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I. PROCEDURAL REGULATION

Franz Kafka, Vor dem Gesetz

Vor dem Gesetz steht ein Türhüter. Zu diesem Türhüter kommt ein Mann vom Lande
und bittet um Eintritt in das Gesetz. Aber der Türhüter sagt, daß er ihm jetzt den Eintritt
nicht gewähren könne. Der Mann überlegt und fragt dann, ob er also später werde
eintreten dürfen.

«Es ist möglich», sagt der Türhüter, «jetzt aber nicht.»

Da das Tor zum Gesetz offensteht wie immer und der Türhüter beiseite tritt, bückt sich
der Mann, um durch das Tor in das Innere zu sehn. Als der Türhüter das merkt, lacht er
und sagt:

«Wenn es dich so lockt, versuche es doch, trotz meines Verbotes hineinzugehn. Merke
aber: Ich bin mächtig. Und ich bin nur der unterste Türhüter. Von Saal zu Saal stehn aber
Türhüter, einer mächtiger als der andere. Schon den Anblick des dritten kam nicht einmal
ich mehr ertragen.»

Solche Schwierigkeiten hat der Mann vom Lande nicht erwartet; das Gesetz soll doch
jedem und immer zugänglich sein, denkt er, aber als er jetzt den Türhüter in seinem
Pelzmantel genauer ansieht, seine große Spitznase, den langen, dünnen, schwarzen
tatarischen Bart, entschließt er sich, doch lieber zu warten, bis er die Erlaubnis zum
Eintritt bekommt. Der Türhüter gibt ihm einen Schemel und läßt ihn seitwärts von der
Tür sich niedersetzen.

Dort sitzt er Tage und Jahre. Er macht viele Versuche, eingelassen zu werden, und
ermüdet den Türhüter durch seine Bitten. Der Türhüter stellt öfters kleine Verhöre mit
ihm an, fragt ihn über seine Heimat aus und nach vielem andern, es sind aber
teilnahmslose Fragen, wie sie große Herren stellen, und zum Schlusse sagt er ihm immer
wieder, daß er ihn noch nicht einlassen könne. Der Mann, der sich für seine Reise mit
vielem ausgerüstet hat, verwendet alles, und sei es noch so wertvoll, um den Türhüter zu
bestechen. Dieser nimmt zwar alles an, aber sagt dabei:

«Ich nehme es nur an, damit du nicht glaubst, etwas versäumt zu haben.»

Während der vielen Jahre beobachtet der Mann den Türhüter fast ununterbrochen. Er
vergißt die andern Türhüter, und dieser erste scheint ihm das einzige Hindernis für den
Eintritt in das Gesetz. Er verflucht den unglücklichen Zufall, in den ersten Jahren
rücksichtslos und laut, später, als er alt wird, brummt er nur noch vor sich hin. Er wird
kindisch, und, da er in dem jahrelangen Studium des Türhüters auch die Flöhe in seinem
Pelzkragen erkannt hat, bittet er auch die Flöhe, ihm zu helfen und den Türhüter
umzustimmen. Schließlich wird sein Augenlicht schwach, und er weiß nicht, ob es um
ihn wirklich dunkler wird, oder ob ihn nur seine Augen täuschen. Wohl aber erkennt er
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jetzt im Dunkel einen Glanz, der unverlöschlich aus der Türe des Gesetzes bricht. Nun
lebt er nicht mehr lange. Vor seinem Tode sammeln sich in seinem Kopfe alle
Erfahrungen der ganzen Zeit zu einer Frage, die er bisher an den Türhüter noch nicht
gestellt hat. Er winkt ihm zu, da er seinen erstarrenden Körper nicht mehr aufrichten
kann. Der Türhüter muß sich tief zu ihm hinunterneigen, denn der Größenunterschied hat
sich sehr zuungunsten des Mannes verändert.

«Was willst du denn jetzt noch wissen?» fragt der Türhüter, «du bist unersättlich. »

«Alle streben doch nach dem Gesetz», sagt der Mann, «wieso kommt es, daß in den
vielen Jahren niemand außer mir Einlaß verlangt hat?»

Der Türhüter erkennt, daß der Mann schon an seinem Ende ist, und, um sein
vergehendes Gehör noch zu erreichen, brüllt er ihn an:

«Hier konnte niemand sonst Einlaß erhalten, denn dieser Eingang war nur für dich
bestimmt. Ich gehe jetzt und schließe ihn.»
Franz Kafka

FRANZ KAFKA, Before the Law, THE TRIAL

Translated by Willa and Edwin Muir; Copyright © 1971, Schocken Books.
http://www.pith.net/pithfiles/b4law.htm

