Last week, I traveled to Nashville, TN, to try to advise Tennessee state legislators to stick to 200 years of state jurisprudence and the American rule in civil lawsuits, and not institute a "Loser Pays" system in courtrooms. As I've explained here before, "Loser Pays" means that middle- and lower-income individuals, and small businesses with low long-term capital reserves, would have to risk their meager savings when filing a civil suit. One attorney there analogized such bills to the New England Patriots' being forced to pay the New York Giants' expenses for the Super Bowl after losing the game!
I'm also concerned that social conservative litigators, such as the ACLJ, Becket Fund for Religious Liberty, Liberty Counsel, Thomas More Law Center and the Alliance Defense Fund, could be severely impacted by state "Loser Pays" statutes. One proposed bill in Tennessee would institute a rule under which the side that loses three straight rulings in a given case automatically pays the other sides' expenses. Does that mean, for instance, that the Alliance Defense Fund has to pay the attorneys' fees if the Tennessee state judiciary rules against it all the way through the state Supreme Court in a religious liberty case? I know that the senator proposing the bill hasn't contacted any of the groups named above. That bill could be extremely costly, and many social conservative litigators could face severe disincentives to filing a suit to protect our basic freedoms.
"Loser Pays" is a big trend sweeping through statehouses across America. Attorney Brett Emison wrote recently of his effort to persuade the Missouri state legislature to not institute "Loser Pays" there. I urge my readers to read his post about the dangers of "Loser Pays" and the long history of the American rule. The Founders had good reasons to insist otherwise.
I discuss this issue on today's What's Up radio program, hosted by Terry Lowry and broadcast nationally on Sirius Channel 131 and also on 12 radio stations from Texas to Pennsylvania. You can download and listen to Segment 1 here and to Segment 2 here.