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Washington and Lee Law Review - Vol. 74

Development

by Edward D. Cavanagh

The House of Representatives has passed H.R. 720, a bill that would amend Rule 11 of the Federal Rules of Civil Procedure by re‑instituting mandatory sanctions for Rule 11 violations and essentially restoring Rule 11 to its contents under the 1983 amendments to the Federal Rules of Civil Procedure. The legislation would mandate imposition of monetary sanctions and eliminate any restrictions on when a Rule 11 motion could be filed. The bill would thus scuttle the 1993 Amendments, which (1) entrusted the sanctions decision to the sound discretion of the trial court; (2) provided a 21‑day safe harbor period that barred the filing of any sanctions motion until 21 days after the Rule 11 motion had been served; and (3) required that the sanction imposed be fashioned so as to deter future Rule 11 transgressions. Accordingly, H.R. 720 would deny trial courts leeway both in deciding whether to impose sanctions and in designing the sanction in a given case.

This article argues that: (1) the case for re-instituting mandatory sanctions has not been made, and the drafters of the bill point to no developments in federal civil litigation during the past 25 years that call for mandatory sanctions under Rule 11; (2) mandatory sanctions are counterproductive in that they serve to increase costs, lead to delays in resolution of cases, and create a hostile litigation environment; (3) mandatory sanctions are fundamentally unfair; and (4) any changes in Rule 11 are best made through rule-making rather than legislation. In the end, mandatory sanctions create more problems than they solve.

Development

by Carl Tobias

Now that President Donald Trump has commenced the fifth month of his administration, federal courts experience 121 circuit and district court vacancies. These statistics indicate that Mr. Trump has a valuable opportunity to approve more judges than any new President. The protracted open judgeships detrimentally affect people and businesses engaged in federal court litigation, because they restrict the expeditious, inexpensive and equitable disposition of cases. Nevertheless, the White House has been treating crucial issues that mandate careful attention—specifically establishing a government, confirming a Supreme Court Justice, and keeping numerous campaign promises. How, accordingly, can President Trump fulfill these critical duties and his constitutional responsibility to nominate and, with Senate advice and consent, appoint judges?
This Article initially canvasses judicial appointments in the administration of President Barack Obama. The evaluation ascertains that Republican obstruction allowed the upper chamber to approve merely twenty jurists across the entire 114th Congress, leaving 105 empty seats and fifty-one expired nominations when the Senate adjourned on January 3, 2017. The Republican Senate majority’s refusal to confirm a single jurist after July 6, 2016— encompassing three circuit nominees whom the Judiciary Committee approved with bipartisan support and twenty district court aspirants whom the committee voice voted without dissent—could portend that President Trump will renominate comparatively few of President Obama’s nominees. The Article then scrutinizes the consequences for the judiciary, the Senate, the President, and the country of confronting many judicial openings. The appeals and district courts require all of their judges to deliver justice, but President Trump addresses numerous troubling concerns—which include global matters, such as the Middle East and the South China Sea, and domestic problems, encompassing health care, economic inequality, and responding to a probe of Russia’s efforts to meddle in the 2016 United States elections—and tendered merely one lower court nominee prior to May 8. The last Part, thus, proffers suggestions to fill the numerous openings with a finely-tuned assessment of the persons nominated by emphasizing those who secured committee reports.

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