Before the Law stands a doorkeeper. To this doorkeeper there comes a man from
the country and prays for admittance to the Law. But the doorkeeper says that he cannot
grant admittance at the moment. The man thinks it over and then asks if he will be
allowed in later. “It is possible,” says the doorkeeper, “but not at the moment.” Since the
gate stands open, as usual, and the doorkeeper steps to one side, the man stoops to peer
through the gateway into the interior. Observing that, the doorkeeper laughs and says: “If
you are so drawn to it, ‘just try to go in despite my veto. But take note: I am powerful.
And I am only the least of the doorkeepers. From hall to hall there is one doorkeeper after
another, each more powerful than the last. The third doorkeeper is already so terrible that
even I cannot bear to look at him.” These are difficulties the man from the country has
not expected; the Law, he thinks, should surely be accessible at all times and to everyone,
but as he now takes a closer look at the doorkeeper in his fur coat, with his big sharp nose
and long, thin, black Tartar beard, he decides that it is better to wait until he gets
permission to enter. The doorkeeper gives him a stool and lets him sit down at one side of
the door. There he sits for days and years. He makes many attempts to be admitted, and
wearies the doorkeeper by his importunity. The doorkeeper frequently has little
interviews with him, asking him questions about his home and many other things, but the
questions are put indifferently, as great lords put them, and always finish with the
statement that he cannot be let in yet. The man, who has furnished himself with many
things for his journey, sacrifices all he has, however valuable, to bribe the doorkeeper.
The doorkeeper accepts everything, but always with the remark: “I am only taking it to
keep you from thinking you have omitted anything.” During these many years the man
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fixes his attention almost continuously on the doorkeeper. He forgets the other
doorkeepers, and this first one seems to him the sole obstacle preventing access to the
Law. He curses his bad luck, in his early years boldly and loudly; later, as he grows old,
he only grumbles to himself. He becomes childish, and since in his yearlong
contemplation of the doorkeeper he has come to know even the fleas in his fur collar, he
begs the flea ‘ s as well to help him and to change the doorkeeper’s mind. At length his
eyesight begins to fail, and he does not know whether the world is really darker or
whether his eyes are only deceiving him. Yet in his darkness he is now aware of a
radiance that streams inextinguishably from the gateway of the Law. Now he has not very
long to live. Before he dies, all his experiences in these long years gather themselves in
his head to one point, a question he has not yet asked the doorkeeper. He waves him
nearer, since he can no longer raise his stiffening body. The doorkeeper has to bend low
toward him, for the difference in height between them has altered much to the man’s
disadvantage. “What do you want to know now?” asks the doorkeeper; “you are
insatiable.” “Everyone strives to reach the Law,” says the man, “so how does it happen
that for all these many years no one but myself has ever begged for admittance?” The
doorkeeper recognizes that the man has reached his end, and, to let his failing senses
catch the words, roars in his ear: “No one else could ever be admitted here, since this gate
was made only for you. I am now going to shut it.”

28 U.S.C. §§ 2071-2077

1963 Amendments to the Federal Rules of Civil Procedure

31 F.R.D. 587
U.S. Supreme Court
January 21, 1963

Mr. Justice BLACK and Mr. Justice DOUGLAS are opposed to the submission of
these rules to the Congress under a statute which permits them to “take effect” and to
repeal “all laws in conflict with such rules” without requiring any affirmative
consideration, action, or approval of the rules by Congress or by the President.2 We
believe that while some of the Rules of Civil Procedure are simply housekeeping details,
many determine matters so substantially affecting the rights of litigants in law suits that
in practical effect they are the equivalent of new legislation which, in our judgment, the
Constitution requires to be initiated in and enacted by the Congress and approved by the
President. The Constitution, as we read it, provides that all laws shall be enacted by the
House, the Senate, and the President, not by the mere failure of Congress to reject
proposals of an outside agency. Even were there not this constitutional limitation, the
authorizing statute itself qualifies this Court’s power by imposing upon it a solemn
responsibility not to submit rules that “abridge, enlarge or modify any substantive right”
and by specifically charging the Court with the duty to “preserve the right to trial by jury
as at common law and as declared by the Seventh Amendment to the Constitution.”6 Our
chief objections to the rules relate essentially to the fact that many of their provisions do

