Science And Law Team Up On Legal Reform Proposal

In the American judicial system, plaintiffs and defendants almost always pay their own expenses, no matter which side wins the case. By contrast, most other countries operate under a variant of the "British rule," where the losing party pays the legal fees of the winning party.

"This 'cost-shifting' is a major factor in reducing the per capita litigation costs in Europe compared with the United States," says Ephraim Fischbach, professor of physics at Purdue. "But both systems have major drawbacks. While the American system does little to curb frivolous lawsuits, the British system works at a disadvantage to parties with fewer resources."

Fischbach and William McLauchlan, associate professor of political science, have come up with a new approach called reverse cost-shifting. The basic idea is that the losing party in a civil case pays the court a fine that is a multiple of its own expenses.

"The novel feature of reverse cost-shifting is that although it imposes a financial penalty on the losing party, the amount of the penalty is completely under control of the losing party," Fischbach says. "If you've got a frivolous case with little chance of winning, you'll think twice about initiating that case if you know you'll have to pay a penalty."

Fischbach and McLauchlan's proposal appears in the fall issue of the John Marshall Law Review, Vol. 32, issue No. 1.

Fischbach relied on mathematical equations and probability -- tools he normally reserves for his physics research -- to show the benefits of the reverse cost-shifting plan. For example, the proposal assumes that the probability of winning a case depends on the amount of money you spend.

While the court of opinion is still out on the idea, Fischbach and McLauchlan have gotten some positive feedback from judges, attorneys and the U.S. Senate Commerce Committee.

McLauchlan says: "This system effectively tilts the legal playing field in favor of the party with the more meritorious case, regardless of whether that party is big or small, plaintiff or defendant. Also, because the penalty is paid directly to the court, parties who actually use the court system would be paying for it, reducing the tax burden on the general public."