Lopez on the Law: Illegal Immigration: Economic, Social and Ethical ...

Lopez on the Law: Illegal Immigration: Economic, Social and Ethical ...: My article, Illegal Immigration: Economic, Social and Ethical Implications, published in Vol. 29 of the North East Journal of Legal S...

Lopez on the Law: Leading the World in the Wrong Direction: Is It Ti...

Lopez on the Law: Leading the World in the Wrong Direction: Is It Ti...: In nearly all countries around the world, the loser in a civil law suit has to reimburse either all or at least a significant part of the re...

Leading the World in the Wrong Direction: Is It Time for the United States to Adopt the World Standard "Loser Pays" Rule in Civil Litigation?

In nearly all countries around the world, the loser in a civil law suit has to reimburse either all or at least a significant part of the reasonable legal expenses of the prevailing party. This is commonly referred to as the "loser pays" rule and helps to discourage litigation--especially litigation of questionable merit as plaintiffs are less likely to sue if they know they will have to pay both their own legal fees and that of the winner if they do not prevail. The United states also conformed to this rule which we commonly refer to as the "British Rule" --  which is itself a misnomer since it is not only the rule in Great Britain but also in nearly all world jurisdictions. By contrast, the "American Rule"  requires each party to pay their own legal expenses whether they win or lose in court.

The genesis of the rule can be traced to the American Colonies and was directly related to allowing lawyers to raise their legal fees without fear that higher fees discouraging litigation by individuals who might fear having to pay not only their own (now higher) legal fees, but also those of the other party if they did not prevail in court. Today the debate is largely framed on "access to justice" arguments by scholars and practitioners who support the status quo.  The argument is that if the loser must pay the reasonable legal fees fees of the winner (in whole of in part), then persons of limited means may be discouraged from suing out of fear that they could not afford to lose in court.

Reasonable people may differ on whether the "American Rule" benefits society or merely lawyers who unquestionably are the intended and primary beneficiaries of a rule invented by them and for their benefit in pre-revolutionary colonial days. A good friend and colleague at Hofstra University's Frank G. Zarb School of Business, Eugene T. Maccarrone, and I co-authored a paper on the subject that should be required reading for all informed Americans on an issue that not only helps to maintain our dubious status as the most litigious nation on the face of the earth while inflating the cost of litigation and contributing to the backlog of cased in civil courts that require a delay of up to five years before a civil case ever gets to trial. The article was published in Vol 32 of the North East Journal of Legal Studies (NEJLS) pp. 1-20 (Fall of 2014). This double-blind, peer reviewed journal was previously available by subscription only to law schools and universities but, thanks to the efforts of its Editor in Chief, Dr. Sharlene A. McEvoy of Fairfield University, an electronic copy of the journal  is now also available free of charge in electronic PDF format at this link: http://nealsb.info/j2014.html.

I urge you to read the article in its entirety and to forward it to anyone who may be interested as the issue is unlikely to be aired publicly outside of academic circles--and not even there.

Unauthorized Practice of Law in the U.S.: A Survey and Brief Analysis of the Law

The practice of law in the United States is very different from that in every other country, especially countries that are not former colonies of Great Britain and therefore follow the world-standard civil law system rather than the common law system that has its roots in England. As a result, the U.S. does not have a unified system of law and the law changes from jurisdiction to jurisdiction from state to state and even from federal circuit to federal circuit in significant ways. As a result, the practice of law is much more complicated in the U.S. than in most other countries, including Great Britain and her other former colonies. We have more lawyers and more litigation per capita than just about anywhere else on earth not because of the cultural or psychological reasons sometimes attributed by commentators, but rather because our system is designed on an adversarial model where lawyers (and only lawyers) are allowed to provide legal advice and representation  on both complex and routine matters that are often handled by (much less expensive) non-lawyer paraprofessionals in most other parts of the world. Indeed, representing another person or even giving legal advice is a misdemeanor or felony in most every state that can result in criminal prosecution and jail time. For a full discussion of the issue you can read an article I published in the North East Journal of Legal Studies in Fall 2011 edition (pages 60-84). The journal has recently been digitized and is now available free of charge online as well as in its original bound edition. The automated digitizing process introduced some minor glitches but the article is quite legible and I am grateful that it is now available beyond law libraries to the general public. You can access the volume in question at the following link (click on my name or the article's name from the link that follows and the appropriate volume will be downloaded in PDF format): http://nealsb.info/j2011.html

Illegal Immigration: Economic, Social and Ethical Implications, published in Vol. 29 of the North East Journal of Legal Studies (Victor D. Lopez, NEJLS Vol 29, 45 (2009)

My article, Illegal Immigration: Economic, Social and Ethical Implications, published in Vol. 29 of the North East Journal of Legal Studies (NEJLS), can now be accessed in its entirety in digitized form as well as in the original printed journal courtesy of NEJLS. You can click on the link below and then on the article’s title to access the article free of charge.

http://nealsb.info/j2009.html