I have mixed feelings about a loser-pays system and have articulated the reasons why I believe that such a system can sometimes work undue hardships on average people who go to court to try to obtain redress (see http://news.ycombinator.com/item?id=1792353). While such a system would undoubtedly serve to deter certain forms of abusive litigation, I think its benefits would be outweighed by the detriments it might bring.
As to the chances of its ever being adopted in the U.S., I think these are basically nil. The U.S. departed from the UK on this issue dating back to the formation of the country and both judges and state legislatures (which now fashion these rules) are very committed to the current rules. Among other things, those rules are seen as helping plaintiffs (such as consumers and personal injury victims) and those who fashion such rules are not prone to disturb the existing system because of this. Moreover, in cases where legislatures do consciously want to tip the balance, they enact special statutes that allow for fee-shifting in favor of plaintiffs (e.g., in certain civil rights cases where a plaintiff can get a fee award as prevailing party even though traditional rules would require such a party to bear its own fees). With sentiments (and prejudices) being so heavily weighted toward plaintiffs in general, I don't see any movement whatever toward a loser-pays system even though this might help lessen frivolous litigation (I do believe that an occasional U.S. state has adopted such rules but this is a rare exception).
By the way, I don't see the Oracle case as frivolous. It is, in my view, grossly overstated in its damage claims but it may be that Android is infringing certain of the patents and that Oracle may be entitled to some damages. I say this even though I am not sympathetically aligned with Oracle's case and believe it was a mistake to bring it. As to the final outcome, only time will tell.
As always, thank you for your detailed comments. The question I was trying to get out was: Is there a way to help curb the frivolous lawsuits so prevalent in the US today? You mentioned special statutes to allow fee recovery in some cases. Do these rules actually help in the case of Joe Blow being sued by Megacorp?
For myself, I would almost certainly rollover at the first whiff of a lawsuit against me personally because I have neither the time nor money to fight it. BigCorp vs BigCorp is far less interesting to me than MegaCorp vs LittleGuy, because I certainly qualify as LittleGuy.
As to the chances of its ever being adopted in the U.S., I think these are basically nil. The U.S. departed from the UK on this issue dating back to the formation of the country and both judges and state legislatures (which now fashion these rules) are very committed to the current rules. Among other things, those rules are seen as helping plaintiffs (such as consumers and personal injury victims) and those who fashion such rules are not prone to disturb the existing system because of this. Moreover, in cases where legislatures do consciously want to tip the balance, they enact special statutes that allow for fee-shifting in favor of plaintiffs (e.g., in certain civil rights cases where a plaintiff can get a fee award as prevailing party even though traditional rules would require such a party to bear its own fees). With sentiments (and prejudices) being so heavily weighted toward plaintiffs in general, I don't see any movement whatever toward a loser-pays system even though this might help lessen frivolous litigation (I do believe that an occasional U.S. state has adopted such rules but this is a rare exception).
By the way, I don't see the Oracle case as frivolous. It is, in my view, grossly overstated in its damage claims but it may be that Android is infringing certain of the patents and that Oracle may be entitled to some damages. I say this even though I am not sympathetically aligned with Oracle's case and believe it was a mistake to bring it. As to the final outcome, only time will tell.