5 ms·

I am not a legal expert, but I doubt a court would award crippling costs to a little guy who brought a case with genuine merit against a big guy but lost, where

by irons 16y ago

I am not a legal expert, but I doubt a court would award crippling costs to a little guy who brought a case with genuine merit against a big guy but lost, where the little guy incurred only modest costs but the big guy brought the whole legal team to bear. That's a whole lot of conditionals. In places where the judiciary is thoroughly corrupted by electioneering (coal interests in West Virginia, for instance), relying on judges to respond non-punitively can be an unsafe assumption already. A libertarian loser-pays movement only slants that further.

msbarnett 16y ago
Indeed, which suggests that in order to move towards the less acrimonious legal atmosphere of the UK or Europe, you would need to do more than adopt some of their mechanics. You'd ultimately need to de-politicize the entire branch of government. As far as I know, in the UK and most of Europe, and definitely here in Canada, Judges are appointed by judicial commissions on the basis of strength of legal scholarship, not picked in a popular election based on who can raise the most money and pander to the right interest groups.
- irons 16y ago
  Beyond de-politicization, which can cut a lot of different ways, the other factor in acrimony-reduction is the European social safety net. The EU legal system doesn't have to be the tool of last resort to the same extent as in the American style. See also Matt Yglesias: http://yglesias.thinkprogress.org/2008/12/loser_pays/ http://yglesias.thinkprogress.org/2008/12/loser_pays/
  - Silhouette 16y ago
    What do you mean by the "European social safety net"? The legal system should normally be the last resort, but you seem to be suggesting that we have some sort of universal alternative to try first. There may be other options in specific contexts, for example disputes with service providers in regulated industries where there is some sort of ombudsman scheme, but it is not the case in general.
- bokonist 16y ago
  You'd ultimately need to de-politicize the entire branch of government. You mean de-democratize the entire branch of government?
  - Silhouette 16y ago
    Unless your court cases are all heard by the entire population, your judiciary is not a democracy anyway. If your judges are appointed permanently by some sort of panel, drawn from some level of politicians, who are themselves elected via a system that is open to trivial interference by well-funded special interest groups, then your judiciary isn't even close to democratic.
    - iuytguyhj 16y ago
      The judges (in the UK) are appointed from senior lawyers by other judges who were themselves appointed by previous judges etc... It does mean that it takes a few generations to get many black or women judges - but it does reduce the level of corruption and means that a lot of politically motivated prosecutions get thrown out. It's not democratic - but neither is the process of selecting senior doctors from the ranks of junior doctors.
  - kemayo 16y ago
    I don't want my court case being judged by someone who has to consider what that judgement means for their chances of re-election. If they have to campaign, well, that takes money... so they'll need donors... so can they really afford to rule against LocalBigCo?
    - bokonist 16y ago
      I'm not disagreeing with the argument of OP, just the language. Isn't your comment a general indictment of American democracy in general? Why have an elected congress making policies then?
      - Andrew_Quentin 16y ago
Silhouette 16y ago
Everything about a court case is a conditional. It is relatively unusual for the evidence to be so clear-cut that there is no doubt about the verdict, and often a court must make the fairest decision it can based on far less evidence than it might like. That said, this isn't really a hypothetical issue. Our courts function in this way every day. Please understand that to those of us on this side of the Atlantic, everything you are describing just sounds weird. "Judiciary corrupted by electioneering"? Judges responding "non-punitively"? Our judiciary in the UK has a long and honourable tradition of being the standard-bearers of justice that one would hope they would be, and of resisting politicisation far more effectively than the other major branches of government (to the extent that we have them; our system doesn't treat US-style separation of powers as sacrosanct either). Having been in a court on a couple of occasions, although never as a plaintiff or defendant, I have always been impressed by the way the officials conducted themselves. IMHO, our legal system does have its problems when it comes to handling relatively low-value cases, but those are more due to the time and effort required to figure out how the system works and complete all the paperwork than because the legal fees are prohibitive. One injustice I have personally witnessed happened when someone was cleared of a motoring offence, on the second hearing since the first was aborted when courtroom time ran out for that day. That person lost had two days of their life attending court, and presumably also spent considerable time planning their defence (as they were not legally represented). They must also have had the stress and uncertainty from waiting nearly a year to hear the verdict, and presumably lost out on some income that would have been earned on those days they were in court, because even though they were cleared of all charges, defendants do not even seem to get the same expense refunds that witnesses do. I find the fact that someone deemed not guilty in court should still be harmed even to that extent to be unfair. I simply do not understand how any system where someone innocent might wind up paying out hundreds or thousands in a settlement because the danger of having to pay for their own defence in court would be even more could possibly be in the interests of justice.

