The overall point is that there will always be injustice, and loser pays can easily magnify it rather than reducing it. Even if you fix East Texas, there will be many others. I'm sure you can construct it such that there's a net gain, and maybe even a simple "loser always pays" system qualifies, but it's tough to figure out.
In theory, I like the idea that the winner's legal fees are just another item in play when the judge decides how to award damages. Maybe it's just a matter of calibrating that judicial sense properly. Or maybe that's just a cop-out on my part to push the thinking onto somebody else.
In theory, I like the idea that the winner's legal fees are just another item in play when the judge decides how to award damages.
In effect, this is exactly what happens in most loser-pays systems. Loser-pays usually doesn't mean literally that the winner automatically gets all of their fees paid, no matter how abusive their practices during the case or how disproportionate their expenses. More often it means that the judge can award those fees and there is some sort of presumption in favour of the winner of the case not losing out financially.
Then I guess either that's not what people mean when they say that the US should adopt a "loser pays" system, or they're unaware that the US already does this.