2
FN2 28 U.S.C. § 2072....
6
[Id.]
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“abridge, enlarge or modify” substantive rights and do not “preserve the right to trial by
jury” but actually encroach upon it.
(1)(a) Rule 50(a) is amended by making the order of a judge granting a motion for
a directed verdict effective without submitting the question to the jury at all. It was
pointed out in Galloway v. United States, 319 U.S. 372 (1943) (dissenting opinion), how
judges have whittled away or denied the right of trial by jury through the devices of
directed verdicts and judgments notwithstanding verdicts. Although the amendment here
is not itself a momentous one, it gives formal sanction to the process by which the courts
have been wresting from juries the power to render verdicts. Since we do not approve of
this sapping of the Seventh Amendment’s guarantee of a jury trial, we cannot join even
this technical coup de grace.
(b) The proposed amendment to 50(c) in practical effect vests appellate courts
with more power than they have had to grant or deny new trials. The Court in Cone v.
West Virginia Pulp & Paper Co., 330 U.S. 212, 217-218 (1947), and Globe Liquor Co. v.
San Roman, 332 U.S. 571 (1948), refused to construe the federal rules then existing to
allow Courts of Appeals to interfere with trial judges’ discretion to grant new trials. To
the extent that jury verdicts are to be set aside and new trials granted, we believe that
those who hear the evidence, the trial judges, are the ones who should primarily exercise
such discretion.
(c) The proposed amendment to Rule 56(e) imposes additional burdens upon
litigants to protect against summary judgments rendered without hearing evidence on the
part of witnesses who are confronted by the persons against whom they testify so that
these persons can subject the witnesses to cross-examination. The summary judgment
procedure, while justified in some cases, is made a handy instrument to let judges rather
than juries try law suits and to let those judges try cases not on evidence of witnesses
subjected to cross-examination but on ex parte affidavits obtained by parties. Most trial
lawyers would agree, we think, that a litigant can frequently obtain in an actual trial
favorable testimony which could not have been secured by affidavits or even by
depositions.
(d) If there are to be amendments, Rule 49 should be repealed. That rule
authorizes judges to require juries to return “only a special verdict in the form of a special
written finding upon each issue of fact” or to answer “written interrogatories upon one or
more issues of fact the decision of which is necessary to a verdict” in addition to
rendering the general verdict. Such devices are used to impair or wholly take away the
power of a jury to render a general verdict. One of the ancient, fundamental reasons for
having general jury verdicts was to preserve the right of trial by jury as an indispensable
part of a free government. Many of the most famous constitutional controversies in
England revolved around litigants’ insistence, particularly in seditious libel cases, that a
jury had the right to render a general verdict without being compelled to return a number
of subsidiary findings to support its general verdict. Some English jurors had to go to jail
because they insisted upon their right to render general verdicts over the repeated
commands of tyrannical judges not to do so. Rule 49 is but another means utilized by
courts to weaken the constitutional power of juries and to vest judges with more power to
decide cases according to their own judgments. A scrutiny of the special verdict and
written interrogatory cases in appellate courts will show the confusion that necessarily
results from the employment of these devices and the ease with which judges can use
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them to take away the right to trial by jury. We believe that Rule 49 be repealed, not
amplified.
(2) There is a proposal to amend Rule 41, which provides for dismissal of actions.
We believe that, if the Rules are to be changed, a major amendment to this rule is
required in the interest of justice. Before dismissing a plaintiff’s action for failure of his
lawyer to prosecute, the trial judge should be required to have notice served on the
plaintiff himself. The hardship that can result from the absence of such requirement is
shown by Link v. Wabash R. Co., 370 U.S. 626 (1962). Link’s lawyer failed to appear in
response to a judge’s order for a pre-trial conference, and the judge dismissed the case.
As pointed out in the dissent, plaintiff had been severely injured, and a fair system of
justice should not have penalized him because his lawyer, through neglect or any other
reason, failed to appear when ordered. It would do a defendant no injury for the court to
refuse to dismiss any apparently bona fide case until the plaintiff has actually had notice
that some failure of his lawyer has irked the judge.
(3) Mr. Justice BLACK and Mr. Justice DOUGLAS object to the changes in Rule
4, which for the first time permit a Federal District Court to obtain jurisdiction over a
defendant by service of process outside the state or over his property by garnishment or
attachment, under the circumstances and in the manner prescribed by state law. Those
changes will apparently have little effect insofar as “federal question” litigation is
concerned, since 28 U.S.C. § 1391(b) requires such suits to be brought “only in the
judicial district where all defendants reside....” Diversity actions, however, may be
greatly increased, for the effect of proposed 4(e) is not limited to suits authorized by such
statutes as the Federal Interpleader Act, 28 U.S.C. § 1335. See Advisory Committee
Rept., 5-8; 28 U.S.C. § 1391(a); Fed. Rules Civ. Proc. 1. We see no justification for an
increase in the number of diversity cases. We also see no reason why the extent of a
Federal District Court’s personal jurisdiction should depend upon the existence or
nonexistence of a state “long-arm” statute. Moreover, at present a state court action
commenced by attachment or garnishment can get into a District Court only if a
nonresident defendant chooses to appear and remove the case, see 28 U.S.C. § 1441, and
there is no good reason, absent a congressional finding, why this should be changed.
Instead of recommending changes to the present Rules, we recommend that the
statute authorizing this Court to prescribe Rules of Civil Procedure, if it is to remain a
law, be amended to place the responsibility upon the Judicial Conference rather than
upon this Court. Since the statute was first enacted in 1934, 48 Stat. 1064, the Judicial
Conference has been enlarged and improved and is now very active in its surveillance of
the work of the federal courts and in recommending appropriate legislation to Congress.
The present Rules produced under 28 U.S.C. § 2072 are not prepared by us but by
Committees of the Judicial Conference designated by the Chief Justice, and before
coming to us they are approved by the Judicial Conference pursuant to 28 U.S.C. § 331.
The Committees and the Conference are composed of able and distinguished members
and they render a high public service. It is they, however, who do the work, not we, and
the rules have only our imprimatur. The only contribution that we actually make is an
occasional exercise of a veto power. If the rule-making for Federal District Courts is to
continue under the present plan, we believe that the Supreme Court should not have any
part in the task; rather, the statute should be amended to substitute the Judicial
Conference. The Judicial Conference can participate more actively in fashioning the
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rules and affirmatively contribute to their content and design better than we can. Transfer
of the function to the Judicial Conference would relieve us of the embarrassment of
having to sit in judgment on the constitutionality of rules which we have approved and
which as applied in given situations might have to be declared invalid.

