Does Rule 11 Give Judges Too Much Discretion?

Illinois adoption of federal Rule 11 has excited no less interest and controversy locally than was excited nationally by the creation of Rule 11 itself. There is a difference, however, between the two situations: While Rule 11 was itself written on a tabla rasa, leaving the field open for speculation as to how it would be applied , there is now a vast literature of comment and, more specifically, or precedent, dealing with the scope of its application. And it seems clear that, in adopting the rule, Illinois is intent on embracing also this whole baggage of federal experience: the commentaries, the precedents and the spirit of federal Rule 11.

As part of this process, Illinois commentators, judges, and practitioners have also focused their attentions on the concerns and anxieties which have been voiced about the federal rule, principally the chilling effect which the rule may have on advocacy, the long term effect which the rule may have on the availability of representation in certain kinds of cases or to less affluent clients, and the creation of a pervasive conflict of interest between a client and his attorney. All these concerns, however , are generated by two features of the rule: the expansion of the scope of conduct which may be subject to sanction, and the possibility of imposing such sanctions on the attorneys as well as all parties.

There is, however, another features of the rule which ought to have raised the greatest interest and concern, but has not done so. I refer to the ability of the judiciary to impose sanctions summarily, on its own initiative. The failure of the bar to react to this grant of power is also ironic because so much attention has recently been given to the origins of the United States Constitution, in this its second centennial year and in view of the fact that it is the very part of the rule which the founding fathers would have noticed first and perhaps founds most offensive to their sensibilities.

To them, the court’s power to act on its own initiative would have appeared both unnatural and lawless, and as such, contrary to the fundamental principles of the common law.

Measured by the traditions of the common law, a judge’s summary imposition of a sanction upon his own initiative in unnatural because it violates the cosmic truth that no one can fairly judge his own case. Likewise, the common law’s fundamental commitment to the " rule of law, and not of men," is violated by a grant of excessive discretion to the judges.

This article will examine the judges’ power to initiate sanctions from the standpoint of the common law tradition and, in so doing, examine some of the problems which that tradition had once remedied, but which have no been loosed anew to trouble the right administration of justice.

Discretion is the snake oil of twentieth century jurisprudence. It is a cure-all for almost every type of difficulty which a court may be called upon to resolve, particularly when it is administered in ever-increasing doses. Even before the Court of Star Chamber, the common law was suspicious of, and adverse to, the concept of discretionary power. As Maitland observed:

" Let us not be impatient with our forefathers. Discretion is not of necessity ‘ the law of tyrants,’ and yet we may say... that formalism is the twin-born sister of liberty... One of the best qualities of our medieval law was that in theory it left little or nothing, in all events in the sphere of procedure, to the discretion of the justices. They themselves desired that this should be so. They would be responsible for nothing beyond the application of iron rules...[W]hen we boast of the ‘ rule of law]...we do well to remember that the rule of law was the rule of writs."

What was the commons law’s aversion to judicial discretion? Basically, it was that such exercises where not unlawful, but rather "lawless," that is, outside of the concept of law because they lacked the essential characteristics of law itself. By the administration of justice according to law is meant "administration according to authoritative precepts or norms (patterns) or guides, developed and applied by an authoritative technique, which individuals may ascertain in advance and by which all are reasonably assured of receiving like treatment. It mean an impersonal, equal, certain administration of justice so far as these may be secured by means of precepts of general application." Roscoe Pound points out that such a method of procedure has six advantages:

(1) Law makes it possible to predict the course which will administration of justice will take; (2) law secures against errors of individual judgment; (3) law secures against improper motives on the part of those who administer justice;(4) law provides in which the ethical ideals of the community are formulated;(5) law gives the magistrate the benefit of all the experience of his predecessors;(6) law prevents sacrifice of ultimate interest, social and individual, to the more obvious and immediate interests.

Of these six characteristics, it is the first three which have been a chief concern, historically, to those who have supported the common law tradition, particularly that law should be certain and predictable. In contradistinction to the rule of law, there is another basis for judicial action-discretion.

Of this Pound notes that it is " a power conceded to the official in some cases of action according to his own judgment or conscience, uncontrolled by the conscience or judgment of others and uncontrolled by any authoritative guides... Here the action of the judge or official is within the legal order but without law in the sense of authoritative guides to determination."

While few would be in favor of returning to the strict view of law which in its philosophy precludes a judicial discretion, it must be allowed that many of the fears, reservations and complaints which Rule 11 ha generated are, in reality, the product of that enactment’s violation of the foregoing requirements of the common law.