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Loser Pays, Counterpoint
Always read the comments, wherein we found this interesting counterpoint against the "loser pays" form of justice:
So you see, a "loser pays" system creates a problem. We already have laws that allow recoveries against people who file meritless lawsuits or who prosecute an action in bad faith. But if the U.S. legal system had always employed a "loser pays" approach, many legal decisions that we now take for granted could never have happened; for instance, the NAACP would have been bankrupted by their many losses long before Brown v. Board of Education.
The guy is a lawyer, which makes him somewhat suspect, but, well, he is a lawyer, which means he also has insight into the problem that you and I don't.
Balderdash.
First off, we do not have, in any place or sense, a "loser pays" provision. The aggrieved must countersue. There is no guarantee of success. If the suit fails, the litigant has doubled his loss.
Second, a true "loser pays" provision is not confined to "meritless" or "frivolous" suits; it extends to all actions in which a plaintiff has sued and lost. The whole idea is that, if the jury finds the defendant not liable for damages, he ought not to have been injured by the need to defend himself most expensively in court.
Third, the claim that suits such as Brown v. Board would not have reached the Supreme Court is pure speculation, and even if true, does not bear on the outcome for the law, which could have been reached another way. The 1964 Civil Rights Act would have had all of Brown v. Board's effects at desegregating the government-run schools, even if the suit had never occurred.
The commenter is a lawyer looking to ward off a threat to his dubious trade.
Posted by: Francis W. Porretto on March 21, 2004 11:36 AM