Seeking a Common Language for the Application of Rule 11 Sanctions: What is Frivolous ?

In this article, Levine analyzes some of the complex issues involved in attempting to apply the ambiguous concept of frivolousness in the context of Rule 11 sanctions. He documents the inconsistency in judicial interpretation and application of Rule 11 frivolousness. Relying in part on the observations and concerns expressed by scholars, practitioners, and judges themselves who have lamented the lack of uniformity and the troubling results that have followed, Levine examines closely some of the problems inherent in the current standards. After demonstrating the wide range of approaches put forth by both judges and scholars to the interpretation of Rule 11 frivolousness, Levine continues, in part III, with a search for a common language for these discussions. Toward that end, this part looks to some of these innovative approaches, with the aim of finding an approach that may be suitable and useful to the various groups affected by and interested in the administration of Rule 11. Specifically, building on an opinion of United States District Court Judge Jack Weinstein, Levine suggests a method for considering Rule 11 violations and imposition of sanctions through the use of a continuum, which will allow and require courts to assign a value of reasonableness to claims that come before them. Under this framework, if a claim does not reach a certain level of reasonableness, as determined by the court, it will be subject to sanctions. At the same time, the court will impose sanctions in proportion to the degree to which the claim is found to be unreasonable. Levine concludes with the hope that such an approach will help provide a common language for further efforts at arriving at a more effective application of Rule 11