1993 Amendments to the Federal Rules of Civil Procedure

146 F.R.D. 401
U.S. Supreme Court
April 22, 1993

Statement of Justice WHITE. 28 U.S.C. § 2072 empowers the Supreme Court to

prescribe general rules of practice and procedure and rules of evidence for cases in the
federal courts, including proceedings before magistrates and courts of appeals. But the
Court does not itself draft and initially propose these rules. Section 2073 directs the
Judicial Conference to prescribe the procedures for proposing the rules mentioned in §
2072. The Conference is authorized to appoint committees to propose such rules. These
rules advisory committees are to be made up of members of the professional bar and trial
and appellate judges. The Conference is also to appoint a standing committee on rules of
practice and evidence to review the recommendations of the advisory committees and to
recommend to the Conference such rules and amendments to those rules “as may be
necessary to maintain consistency and otherwise promote the interest of justice.” §
2073(b). Any rules approved by the Conference are transmitted to the Supreme Court,
which in turn transmits any rules “prescribed” pursuant to § 2072 to the Congress.
Except as provided in § 2074(b), such rules become effective at a specified time unless
Congress otherwise provides.
The members of the advisory and standing committees are carefully named by
The Chief Justice, and I am quite sure that these experienced judges and lawyers take
their work very seriously. It is also quite evident that neither the standing committee nor
the Judicial Conference merely rubber stamps the proposals recommended to it. It is not
at all rare that advisory committee proposals are returned to the originating committee for
further study.
During my 31 years on the Court, the number of advisory committees has grown
as necessitated by statutory changes. During that time, by my count at least, on some 64
occasions we have “prescribed” and transmitted to Congress a new set of rules or
amendments to certain rules. Some of the transmissions have been minor, but many of
them have been extensive. Over this time, Justices Black and Douglas, either together or
separately, dissented 13 times on the ground that it was inappropriate for the Court to
pass on the merits of the rules before it. Aside from those two Justices, Justices Powell,
Stewart and then-Justice REHNQUIST dissented on one occasion and Justice
O’CONNOR on another as to the substance of proposed rules. 446 U.S. 995, 997 (1980)
(Powell, J., dissenting); 461 U.S. 1117, 1119 (1983) (O’CONNOR, J., dissenting). Only
once in my memory did the Court refuse to transmit some of the rule changes proposed
by the Judicial Conference. 500 U.S. ___ (1991).
That the Justices have hardly ever refused to transmit the rules submitted by the
Judicial Conference and the fact that, aside from Justices Black and Douglas, it has been
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quite rare for any Justice to dissent from transmitting any such rule, suggest that a sizable
majority of the 21 Justices who sat during this period concluded that Congress intended
them to have a rather limited role in the rulemaking process. The vast majority
(including myself) obviously have not explicitly subscribed to the Black-Douglas view
that many of the rules proposed dealt with substantive matters that the Constitution
reserved to Congress and that in any event were prohibited by § 2072’s injunction against
abridging, enlarging or modifying substantive rights.
Some of us, however, have silently shared Justice Black’s and Justice Douglas’
suggestion that the enabling statutes be amended

to place the responsibility upon the Judicial Conference rather than upon this
Court. Since the statute was first enacted in 1934, 48 Stat. 1064, the Judicial
Conference has been enlarged and improved and is now very active in its
surveillance of the work of the federal courts and in recommending appropriate
legislation to Congress. The present rules produced under 28 U.S.C. § 2072 are
not prepared by us but by Committees of the Judicial Conference designated by
THE CHIEF JUSTICE, and before coming to us they are approved by the Judicial
Conference pursuant to 28 U.S.C. § 331. The Committees and the Conference are
composed of able and distinguished members and they render a high public
service. It is they, however, who do the work, not we, and the rules have only our
imprimatur. The only contribution that we actually make is an occasional
exercise of a veto power. If the rule-making for Federal District Courts is to
continue under the present plan, we believe that the Supreme Court should not
have any part in the task; rather, the statute should be amended to substitute the
Judicial Conference. The Judicial Conference can participate more actively in
fashioning the rules and affirmatively contribute to their content and design better
than we can. Transfer of the function to the Judicial Conference would relieve us
of the embarrassment of having to sit in judgment on the constitutionality of rules
which we have approved and which as applied in given situations might have to
be declared invalid.

