That's a whole lot of conditionals. In places where the judiciary is thoroughly corrupted by electioneering (coal interests in West Virginia, for instance), relying on judges to respond non-punitively can be an unsafe assumption already. A libertarian loser-pays movement only slants that further.

That said, this isn't really a hypothetical issue. Our courts function in this way every day. Please understand that to those of us on this side of the Atlantic, everything you are describing just sounds weird. "Judiciary corrupted by electioneering"? Judges responding "non-punitively"? Our judiciary in the UK has a long and honourable tradition of being the standard-bearers of justice that one would hope they would be, and of resisting politicisation far more effectively than the other major branches of government (to the extent that we have them; our system doesn't treat US-style separation of powers as sacrosanct either).

Having been in a court on a couple of occasions, although never as a plaintiff or defendant, I have always been impressed by the way the officials conducted themselves. IMHO, our legal system does have its problems when it comes to handling relatively low-value cases, but those are more due to the time and effort required to figure out how the system works and complete all the paperwork than because the legal fees are prohibitive.

One injustice I have personally witnessed happened when someone was cleared of a motoring offence, on the second hearing since the first was aborted when courtroom time ran out for that day. That person lost had two days of their life attending court, and presumably also spent considerable time planning their defence (as they were not legally represented). They must also have had the stress and uncertainty from waiting nearly a year to hear the verdict, and presumably lost out on some income that would have been earned on those days they were in court, because even though they were cleared of all charges, defendants do not even seem to get the same expense refunds that witnesses do. I find the fact that someone deemed not guilty in court should still be harmed even to that extent to be unfair. I simply do not understand how any system where someone innocent might wind up paying out hundreds or thousands in a settlement because the danger of having to pay for their own defence in court would be even more could possibly be in the interests of justice.

As far as I know, in the UK and most of Europe, and definitely here in Canada, Judges are appointed by judicial commissions on the basis of strength of legal scholarship, not picked in a popular election based on who can raise the most money and pander to the right interest groups.

See also Matt Yglesias: http://yglesias.thinkprogress.org/2008/12/loser_pays/

The legal system should normally be the last resort, but you seem to be suggesting that we have some sort of universal alternative to try first. There may be other options in specific contexts, for example disputes with service providers in regulated industries where there is some sort of ombudsman scheme, but it is not the case in general.

You mean de-democratize the entire branch of government?

Isn't your comment a general indictment of American democracy in general? Why have an elected congress making policies then?

I would suggest however that in theory, the politicians sell their policies, rather than themselves per se, although they do sell a bit of themselves also. But the way our system works is, you have a philosophy of governance which is conservative, low taxes, traditional values, screw the poor, and the democrats, sort of distribute wealth, keep the companies in check, tax the rich higher, etc. Any one politician in this scheme is not an individual, but rather a representative of a philosophy, or even ideology. So, it is right that the public decides which they prefer at any given time.

However, it would be quite savagery for the public to decide as to who should be guilty of murder, or rape, or conspiracy, or robbery, or the thousands of cases that go through the court. It too would be idiotic for the lay public, with very limited knowledge of the law, to decide as to who should be a judge, a job which requires high intelligence, but also common sense, a sort of moral structure, so taught through law school. Same as it would be idiotic for the public to decide who should be a doctor.

If your judges are appointed permanently by some sort of panel, drawn from some level of politicians, who are themselves elected via a system that is open to trivial interference by well-funded special interest groups, then your judiciary isn't even close to democratic.

It's not democratic - but neither is the process of selecting senior doctors from the ranks of junior doctors.

Thanks, I didn't know this. I'm still not convinced that the threat of legal fees wouldn't convince a non-insignificant fraction of poor plaintiffs not to sue.

> I guess you're referring to so-called "no win, no fee" agreements? If so, it's not quite as simple as that (the lawyers also stand to gain more if they win than they would in a regular case)...

I know. In effect, the lawyer is selling insurance to the client. The client will get less in case of a win both because (a) he bought insurance, which brings his variance down (and so, his total payout in case of a win is lower) and (b) the lawyer collects a premium for absorbing the risk.