The Article argues that the proposed rule would enhance the bargaining position of parties who otherwise would be vulnerable in settlement negotiations. Vulnerable parties are apt to make offers of settlement favorable to the opposing party. The proposal would benefit these parties by rewarding attractive offers of settlement. Their opponents would have an incentive to settle for a reasonable amount, lest they fare poorly in court and owe an attorney's fee award. A third and final approach to the litigation process, civic republicanism, provides a third basis for the proposal.
Civic republicanism sees trial as an opportunity to engage the public at large in political debate.
From the civic republican perspective, the trials that would best serve the public involve controversies about values central to the polity. The Article argues that the cases that would be most likely to go to court under the proposed rule involve controversial value judgments. When there is a dispute over values, each party is likely to interpret the law in a way sympathetic to its cause. Under the proposal, such optimistic parties expect not only to prevail at trial but also to recover an attorney's fees award when they do, leading parties with competing optimistic views toward trial. This is an abstract of the article.