Posted by
If you missed it, The Economist has a useful contribution on the renewed interest
among many Americans in adopting the loser-pays principle in civil
litigation, which most countries around the world have long embraced in
light of its fairness and practicality. I’ve been writing in favor of
the idea since my first book, The Litigation Explosion (more links here) and Cato has spotlighted Marie Gryphon’s important recent work on the topic. Mississippi governor-elect Phil Bryant “has already expressed support” for the concept, according to this recent report in the Jackson Clarion-Ledger.
Despite strong interest in liability reform over the past two
decades, no state has joined Alaska (which has had the principle since
territorial days) in adopting an across-the-board loser-pays principle.
Why is that? The opposition of some plaintiff’s lawyers and legal
academics is hardly a full explanation. The fact is that loser-pays
reform remains perpetually sidelined because much of organized big
business quietly or not-so-quietly opposes it. In fact, some D.C.-based
business lobbyists even roam the country attempting to squelch outbursts
of enthusiasm for loser-pays among state legislators and others close
to the grass roots.
Why are these businesses opposed? Some fear that any new set of rules
will be interpreted to their disfavor, or prefer not to rock the boat
for fear of unpredictable consequences; others delegate the issue to
outside lawyers who may see the issue through the lens of their own
professional biases; and yet other businesses recognize and (as
perennial defendants) fear the tendency of loser-pays systems to
vindicate many strong small plaintiff’s claims better than does our
current system. With an open public debate and careful drafting of
reform proposals, I think most of these fears would be assuaged: for
example, most big American firms also operate in Canada, Europe, and
other countries where loser-pays is accepted as a normal feature of the
legal landscape. In the mean time, I wish someone would organize a group
called “Business Leaders for Loser-Pays.”
No comments:
Post a Comment