Also known as: ius novum · new law
Written by attorneys · grounded in primary & secondary sources — see below
A legal contention advanced in a pleading or discovery paper that seeks to establish new law. The contention satisfies certification requirements when supported by a nonfrivolous argument for extending, modifying, or reversing existing doctrine.
NovaApps sued TitanSoft alleging theft of customized open-source code. Its lawyer filed a complaint seeking an injunction based on a theory that customized implementations deserve proprietary protection despite the algorithm being public domain. The court denied sanctions because the theory constituted a nonfrivolous proposal to recognize new intellectual-property rights.
Peak Life Sciences served sweeping document requests on River Therapeutics seeking five years of lab notebooks and emails across all research divisions. Counsel certified the requests as consistent with the rules and supported by a nonfrivolous argument for extending discovery principles given the integrated corporate structure. The court found the certification adequate under the standard.
Select any source to read its text and confirm it supports the definition.
A utility challenged state energy regulations in federal court by advancing a novel preemption theory that existing federal statutes should be read to occupy the entire field. The complaint framed the argument as an incremental development of dormant-commerce-clause principles. The court evaluated the contention under the certification standard for new-law proposals.
A litigant moved to disqualify a judge by asserting an expansive due-process theory that large campaign contributions create an unconstitutional appearance of bias even without actual influence. Counsel presented the position as a reasoned extension of existing recusal precedents. The court assessed whether the argument qualified as nonfrivolous under the certification requirement.
A plaintiff challenged a state statute setting different drinking ages for men and women by advancing a new equal-protection theory that intermediate scrutiny should apply to all gender classifications in regulatory contexts. The complaint framed the argument as a logical evolution of existing precedent. The court considered the contention under the standard permitting nonfrivolous proposals for doctrinal change.
Landowners sued the government asserting a novel takings claim that federal restrictions on inherited property interests constituted a compensable taking even though prior doctrine had treated such interests as noncompensable. Counsel presented the theory as a good-faith request to establish new Fifth Amendment protections. The court evaluated the argument under the certification rule for new-law contentions.
Yes. The rule expressly allows contentions supported by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law. The standard is objective and focuses on whether a reasonable lawyer could view the position as a serious proposal for doctrinal development rather than on whether the argument ultimately succeeds.
Supporting sources
A nonfrivolous argument must rest on some reasonable basis in legal text, structure, policy, or precedent that a competent lawyer could advance in good faith. An argument becomes sanctionable when it is so lacking in legal or analytical support that no reasonable attorney could treat it as a plausible reform proposal.
Supporting sources
Yes. Rule 26(g)(1)(B)(i) requires that every discovery request, response, or objection be warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law. The certification protects good-faith efforts to develop doctrine while deterring frivolous positions.
Supporting sources
…or found the law in making today's decision, nor has it derived it from some irrefutable sources; what it has done is to make new law and new public policy in much the same way that it has in the course of interpreting other great clauses of the Constitution.[^maj-1] This is what the Court historically has done. Indeed,…