CHAPTER 5A
Change is Needed
The adoption of "Loser pays" is desired by a vocal few.
• I DISAGREE - regression analysis indicated that the complexity level desired rises under the loser pays system, which raises lawyers fees, which causes reduced access to lawyers for a certain portion of the population. (White 1992)
Secondly, if you can collect from an opponent merely because he loses, you can punish the opponent more than you would if you had to pay for your own lawyer. There would be no reason for a litigant to offer to settle when he had the upper hand, or be allowed to settle when he had the losing hand.
And from Flanders, "Courts and Litigation Crisis: Where’s the Problem? Where’s the Solution" (1992) who believes that there are optimal circumstances from which to examine normative economic results.
• The qualitative aspects of a judges work are readily evaluated . . .highly public and published -
• I DISAGREE - they may be shoddy unpublished opinions, which give no incite into the thinking of the court, and may even miss the issues raised in the case.
• The appeal process provides not only a remedy for poor quality, but . . .public and embarrassing . . .
• I DISAGREE - they may be shoddy unpublished opinions, which give no publicity, and no public embarrassment (except via the world wide web).
• A judge whose pending number of cases is consistently low has confirmation that his case management efforts are relatively effective -
• I DISAGREE - he may be prone to skipping the basics of law, guessing at facts, granting dismissal summarily, seeking political favor, and writing to match boilerplate dismissal motions.
Return to the complete Economics of Law Article