At the Volokh Conspiracy, David Bernstein reports that a jury has rejected that ridiculous lawsuit against Southwest Airlines — you know, the one that claimed a stewardess’s recitation of “eenie meenie minie moe” was racially offensive. But, Bernstein says, the claim should have been rejected at the summary judgment stage.

Wrong. Southwest should not have had to waste money on a summary judgment motion, or a motion to dismiss. Southwest should not have had to spend one thin dime defending this suit.

My suggestion: judges should have the authority and the duty to review complaints when they are first filed — before any answer is filed. If the complaint is frivolous — as this one clearly was — the judge can say: “Mmmmmmm, I don’t think so,” and throw the complaint out. If the judge facially rejects a complaint in this manner, the plaintiff can seek a writ in the appellate court, ordering the trial judge to allow the complaint to move forward. The defendant would have no standing to file a brief. If the plaintiff fails to obtain the writ, sanctions for bringing the failed writ application would be automatic, in an amount determined by the appellate court (according to how frivolous the complaint was).

Of course, if judges lack backbone (as the one in this case clearly did), this mechanism will not be completely effective. But properly implemented, this procedure could go a long way towards reducing the burden of defending against patently frivolous lawsuits.