Samuel Issacharoff, the Bonnie and Richard Reiss Professor of Constitutional Law, joined leading legal practitioners, scholars, and legal reform advocates in an online forum on NewTalk.org focusing on whether a requirement that the losing side of a lawsuit pay the legal expenses of the winning side will help reduce the number of frivolous actions in American courts. The forum brought together 16 experts from around the country to explore the ramifications of a so-called "loser pays" system.
Issacharoff worries that a loser-pays rule will actually increase litigation expenses because each party will get all of the benefit of its own additional spending while a portion of that cost will be borne by the opposing party. He also found difficulty with cases worth little in terms of damages, but where liability is fairly certain. In such circumstances, he said, there is no internal cost constraint on what the plaintiff might spend.