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Anthony Sebok on loser-pays

The Cardozo lawprof has some further thoughts (at FindLaw) on the August discussion of the subject at the NewTalk site. He laments the absence of a robust empirical demonstration of what proportion of current suits are lacking in what kind of merit:

...we really do not know what percentage of meritless lawsuits -- especially negative-value suits -- are brought by hard-core liars who know that they have no claim, and what percentage are brought by sincere lawyers and clients who need discovery and pretrial practice to find out whether the other side is really a wrongdoer.

Presumably everyone agrees that the suits by "hard-core liars" ought to be discouraged, but it does not follow that the second category of ill-based suits, distinguished by the edifying presence of "sincerity" or at least lack of patent insincerity, does not contribute its own full share to the social havoc wrought by litigation. If so, that destructiveness might warrant attaching a price tag to it higher than zero.

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Rafael Mangual
Project Manager,
Legal Policy

Katherine Lazarski
Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.