Document Type

Article

Publication Date

2025

Abstract

Third-party legal finance is one of the most controversial modern developments in civil justice, both in the United States and across the globe. It is particularly controversial when mentioned in the same breath as aggregate litigation. Current debate trains on a series of repeated questions: Whether and how to ban litigation finance in aggregate litigation; whether the use of litigation finance should be disclosed in discovery; and whether litigation finance is allowed under various (and often ancient) legal doctrines. Obscured from view is what I believe to be the most fundamental question: What is the proper role of litigation finance in the U.S. civil justice system, particularly for resolving aggregate disputes?

Addressing this foundational question requires nuanced and in-depth analysis of the intersection between this new legal finance industry and the dynamics of the United States aggregate litigation landscape. This work is needed now: Outcry against litigation finance, against aggregate litigation, and against the prospect of the two combined, has captured the attention of federal and state legislatures, judges, and rule-makers across the United States. With a few notable exceptions, though, input from complex litigation scholars has been scant. The nascency of the scholarship stands in stark contrast to the often fever- pitched calls for reform.

This Article steps into the breach. Its analysis integrates our developing understanding of the third- party litigation finance industry with well-developed knowledge about the U.S. aggregate litigation landscape. This Article’s analysis reveals that many of the questions often being debated may well be misdirected. This Article elucidates the “right” questions about third-party litigation finance in United States aggregate dispute resolution, which will help point scholars, lawmakers, and judges in the right direction.

Publication Citation

Theoretical Inquiries in Law, Forthcoming.

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