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I'm reading the text of bill "H.R. 720: Lawsuit Abuse Reduction Act of 2017" as it was introduced on Jan 30, 2017 at govtrack.us.

Sec. 2. (b) reads

Rule of construction.--

Nothing in this Act or an amendment made by this Act shall be construed to bar or impede the assertion or development of new claims, defenses, or remedies under Federal, State, or local laws, including civil rights laws, or under the Constitution of the United States.

My questions are

  1. What's the intention of this part of the bill?
  2. Without this text, how might someone construe the Act to bar or impede the assertion or development of new claims, defenses, or remedies?
  • @geofflittle For what it's worth, I think you probably want to look at Federal Rule of Civil Procedure 11(b)(2). I think the rule of construction is mostly meant to ensure that that isn't used to inhibit the development of new law. – Avi Feb 26 '17 at 0:54
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The already existing rule 11 penalizes baseless litigation. The modifications in this bill makes sanctions obligatory rather than optional, removes escapes for what would be sanctionable actions, and expands the range of sanctions. The clause in question strikes me as redundant, because existing rule 11(b)(2) says of the action that

(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;

Without either of these clauses, sanctions could be imposed on a bright guy who comes up with a new legal argument that actually works, which I think is clearly contrary to the intent of the original rule. Such a clause is a way of telling the courts "No, that is not the legislative intent". But the existing rule already covers that outcome.

It may be that the added sanction "striking the pleadings, dismissing the suit, or other directives of a non-monetary nature..." was thought to potentially threaten "creative lawyering", but again that seems to be already covered by 11(b)(2). The words "assertion or development of new claims, defenses, or remedies under Federal, State, or local laws, including civil rights laws, or under the Constitution of the United States" differ from "nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law", but they seem to describe the same kind of facts. Perhaps a historical reading of the various versions since 1983, especially related to the advisory committee notes, would reveal more precisely why this is necessary.

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What's the intention of this part of the bill? Without this text, how might someone construe the Act to bar or impede the assertion or development of new claims, defenses, or remedies?

Well, the effect of the Act is to penalize people for engaging in baseless litigation. For context, it's been a long-standing tradition in America that people have a right to bring whatever case they have to court and all the defending party can do about it is to pay to defend itself. Now the defending party can put "lawsuit abuse" on the table and recover some of the costs of the defense. However, it's important that it be made clear that nobody is prevented from bringing a lawsuit in the first place, however baseless it may be. Only once the merits of the lawsuit have been fully considered by the court can the Act apply to allow the defendant to recover attorney's fees and costs.

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