374 U.S. 865, 869-870 (1963) (footnote omitted).

Despite the repeated protestations of both or one of those Justices, Congress did
not eliminate our participation in the rulemaking process. Indeed, our statutory role was
continued as the coverage of §2072 was extended to the rules of evidence and to
proceedings before magistrates. Congress clearly continued to direct us to “prescribe”
specified rules. But most of us concluded that for at least two reasons Congress could not
have intended us to provide another layer of review equivalent to that of the standing
committee and the Judicial Conference. First, to perform such a function would take an
inordinate amount of time, the expenditure of which would be inconsistent with the
demands of a growing caseload. Second, some us, and I remain of this view, were quite
sure that the Judicial Conference and its committees, “being in large part judges of the
lower courts and attorneys who are using the Rules day in and day out, are in a far better
position to make a practical judgment upon their utility or inutility than we.” 383 U.S.
1089, 1090 (1966) (Douglas, J., dissenting).
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I did my share of litigating when in practice and once served on the Advisory
Committee for the Civil Rules, but the trial practice is a dynamic profession, and the
longer one is away from it the less likely it is that he or she should presume to second-
guess the careful work of the active professionals manning the rulemaking committees,
work that the Judicial Conference has approved. At the very least, we should not perform
a de novo review and should defer to the Judicial Conference and its committees as long
as they have some rational basis for their proposed amendments.
Hence, as I have seen the Court’s role over the years, it is to transmit the Judicial
Conference’s recommendations without change and without careful study, as long as
there is no suggestion that the committee system has not operated with integrity. If it has
not, such a fact, or even such a claim, about a body so open to public inspection would
inevitably surface. This has been my practice, even though on several occasions, based
perhaps on out-of-date conceptions, I had serious questions about the wisdom of
particular proposals to amend certain rules.
In connection with the proposed rule changes now before us, there is no
suggestion that the rulemaking process has failed to function properly. No doubt the
proposed changes do not please everyone, as letters I have received indicate. But I
assume that such opposing views have been before the committees and have been
rejected on the merits. That is enough for me.
Justice Douglas thought that the Court should be taken out of the rulemaking
process entirely, but as long as Congress insisted on our “prescribing” rules, he refused to
be a mere conduit and would dissent to forwarding rule changes with which he disagreed.
I note that Justice SCALIA seems to follow that example. But I also note that as time
went on, Justice Douglas confessed to insufficient familiarity with the context in which
new rules would operate to pass judgment on their merits.
In conclusion, I suggest that it would be a mistake for the bench, the bar, or the
Congress to assume that we are duplicating the function performed by the standing
committee or the Judicial Conference with respect to changes in the various rules which
come to us for transmittal. As I have said, over the years our role has been a much more
limited one.

Justice SCALIA, with whom Justice THOMAS joins, and with whom Justice SOUTER
joins as to Part II, filed a dissenting statement.

I dissent from the Court’s adoption of the amendments to Federal Rules of Civil
Procedure 11 (relating to sanctions for frivolous litigation), and 26, 30, 31, 33, and 37
(relating to discovery). In my view, the sanctions proposal will eliminate a significant
and necessary deterrent to frivolous litigation; and the discovery proposal will increase
litigation costs, burden the district courts, and, perhaps worst of all, introduce into the
trial process an element that is contrary to the nature of our adversary system.

Rule 11
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It is undeniably important to the Rules’ goal of “the just, speedy, and inexpensive
determination of every action,” Fed. Rule Civ. Proc. 1, that frivolous pleadings and
motions be deterred. The current Rule 11 achieves that objective by requiring sanctions
when its standards are violated (though leaving the court broad discretion as to the
manner of sanction), and by allowing compensation for the moving party’s expenses and
attorney’s fees. The proposed revision would render the Rule toothless, by allowing
judges to dispense with sanction, by disfavoring compensation for litigation expenses,
and by providing a 21-day “safe harbor” within which, if the party accused of a frivolous
filing withdraws th e filing, he is entitled to escape with no sanction at all.
To take the last first: In my view, those who file frivolous suits and pleadings
should have no “safe harbor.” The Rules should be solicitous of the abused (the courts
and the opposing party), and not of the abuser. Under the revised Rule, parties will be
able to file thoughtless, reckless, and harassing pleadings, secure in the knowledge that
they have nothing to lose: If objection is raised, they can retreat without penalty. The
proposed revision contradicts what this Court said only three years ago: “Baseless filing
puts the machinery of justice in motion, burdening courts and individuals alike with
needless expense and delay. Even if the careless litigant quickly dismisses the action, the
harm triggering Rule 11’s concerns has already occurred. Therefore, a litigant who
violates Rule 11 merits sanctions even after a dismissal.” Cooter & Gell v. Hartmarx
Corp., 496 U.S. 384, 398 (1990). The advisory committee itself was formerly of the
same view. Ibid. (quoting Letter from Chairman, Advisory Committee on Civil Rules).
The proposed Rule also decreases both the likelihood and the severity of
punishment for those foolish enough not to seek refuge in the safe harbor after an
objection is raised. Proposed subsection (c) makes the issuance of any sanction
discretionary, whereas currently it is required. Judges, like other human beings, do not
like imposing punishment when their duty does not require it, especially upon their own
acquaintances and members of their own profession. They do not immediately see,
moreover, the system-wide benefits of serious Rule 11 sanctions, though they are
intensely aware of the amount of their own time it would take to consider and apply
sanctions in the case before them. For these reasons, I think it important to the
effectiveness of the scheme that the sanctions remain mandatory.
Finally, the likelihood that frivolousness will even be challenged is diminished by
the proposed Rule, which restricts the award of compensation to “unusual
circumstances,” with monetary sanctions “ordinarily” to be payable to the court.
Advisory Committee Notes to Proposed Rule 11, pp. 53- 54. Under Proposed Rule 11(c)
(2), a court may order payment for “some or all of the reasonable attorneys’ fees and
other expenses incurred as a direct result of the violation” only when that is “warranted
for effective deterrence.” Since the deterrent effect of a fine is rarely increased by
altering the identity of the payee, it takes imagination to conceive of instances in which
this provision will ever apply. And the commentary makes it clear that even when
compensation is granted it should be granted stingily-- only for costs “directly and
unavoidably caused by the violation.” Id., at 54. As seen from the viewpoint of the
victim of an abusive litigator, these revisions convert Rule 11 from a means of obtaining
compensation to an invitation to throw good money after bad. The net effect is to
decrease the incentive on the part of the person best situated to alert the court to
perversion of our civil justice system.
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I would not have registered this dissent if there were convincing indication that
the current Rule 11 regime is ineffective, or encourages excessive satellite litigation. But
there appears to be general agreement, reflected in a recent report of the advisory
committee itself, that Rule 11, as written, basically works. According to that report, a
Federal Judicial Center survey showed that 80% of district judges believe Rule 11 has
had an overall positive effect and should be retained in its present form, 95% believed the
Rule had not impeded development of the law, and about 75% said the benefits justify the
expenditure of judicial time. See Interim Report on Rule 11, Advisory Committee on
Civil Rules, reprinted in G. Vairo, Rule 11 Sanctions: Case Law Perspectives and
Preventive Measures, App. I-8-I-10 (2d ed. 1991). True, many lawyers do not like Rule
11. It may cause them financial liability, it may damage their professional reputation in
front of important clients, and the cost-of-litigation savings it produces are savings not to
lawyers but to litigants. But the overwhelming approval of the Rule by the federal
district judges who daily grapple with the problem of litigation abuse is enough to
persuade me that it should not be gutted as the proposed revision suggests.