by irons 16y ago

msbarnett 16y ago

Indeed, which suggests that in order to move towards the less acrimonious legal atmosphere of the UK or Europe, you would need to do more than adopt some of their mechanics. You'd ultimately need to de-politicize the entire branch of government. As far as I know, in the UK and most of Europe, and definitely here in Canada, Judges are appointed by judicial commissions on the basis of strength of legal scholarship, not picked in a popular election based on who can raise the most money and pander to the right interest groups.

irons 16y ago
Beyond de-politicization, which can cut a lot of different ways, the other factor in acrimony-reduction is the European social safety net. The EU legal system doesn't have to be the tool of last resort to the same extent as in the American style. See also Matt Yglesias: http://yglesias.thinkprogress.org/2008/12/loser_pays/ http://yglesias.thinkprogress.org/2008/12/loser_pays/
- Silhouette 16y ago
  What do you mean by the "European social safety net"? The legal system should normally be the last resort, but you seem to be suggesting that we have some sort of universal alternative to try first. There may be other options in specific contexts, for example disputes with service providers in regulated industries where there is some sort of ombudsman scheme, but it is not the case in general.
bokonist 16y ago
You'd ultimately need to de-politicize the entire branch of government. You mean de-democratize the entire branch of government?
- Silhouette 16y ago
  Unless your court cases are all heard by the entire population, your judiciary is not a democracy anyway. If your judges are appointed permanently by some sort of panel, drawn from some level of politicians, who are themselves elected via a system that is open to trivial interference by well-funded special interest groups, then your judiciary isn't even close to democratic.
  - iuytguyhj 16y ago
    The judges (in the UK) are appointed from senior lawyers by other judges who were themselves appointed by previous judges etc... It does mean that it takes a few generations to get many black or women judges - but it does reduce the level of corruption and means that a lot of politically motivated prosecutions get thrown out. It's not democratic - but neither is the process of selecting senior doctors from the ranks of junior doctors.
- kemayo 16y ago
  I don't want my court case being judged by someone who has to consider what that judgement means for their chances of re-election. If they have to campaign, well, that takes money... so they'll need donors... so can they really afford to rule against LocalBigCo?
  - bokonist 16y ago
    I'm not disagreeing with the argument of OP, just the language. Isn't your comment a general indictment of American democracy in general? Why have an elected congress making policies then?
    - Andrew_Quentin 16y ago

Silhouette 16y ago

Everything about a court case is a conditional. It is relatively unusual for the evidence to be so clear-cut that there is no doubt about the verdict, and often a court must make the fairest decision it can based on far less evidence than it might like. That said, this isn't really a hypothetical issue. Our courts function in this way every day. Please understand that to those of us on this side of the Atlantic, everything you are describing just sounds weird. "Judiciary corrupted by electioneering"? Judges responding "non-punitively"? Our judiciary in the UK has a long and honourable tradition of being the standard-bearers of justice that one would hope they would be, and of resisting politicisation far more effectively than the other major branches of government (to the extent that we have them; our system doesn't treat US-style separation of powers as sacrosanct either). Having been in a court on a couple of occasions, although never as a plaintiff or defendant, I have always been impressed by the way the officials conducted themselves. IMHO, our legal system does have its problems when it comes to handling relatively low-value cases, but those are more due to the time and effort required to figure out how the system works and complete all the paperwork than because the legal fees are prohibitive. One injustice I have personally witnessed happened when someone was cleared of a motoring offence, on the second hearing since the first was aborted when courtroom time ran out for that day. That person lost had two days of their life attending court, and presumably also spent considerable time planning their defence (as they were not legally represented). They must also have had the stress and uncertainty from waiting nearly a year to hear the verdict, and presumably lost out on some income that would have been earned on those days they were in court, because even though they were cleared of all charges, defendants do not even seem to get the same expense refunds that witnesses do. I find the fact that someone deemed not guilty in court should still be harmed even to that extent to be unfair. I simply do not understand how any system where someone innocent might wind up paying out hundreds or thousands in a settlement because the danger of having to pay for their own defence in court would be even more could possibly be in the interests of justice.