More on Sanctions Reform

David Nieporent responds to my comments, and I respond to his.

Emmett, he was sanctioned, yes. On what was at least his fourth "offense." In an amount inadequate to make even these defendants whole (let alone the three prior sets of defendants). Assuming, as Judge Crotty does, that this amount is sufficient to deter Aretakis from filing future suits of a similar nature, that doesn't help all those he already sued.

Note that I am not criticizing the judge in this case so much as I am the legal regime under which he's operating, which, as David W explains, is extremely loath to restrict the use of the courts, just in case someone comes up with a brilliant idea down the road.

To the other people who commented, it isn't so much that lawyers are corruptly protecting their professional prospects -- in particular, federal judges are unlikely to be practicing law down the road -- as that for the last few decades, the courts have been seen by many as instruments of "social justice" rather than plain old justice. And they're deathly afraid of making Type II errors (rejecting legitimate cases), so they err on the side of Type I (allowing illegitimate ones).

Posted by: David Nieporent | March 6, 2007 08:11 PM

But the purpose of sanctions under Rule 11 is not to make the defendants whole; it is to deter further bad behavior. I think $8000 will do that well. To my knowledge, this is the first time this sanction has been imposed on him; it may have taken four "offenses," but only one Rule 11 motion that I know of. I doubt his practice is thriving - I suspect he'll feel the stick of that fine.

I see your point about reluctance to restrict access to courts, and I share it. But legislatures are free to restrict access prescriptively, and if they think certain claims should not be heard, they should say so forthrightly in statute. I think that's a better way to deal with such problems than tinkering with the Rule 11 regime, which may have many untoward consequences.

Posted by: Emmett Hogan | March 6, 2007 11:35 PM