John B. Snyder, III (Baltimore) has published Barbarians at the Gate?: The Law of Frivolity as Illuminated by Pro Se Tax Protest Cases, 54 Wayne L. Rev. 1249 (2008). Here is the Conclusion:
Ultimately, the law of frivolity is a double-edged sword. At its best, it preserves the integrity of the courts and the legal system. Through normative shaming, it enforces a code of behavior for attorneys. It ensures that only legal arguments may be put before courts. Thus, it strengthens the development of a healthy legal subculture.
On the other hand, frivolity at its worst threatens pro se litigants by excluding them from that subculture and fails to accomplish its own goals. Frivolity encourages courts and attorneys to view themselves as an intellectual and perhaps moral elite. Moreover, it encourages hostility to pro se arguments, particularly those cloaked in rhetoric that violates lawyerly norms. This may lead to legitimate arguments' erroneous rejection.
This tension is hardly reason to abandon frivolity as a legal concept. Nor should courts deliberate ponderously over frivolous arguments; they are, and should remain, trespassers in legal discourse. Courts should recognize, however, that to call an argument frivolous is to call it un-legal, a profoundly significant step. Additionally, they should use the practical tips listed in the preceding section to mitigate some of the bad aspects of frivolity in tax protest cases, with an eye toward their eventual expansion to other types of arguments raised by pro se litigants.
To deal effectively with frivolous arguments, courts must show their proponents the meaning of “legal argument,” both by citable example and by sanctioning fearlessly when necessary. In doing so, however, courts must keep in mind that disposing of frivolous pro se arguments is not a waste of time; it is an attempt to educate the public that courts serve.
Nor are pro se litigants, even tax protestors, somehow beneath the legal profession simply because they come to the courthouse not understanding what it means to make a legal argument. They are not the barbarians at the gate, intent on destroying law as attorneys know it. They may be, however, a subculture of their own, just as the legal system is a subculture of society. The tax protest cases that typify frivolous litigation are a meeting of two segments of society that differ wildly in education, behavior, and social norms. They enable the legal system to hold up a mirror to itself, to see itself from the outside. By considering the ways courts, commentators, and attorneys in general think about tax protest arguments and deem them frivolous, the legal community can come to a better understanding of not only the meaning of frivolity, but of its own role in the larger society as a whole, and of the ways it might serve that society better.