II

Discovery Rules

The proposed radical reforms to the discovery process are potentially disastrous
and certainly premature--particularly the imposition on litigants of a continuing duty to
disclose to opposing counsel, without awaiting any request, various information “relevant
to disputed facts alleged with particularity.” See Proposed Rule 26(a)(1)(A), (a)(1)(B),
(e)(1). This proposal is promoted as a means of reducing the unnecessary expense and
delay that occur in the present discovery regime. But the duty-to-disclose regime does
not replace the current, much-criticized discovery process; rather, it adds a further layer
of discovery. It will likely increase the discovery burdens on district judges, as parties
litigate about what is “relevant” to “disputed facts,” whether those facts have been
alleged with sufficient particularity, whether the opposing side has adequately disclosed
the required information, and whether it has fulfilled its continuing obligation to
supplement the initial disclosure. Documents will be produced that turn out to be
irrelevant to the litigation, because of the early inception of the duty to disclose and the
severe penalties on a party who fails to disgorge in a manner consistent with the duty.
See Proposed Rule 37(c) (prohibiting, in some circumstances, use of witnesses or
information not voluntarily disclosed pursuant to the disclosure duty, and authorizing
divulgement to the jury of the failure to disclose).
The proposed new regime does not fit comfortably within the American judicial
system, which relies on adversarial litigation to develop the facts before a neutral
decisionmaker. By placing upon lawyers the obligation to disclose information damaging
to their clients--on their own initiative, and in a context where the lines between what
must be disclosed and what need not be disclosed are not clear but require the exercise of
considerable judgment--the new Rule would place intolerable strain upon lawyers’ ethical
duty to represent their clients and not to assist the opposing side. Requiring a lawyer to
make a judgment as to what information is “relevant to disputed facts” plainly requires
 11

him to use his professional skills in the service of the adversary. See Advisory
Committee Notes to Proposed Rule 26, p. 96.
It seems to me most imprudent to embrace such a radical alteration that has not, as
the advisory committee notes, see id., at 94, been subjected to any significant testing on a
local level. Two early proponents of the duty-to-disclose regime (both of whom had
substantial roles in the development of the proposed rule--one as Director of the Federal
Judicial Center and one as a member of the advisory committee) at one time noted the
need for such study prior to adoption of a national rule. Schwarzer, The Federal Rules,
the Adversary Process, and Discovery Reform, 50 U. Pitt. L. Rev. 703, 723 (1989);
Brazil, The Adversary Character of Civil Discovery: A Critique and Proposals for
Change, 31 Vand. L. Rev. 1295, 1361 (1978). More importantly, Congress itself reached
the same conclusion that local experiments to reduce discovery costs and abuse are
essential before major revision, and in the Civil Justice Reform Act of 1990, Pub. L. 101-
650, §§ 104, 105, 104 Stat. 5097-5098, mandated an extensive pilot program for district
courts. See also 28 U.S.C. §§471, 473(a)(2)(C). Under that legislation, short-term
experiments relating to discovery and case management are to last at least three years,
and the Judicial Conference is to report the results of these experiments to Congress,
along with recommendations, by the end of 1995. Pub. L. 101-650, § 105, 104 Stat.
5097-5098. Apparently, the advisory committee considered this timetable schedule too
prolonged, see Advisory Committee Notes to Proposed Rule 26, p. 95, preferring instead
to subject the entire federal judicial system at once to an extreme, costly, and essentially
untested revision of a major component of civil litigation. That seems to me unwise.
Any major reform of the discovery rules should await completion of the pilot programs
authorized by Congress, especially since courts already have substantial discretion to
control discovery. See Fed. Rule Civ. Proc. 26.
I am also concerned that this revision has been recommended in the face of nearly
universal criticism from every conceivable sector of our judicial system, including
judges, practitioners, litigants, academics, public interest groups, and national, state and
local bar and professional associations…. Indeed, after the proposed rule in essentially
its present form was published to comply with the notice-and-comment requirement of 28
U.S.C. §2071(b), public criticism was so severe that the advisory committee announced
abandonment of its duty-to-disclose regime (in favor of limited pilot experiments), but
then, without further public comment or explanation, decided six weeks later to
recommend the rule….
Constant reform of the federal rules to correct emerging problems is essential.
JUSTICE WHITE observes that Justice Douglas, who in earlier years on the Court had
been wont to note his disagreements with proposed changes, generally abstained from
doing so later on, acknowledging that his expertise had grown stale. Never having
specialized in trial practice, I began at the level of expertise (and of acquiescence in
others’ proposals) with which Justice Douglas ended. Both categories of revision on
which I remark today, however, seem to me not matters of expert detail, but rise to the
level of principle and purpose that even Justice Douglas in his later years continued to
address. It takes no expert to know that a measure which eliminates rather than
strengthens a deterrent to frivolous litigation is not what the times demand; and that a
breathtakingly novel revision of discovery practice should not be adopted nationwide
without a trial run.
 12

