Ten years ago today I posted a short essay on what I still think is a great idea:
Let people risk their lawsuits, double or nothing. … You would write out a simple complaint, including who hurt you when and how, and then take this complaint to the official lawsuit randomizing office, who would then randomly declare it worthless (50% chance) or double it (50% chance). If your suit were doubled, and you took it to court and won, so that the court said your neighbor caused you $X in damages, they would really owe you twice $X. And if you gambled and lost your neighbor would get a record of this, to defend against your trying to sue again over the same complaint. More generally, you could keep doubling your suit … Double or nothing suits should create legal incentives for people to avoid hurting others by small amounts, as well as by large amounts. … Also, I’d let the person being sued also risk the suit, double or nothing, as long as they showed they were good for the maximum damage amount.
Ten years later, the main change I’d make is to require a maximum damage declaration, with perhaps a fee proportional to that max damage, and let the accused party put money into a pot which also gets doubled if the suit is doubled. So if someone claimed you hurt them by up to $50, you could deposit $50 and then if the suit doubled you’d have $100 ready to pay if needed. And since you’d have proven your ability to pay, you could double the suit if you liked.
I wouldn’t be surprised if someone else made a similar suggestion, but I haven’t seen any such, nor any interest in my suggestion. The few reactions I have heard have been surprisingly (to me) negative – people don’t seem to want law to discourage small harms. But if so, why do we want law to discourage large harms?