . 
the aba opposes the provisions in h.r 420 to enforce a mandatory suspension of an attorney for rule 11 violations . 
the filing of frivolous claims and defenses is an important issue that deserves attention . 
it is appropriate and right for courts to have the ability to sanction attorneys for abusing the legal system by filing claims meant to harass or intimidate litigants . 
it is , however , important to remember that rule 11 violations can be levied even when , in hindsight , there may have been a legitimate claim , especially for civil rights cases or environmental litigation . 
attorneys practicing in these areas may be subject to more rule 11 sanctions than attorneys who handle other types of cases . 
a system that provides for mandatory suspension of attorneys with three rule 11 violations would have an extremely chilling effect on the justice system and could disproportionately impact attorneys who practice in particular areas , such as civil rights or environmental law . 
this type of mandatory suspension is even more damaging when taken in combination with efforts to require mandatory sanctions for rule 11 violations , which can not be appealed until after a judgment is rendered in a case . 
equally important , the aba strongly opposes enactment of h.r. 420 because congress should not dictate venue rules for state courts . 
state rules relating to venue and jurisdiction should be developed at the state level and supported by extensive study , vetted publicly , and made subject to comment by the legal profession . 
to do otherwise would violate our long-established principles of federalism . 
it should remain solely within the purview of the individual states to establish local rules for procedures , either through their state legislatures or through a grant of rulemaking authority to their state judiciaries . 
the imposition of rule 11 mandatory sanctions upon the individual state courts would also violate our time-honored principles of federalism . 
earlier this year , the conference of chief justices adopted a resolution in opposition to federal usurpation of state court authority as guaranteed by the united states constitution . 
this resolution `` strongly opposed '' the enactment of any federal legislation that would `` drastically change the traditional state role in determining ethics , jurisdiction and venue rules in state litigation. '' the determination of the states to establish and operate their judicial systems in accordance with principles important to each state is entitled to respectful deference from the federal government . 
great deference should also be given to the views of these state court leaders . 
for these compelling reasons the aba strongly opposes the enactment of h.r. 420 . 
we respectfully urge you to vote `` no '' on this legislation . 
sincerely , michael s. greco , of the united states , washington , dc , may 17 , 2005 . 
dear mr . 
chairman : i am pleased to provide you with a copy of the federal judicial center 's report of a survey of united states district judges ' experiences and views concerning rule 11 , federal rules of civil procedure . 
the report was prepared at the request of the judicial conference 's advisory committee on civil rules to provide information as part of the advisory committee 's study of proposals introduced in congress to amend rule 11 . 
the report makes it clear that the vast majority of federal district judges believe that the proposed changes to rule 11 will not help deter litigation abuses , but will increase satellite litigation , costs , and delays . 
since 1995 , legislation has regularly been introduced that would reinstate a mandatory sanctions provision of rule 11 that was adopted in 1983 and eliminated in 1993 . 
the 1993 change followed several years of examination and was made on the judicial conference 's recommendation , with the supreme court 's approval , and after congressional review . 
the 1983 provision was eliminated because during the ten years it was in place , it did not provide meaningful relief from the litigation behavior it was meant to address and generated wasteful satellite litigation that had little to do with the merits of a case . 
on january 26 , 2005 , representative lamar smith introduced the lawsuit abuse reduction act of 2005 ( h.r. 420 ) . 
in 1983 , rule 11 was amended to require judges to impose sanctions for violations that could include attorneys ' fees . 
the 1983 version of rule 11 was intended to address certain improper litigation tactics by providing some punishment and deterrence . 
the effect was almost the opposite . 
the 1983 rule presented attorneys with financial incentives to file a sanction motion . 
the rule was abused by resourceful lawyers . 
a `` cottage industry '' developed that churned tremendously wasteful satellite sanctions litigation that had everything to do with the 1993 amendments to rule 11 were designed to remedy major problems shown by experience with the 1983 rule , allow courts to focus on the merits of the underlying cases rather than on rule ii motions , but still provide a meaningful sanction for frivolous pleadings . 
the rule establishes a `` safe harbor , '' providing a party 21 days within which to withdraw a particular claim or defense before sanctions can be imposed . 
if the party fails to withdraw an allegedly frivolous claim or defense within the 21 days , a court may impose sanctions , including assessing reasonable attorney fees . 
rule 11 does not supplant other remedial actions available to sanction an attorney for a frivolous filing , including punishing the attorney for contempt , employing sanctions under 28 d.s.c . 
