Frivolous Cases

The problem of frivolous cases is invoked in a variety of contexts. Although the term is used in the context of Rule 11, it is also used to justify many procedural and substantive changes to the law. For example, concern about frivolous cases is invoked to defend the use of procedural devices that limit litigants' access to courts, including summary judgment, motions to dismiss, heightened pleading, and caps, as well as to justify the narrowing of rights in substantive areas such as prisoner's cases and employment discrimination cases. This symposium essay argues for a different view of frivolous cases - a view that eschews the use of the term and instead proposes a new discussion of the relationship of cost to other rights, including the Seventh Amendment right to a jury trial.