ELMO C. TATUM of Lincoln, Neb., must have been miffed, to say the least, when he heard that the Supreme Court had ordered him to pay the University of Nebraska $500 in damages. Like most plaintiffs, Mr. Tatum had brought a lawsuit in the hope of gaining money, not losing it. He sued the University of Nebraska in federal court, charging racial discrimination and seeking damages; after losing in trial and appellate courts, he sought review by the Supreme Court. In lower courts the university filed a counterclaim for tuition and other payments Mr. Tatum allegedly owed; in the Supreme Court it sought damages under Supreme Court Rule 49.2, which says the Court may award damages when a petition is "frivolous."
The court seems to have been been waiting for an appropriate case to invoke this relatively new rule; it may have chosen this one because Mr. Tatum was put on notice that the university was seeking damages and had a chance to respond on that issue. These five justices, and others as well, have complained publicly about the court's workload, and anyone who examines all the cases filed with the court knows that a large proportion are, by any fair definition of the word, frivolous. Now litigants are on notice that it may cost them something more than their time to file a case with the Supreme Court.
The justices are not alone in feeling that the country is plagued with too much litigation, and they may turn out not to be alone in trying to discourage it by penalizing frivolous litigants. In England, attorney's fees for both sides are often paid by the loser of a lawsuit--a powerful disincentive to sue. No one proposes such a drastic change in the system here. But it is possible that in the next several years, one or more states will experiment with a system awarding damages or even attorney's fees to winners of lawsuits.
People should remember, as they watch such experiments, that these attempts to limit the incentive to sue also have their costs. A great deal of the law that has been developed over the last 20 years--not only by courts, but also by Congress and state legislatures--has encouraged those who may have valid claims but limited resources to use the courts to seek recompense. We provide lawyers for the indigent, in both criminal and civil cases; we award attorney's fees to plaintiffs who bring cases and win (and, occasionally, even to those who lose). It is possible that we have been sloppy and overgenerous here and there. But on the whole this has been a benign trend. The courts were not created for the convenience or ease of judges, after all. And access to justice should not be limited to the rich.
So one should be cautious about saying that a particular lawsuit is "frivolous." Judges may be tempted to say of frivolity (as one justice said of hard- core pornography) that although they can't define it, they know it when they see it. But a more rigorous standard is probably needed to convince fair-minded observers, if not every litigant, that people can continue to have fair access to the courts.