1927 for `` vexatious '' multiplication of proceedings , or initiating an independent action for malicious prosecution or abuse of process . 
h.r. 420 would amend rule 11 to restore the 1983 version , by removing a court 's discretion to impose sanctions on a frivolous filing and by eliminating the rule 's safe-harbor provisions . 
the judicial conference opposed the lawsuit abuse reduction act of2004 ( h.r. 4571 ) , the predecessor of h.r. 420 . 
the judicial conference based its position on the problems caused by the 1983 version of rule 11 , which h.r. 420 would restore . 
the judicial conference noted that these problems included : creating a significant incentive to file unmeritorious rule 11 motions by providing a possibility of monetary penalty ; engendering potential conflict of interest between clients and their lawyers , who advised withdrawal of particular claims despite the clients ' preference ; exacerbating tensions between lawyers ; and providing little incentive , and perhaps a distinct disincentive , to abandon or withdraw -- and thereby admit error on -- a pleading or claim after determining that it no longer was supportable in law or fact . 
the advisory committee on civil rules regularly monitors the operation of the civil rules , inviting the bench , bar , and public to inform it of any problems . 
the committee stands ready to address any deficiency in the rules , including rule ii . 
although the committee is mindful of congressional concerns about frivolous filings addressed in pending legislation , the committee has not received any negative comments or complaints on existing rule ii from the bench , bar , or public . 
to gain a clearer picture of the operation of rule 11 , the committee asked the federal judicial center to survey the experience of the trial judges who must apply the rules . 
the survey sought responses from judges with experience under the 1983 version as well as judges serving only after the 1993 version was adopted . 
the results of the federal judicial more than 80 percent of the 278 district judges surveyed indicate that `` rule 11 is needed and it is just right as it now stands '' ; 87 percent prefer the existing rule 11 to the 1983 version or the version proposed by legislation ( e.g. , h.r. 4571 or h.r. 420 ) ; 85 percent strongly or moderately support rule 11 's safe harbor provisions ; 91 percent oppose the proposed requirement that sanctions be imposed for every rule 11 violation ; 84 percent disagree with the proposition that an award of attorney fees should be mandatory for every rule 11 violation ; 85 percent believe that the amount of groundless civil litigation has not grown since the promulgation of the 1993 rule , with 12 percent noting that such litigation has not been a problem , 19 percent noting that such litigation decreased during their tenure on the federal bench , and 54 percent noting that such litigation has remained relatively constant ; and 72 percent believe that addressing sanctions for discovery abuse in rules 26 ( g ) and 37 is better than in rule 11 . 
the judges ' experiences with the 1993 version of rule 11 point to a marked decline in rule 11 satellite litigation without any noticeable increase in the number of frivolous filings . 
h.r. 420 would effectively reinstate the 1983 version of rule 11 that proved so contentious and wasted so much time and energy of the bar and bench . 
rule 11 in its present form has proven effective and should not be revised . 
the findings of the federal judicial center underscore the federal district judges ' united opposition to legislation amending rule 11 . 
i urge you on behalf of the judicial conference to oppose legislation amending rule 11 . 
the judicial conference appreciates your consideration of its views . 
if you have any questions , please feel to contact me . 
i may be reached at ( 202 ) 273-3000 . 
if you prefer , you may have your staff contact karen kremer , counsel , office of legislative affairs , administrative office of the united states courts , at ( 202 ) 502-1700 . 
sincerely , leonidas ralph mecham , madam speaker , i think the reason why we have no other speakers on this side is because everything that possibly could be said was said last year . 
so all we need to do is just replay the tape recorder and listen to all the arguments . 
we just seem to be repeating the same debates over and over and over again . 
again , i would urge my colleagues to vote against this legislation . 
this is unwise policy . 
i understand that the genesis of this legislation is to appeal to those who like to contribute lots of money to particular campaigns , but , quite frankly , i think that is not a sound reason to pass this legislation . 
as i mentioned before , the judicial conference of the united states has outlined very clearly why this is a bad bill . 
i would hope that my colleagues would listen to some of the experts and do what is right and reject this legislation . 
madam speaker , i yield back the balance of my time . 