In the respects described, I dissent from the Court’s order.

William Lewis SMITH v. Wayne S. BARRY, et al.

502 U.S. 244 (1992)
U.S. Supreme Court
January 14, 1992

JUDGES: O’CONNOR, J., delivered the opinion of the Court, in which REHNQUIST,
C. J., and WHITE, BLACKMUN, STEVENS, KENNEDY, SOUTER, and THOMAS,
JJ., joined. SCALIA, J., filed an opinion concurring in the judgment....

Justice O’CONNOR delivered the opinion of the Court.

Rule 3 of the Federal Rules of Appellate Procedure conditions federal appellate

jurisdiction on the filing of a timely notice of appeal. In this case, we hold that a
document intended to serve as an appellate brief may qualify as the notice of appeal
required by Rule 3.

While an inmate at the Maryland State Penitentiary, petitioner William Smith

filed a pro se action against two prison administrators, seven corrections officers, two
state psychologists, and named respondent Dr. Wayne Barry, a private physician. Suing
under 42 U.S.C. § 1983, Smith alleged that he suffered from a psychogenic pain disorder
and that the defendants’ refusal to provide him with a wheelchair constituted cruel and
unusual punishment in violation of the Eighth Amendment. Smith further alleged that the
officers used excessive force against him, also in violation of the Eighth Amendment.
The District Court dismissed Dr. Barry as a defendant on the ground that he did
not act under color of state law when treating Smith and therefore was not subject to suit
under § 1983.... The case proceeded to trial in 1988, following appointment of counsel.
After Smith presented his case in chief, the District Court directed a verdict for the prison
administrators and officers on Smith’s wheelchair claim, and for the administrators and
three officers on his excessive force claim. The jury ultimately rejected Smith’s
excessive force claim against the four remaining officers. However, it found that the staff
psychologists were deliberately indifferent to Smith’s medical needs and awarded
$15,000 in damages.
The two psychologists filed a timely motion for judgment notwithstanding the
verdict (J.N.O.V.). Without consulting his attorney, and while the motion for J.N.O.V.
was pending, Smith filed a notice of appeal. Smith’s trial counsel learned of the notice of
appeal after the District Court denied the psychologists’ motion. In a letter dated April
21, 1988, he wrote Smith:

“I am certain from the circumstances that [the notice of appeal] is premature and
thus void.
 13

“. . . The Order denying the Motion for J.N.O.V. was entered April 13, 1988.
This would give you up until May 13, 1988 before you must file an appeal. I
would urge you to take by [sic] advice and not file an appeal, or at least seek a
second legal opinion on the matter.”...

Smith’s notice of appeal was in fact invalid under Federal Rule of Appellate
Procedure 4(a)(4), which provides that a notice of appeal filed before the disposition of a
timely J.N.O.V. motion is without effect. Although the Fourth Circuit’s jurisdiction had
not been properly invoked, its Clerk responded to the notice of appeal by sending all of
the parties copies of the “informal brief” the court uses in pro se appeals and an order
explaining the court’s procedures. The briefing forms asked the parties to answer six
questions about their legal positions. Under its Rules, the Fourth Circuit reviews these
responses and the record to determine whether appointment of counsel and/or oral
argument are warranted. See CA4 Rule 34(b). Smith returned his informal brief to the
Court of Appeals on May 4, 1988, within the deadline for filing a notice of appeal.
After appointment of appellate counsel, the Fourth Circuit dismissed Smith’s
appeal for want of jurisdiction. It held that Smith’s notice of appeal was untimely and
that his informal brief was not “the ‘functional equivalent’” of the notice of appeal Rule 3
requires. Smith v. Galley, 919 F.2d 893, 895 (1990) (quoting Torres v. Oakland
Scavenger Co., 487 U.S. 312, 317 (1988)). The court reasoned that Smith filed the
informal brief in response to a briefing order and that the Federal Rules envision that the
notice of appeal and the appellate brief will be two separate documents. 919 F.2d at 895-
896. In a footnote, the court listed specific omissions that might render Smith’s informal
brief inadequate as a notice of appeal. Id., at 896, n. 7. Given its conclusion that a brief
can never be considered a notice of appeal, however, the Fourth Circuit expressed no
opinion on the significance of these omissions. Ibid.
We granted certiorari, 501 U.S. 1249 (1991), to decide whether an appellate brief
may serve as the notice of appeal required by Rule 3....

