Sam the Centipede wrote:
Mikedunford wrote:Too, also, American courts are much more sensitive to issues of access to justice than is true in much of the world. We've developed many procedures that are designed to ensure that less-well-off plaintiffs can get their day at work. For example, the "American Rule" - absent a statutory exception or sanctions award, each side pays its own legal fees - is intended to allow someone with few resources to file a case without having to worry that they will be left impoverished (or more impoverished, anyway) if they lose the case and suddenly become liable for the defendant's fees. That rule is entirely alien in European practice.
I've heard a number of judges speak at length about their view of their role, and access to justice has come up every time. (Even Scalia, in response to a question about access to justice, talked about the benefits of the American Rule.) I think many judges are reluctant to award sanctions, particularly against plaintiffs, because they are concerned about the potential chilling effects on other litigation. I suspect that it's viewed as something along the lines of a nuclear option - a major deterrent that should be used rarely, if ever.
It seems to be an article of faith in any country's legal system that its lawyers must believe that it has The Best System or The Fairest System!
I can't speak to that - the mandatory parts of my legal education in the USA were exclusively focused on American law, and simply made no mention of other systems, and my electives were heavily focused on international/transnational law. But I can say that I'm coming to the end of a postgraduate degree in comparative and international dispute resolution. And I entered fully prepared to discover that the US legal system has major flaws in comparison with the other major systems. (In fact, given that I think most European politics are quite rational compared with the USA, I was expecting to learn that our judiciary was every bit as screwed up as the political branches of our government.) Overall, I was pleasantly surprised by how well the US system compares with the European systems.
The concept of what you called "access to justice" (I think you meant access to courts
) is obviously attractive to a profession that makes its dime that way
, but the public policy in European countries (generalizing wildly!) is that courts are best avoided as a clumsy, slow, expensive and often unsatisfactory means of resolving disputes. For example, Norway puts significant obstacles in a potential plaintiff's path to ensure that out-of-court procedures have been followed before a judge gets involved; I think that several other countries have similar rules.
I've seen that. And, while I have not looked in detail at more than a couple of the civil law systems, I think that there is a fair bit of truth behind that belief - as applied to civil law jurisdictions. (See, e.g.
, Torpedo, the Italian.) That's not, of course, the result of the civil law jurisdictions setting out to create slow and expensive systems. Rather, it's the result of the civil law assigning a high priority to certainty, at the expense of flexibility and efficiency. The common law system generally takes the opposite approach - proceedings are quicker and the judge typically has more discretion to adjust proceedings to accommodate the specific circumstances of individual litigants, but this does lead to less certainty.
I will not express any opinion on whether one approach is better than the other. I will note, however, that New York and London have long been the courts of choice for commercial disputes, and are frequently specified in the choice of court clauses found in major international contracts; Paris and Frankfurt have not.
And, you will be aware that Americans have a reputation in Europe for starting ridiculous law suits demanding huge damages for imagined or silly offenses, which will often pop up as "well, fancy that!" filler items in popular newspapers. Of course, those frivolous cases can clog up courts, which means credible cases must wait longer for adjudication.
I am aware that this is the reputation. I am also aware that this reputation is, to say the least, a gross overgeneralization. (This is something that most of the European lawyers in my conflict of laws class were very startled to learn, by the way - but which was taught to them by our European professor.)
To me, a non-law-talking-guy, the principle that a winning defendant should not be in a worse position than if s/he had not been subjected to the misguided attentions of the plaintiff seems very reasonable, even though the US lawyers' establishment view is that the rest of the world has gotten it wrong! As I said, any law school's first course in any country seems to be"Why Our System Is Best"!
It is reasonable on its face. It becomes less reasonable when other elements of the American system are factored in, such as insurance and contingency fees for lawyers.
The hi-falutin' idea of access to justice for all rich people (cuz the poor can't afford attorneys) loses its pretty philosophical shine when it turns into a right for Klayman and other turds to use courts as a weapon of harassment, and, more generally, when defendants choose to settle non-meritorious claims because the costs of lawyering up and the disruption to their businesses or lives mean that the rational decision is to give in to the bullies. Neither of those is justice.
The fact that Scalia supported the principle does not make it more attractive to me!
Contingency fees - which is another area that gives some European attorneys fits - is one of the means of addressing the "justice for all" issue. (It's also a factor in the comparatively large awards in American litigation.) On the defense side, insurance provides a means of addressing some of the costs.
A system or principle that promotes and protects Klayman's vile activities is a long way off perfection.
No system is perfect, and no system is without costs. I'd prefer to see Klayman get shut down, and shut down hard (and I think that's possible - he's almost continually playing with fire), but if a GIL or two is the cost of a system that makes it a little bit easier for a poor person to find a lawyer to take a risky case, I don't think it's too high a price.