Abstract

http://ssrn.com/abstract=1806042
 


 



The American ‘Rule’: Assuring the Lion His Share


James R. Maxeiner


University of Baltimore - School of Law

April 8, 2011

COST AND FEE ALLOCATION IN CIVIL PROCEDURE: A COMPARATIVE STUDY, Reimann, ed., Springer Publisher: Ius Gentium Series, 2011

Abstract:     
Court costs in American civil procedure are allocated to the loser (“loser pays”) as elsewhere in the world. When American civil procedure took shape in the 1840s, American lawyers thought that losing parties ought to indemnify winning parties against all expenses of lawsuits. Yet today, attorneys’ fees – the lion’s share of expenses in the words of the General Report – are not allocated this way. By practice – and not by legal rule – attorneys’ fees fall on the parties that incur them. Those fees are not set by statute or court decision, but by agreement between parties and their lawyers (“unregulated fee agreements”). This essay suggests that the reason this is so is that this practice suits lawyers.

Number of Pages in PDF File: 17

Keywords: American Rule, English Rule, Loser Pays, Legal Fees, Costs, Attorneys’ Fees, One-Way Fee Shifting, Contingent Fee, Legal Aid, In Forma Pauperis, Pro Se

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Date posted: April 11, 2011 ; Last revised: March 18, 2014

Suggested Citation

Maxeiner, James R., The American ‘Rule’: Assuring the Lion His Share (April 8, 2011). COST AND FEE ALLOCATION IN CIVIL PROCEDURE: A COMPARATIVE STUDY, Reimann, ed., Springer Publisher: Ius Gentium Series, 2011. Available at SSRN: http://ssrn.com/abstract=1806042

Contact Information

James R. Maxeiner (Contact Author)
University of Baltimore - School of Law ( email )
1420 N. Charles Street
Baltimore, MD 21218
United States
410-837-4628 (Phone)
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