Some Realism About Empiricism

The 1983 revision to Rule 11 of the Federal Rules of Civil Procedure proved to be the most controversial amendment to the Federal Rules since their adoption a half-century ago. In the years following the revision\u27s adoption, however, an absence of empirical data on the Rule\u27s application complicated assessment of its precise consequences. The 1992 publication of The Use and Impact of Rule 11 ( the article ), by Lawrence Marshall, Herbert Kritzer, and Frances Kahn Zemans, ameliorated this empirical deficiency. The article set forth many important findings from the most comprehensive empirical study of Rule 11 ever performed. The study, conducted under the auspices of the American Judicature Society (AJS), affords insights that implicate federal civil procedure, the Federal Rules revision process, and federal court legal culture. The study\u27s effect on the 1993 revision to Rule 11 warrants particular attention. The lessons derived from this recent revision process will inform future efforts to revise Rule 11 and other Federal Rules of Civil Procedure. Because the Marshall-Kritzer-Zemans study has been quite significant and will probably continue to be influential, their article warrants close analysis. This Essay is primarily a respectful critique, which emphasizes the authors\u27 assertions regarding empirical data. The Essay briefly describes the article and then assesses certain of its claims that principally implicate empirical information