Monday, November 2, 2009
James R. Maxeiner (University of Baltimore School of Law) has posted "Cost and Fee Allocation in Civil Procedure: United States of America National Report," which will be published in the American Journal of Comparative Law.
This report summarizes critically the American practice of providing indemnity for court costs in litigation but not for attorneys' fees. It considers the basics, who pays, the rationals, exceptions,and modifications. It challenges the suggestion that the American no-indemnity practice reflects American values and debunks the assertion that it is used to promote access to justice. The report show that American jurists, just as their non-American counterparts, have pointed to a rational of full realization of rights to support complete indemnity. The reports notes the role of the bar in promoting no indemnity and the importance of viewing litigation as an event separate from the rights that it is to enforce.