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We have to decide these principles separately. Either we believe in a loser pay system, or we don't. And again, it's important to remember we're not funding them per se, we're paying out only if we lose. I don't like it any more than you, but again, my real problem is that we shouldn't be losing these cases.

Now one thing I'd like to know is, do we have to pay if the case is overturned on appeal? I'd like to make sure that if we're going to have a loser pay system that the attorney's fees are held in escrow until the case is fully resolved.

Wrong. If the government razes your house, takes your bank account, imprisons you, and then realizes its all a mistake and says, "Sorry" but refuses to make you whole again (and then some), are you telling me they shouldn't be responsible for your attorney's fees when you sue and win?

Let's not let our hatred of the ACLU (which is entirely justified) ruin our perspective here. The poster you responded to was 100% right; they shouldn't be winning these cases, but in the example above you should. If this law wasn't in place, you'd never be able to find an attorney to take your case, and you wouldn't win on your own.

The headline is terribly misleading. This statute is called a "fee-shifting" statute. It isn't public financing of anything, and there are other fee-shifting statutes to apply to other litigation. In this case, the government just happens to be the defendant, and the government just happens to be taxpayer financed. But that doesn't mean the fee shifts become public financing.