II

Federal Rule of Appellate Procedure 3(a) provides, in pertinent part, that “an
appeal permitted by law as of right from a district court to a court of appeals shall be
taken by filing a notice of appeal with the clerk of the district court within the time
allowed by Rule 4.” Rule 3(c) governs the content of notices of appeal: Notices “shall
specify the party or parties taking the appeal; shall designate the judgment, order or part
thereof appealed from; and shall name the court to which the appeal is taken.”
Courts will liberally construe the requirements of Rule 3.... Thus, when papers
are “technically at variance with the letter of [Rule 3], a court may nonetheless find that
the litigant has complied with the rule if the litigant’s action is the functional equivalent
of what the rule requires.” Torres, supra, at 316-317. This principle of liberal
construction does not, however, excuse noncompliance with the Rule. Rule 3’s dictates
are jurisdictional in nature, and their satisfaction is a prerequisite to appellate review.
Torres, supra. Although courts should construe Rule 3 liberally when determining
whether it has been complied with, noncompliance is fatal to an appeal.
 14

[1] In this case, the Court of Appeals recognized that it was required to determine
whether Smith’s brief was the “functional equivalent” of the formal notice of appeal
demanded by Rule 3, 919 F.2d at 895, but it erred in applying that standard. The court
reasoned that because Smith filed his informal brief in response to a briefing order, “the
document was not the result of Smith’s intent to initiate an appeal.” Id., at 895-896. This
logic is dubious, since Smith received the briefing form as a result of filing a notice of
appeal, albeit a premature one.

[***LEdHR1D] [1D]LEdHR(1D) [***LEdHR4] [4]LEdHR(4)More importantly, the

court should not have relied on Smith’s reasons for filing the brief. HN3While a notice
of appeal must specifically indicate the litigant’s intent to seek appellate review, …the
purpose of this requirement is to ensure that the filing provides sufficient notice to other
parties and the courts... [2] Thus, the notice afforded by a document, not the litigant’s
motivation in filing it, determines the document’s sufficiency as a notice of appeal. If a
document [*249] filed within the time specified by Rule 4 gives the notice required by
Rule 3, it is effective as a notice of appeal.

[***LEdHR1E] [1E]LEdHR(1E)The Fourth Circuit’s other ground for dismissing

Smith’s appeal is also insufficient. [3] The Federal Rules do envision that the notice of
appeal and the appellant’s brief will be two separate filings. Compare Fed. Rule App.
Proc. 3(c) (content of notice of appeal) with Fed. Rule App. Proc. 28(a) (content of
appellant’s brief). HN4They do not preclude an appellate court from treating a filing
styled as a brief as a notice of appeal, however, if the filing is timely under Rule 4 and
conveys the information required by Rule 3(c). Such treatment is in fact appropriate
under Torres and under Rule 3(c)’s provision that “an appeal shall not be dismissed for
informality of form or title of the notice of appeal.”

Having accepted a paper as the notice of appeal required by Rule 3, an appellate court
might require timely filing of a second document meeting its standards for a brief or, if
the paper meets those standards, take such other action as it deems [***686] appropriate
to ensure that the filing sequence contemplated by the Rules is not disturbed. See, e.g.,
Fed. Rule App. Proc. 10(b) (time for ordering transcripts for inclusion in the record on
appeal); Fed. Rule App. Proc. 31(a) (briefing schedule). HN5Proper briefing is not,
however, a jurisdictional requirement under the Federal Rules of Appellate Procedure.
See Fed. Rule App. Proc. 3(a) (“Failure of an appellant to take any step other than the
timely filing of a notice of appeal does not affect the validity of the appeal . . .”).
***
[4] Finally, respondents argue that Smith’s brief is not an adequate notice of
appeal because it lacks information required by Rule 3(c). Having held that an informal
brief can never substitute for a formal notice of appeal, the Court of Appeals declined to
reach this question. 919 F.2d at 896, n. 7. On remand, it should undertake the
appropriate analysis….

[**683] The judgment of the Court of Appeals is reversed, and the case is remanded for
further proceedings consistent with this opinion.
 15

It is so ordered.

Justice SCALIA, concurring in the judgment.

[1] I agree with the judgment because Federal Rule of Appellate Procedure 3(c) provides
that “an appeal shall not be dismissed for informality of form or title of the notice of
appeal.” [2] I do not rely on the theory that petitioner’s brief was the “‘functional
equivalent’” of a notice of appeal under a “liberal construction” of Rule 3. Ante…. “We
should seek to interpret the rules neither liberally nor stingily, but only, as best we can,
according to their apparent intent.” Torres v. Oakland Scavenger Co., 487 U.S. 312, 319,
101 L. Ed. 2d 285, 108 S. Ct. 2405 (1988) (SCALIA, J., concurring in judgment).