Document Type

Article

Publication Date

2026

Abstract

Civil justice is a lofty set of ideals. Access to justice, no matter a party’s sophistication. Holding wrongdoers accountable, no matter their power. Achieving regulation of wrongdoing across the wide swath of substantive laws in an American “litigation state.”

Civil justice is also a business—now on both sides of the “v.” A new litigation finance industry has arisen: Institutional investors provide claimants with capital, in exchange for eventual profit. This industry approaches civil justice as a market, claims as assets, and case outcomes as returns on investment. And when civil justice looks like a business, it raises a host of concerns.

Current attempts to regulate this new civil justice actor—oriented formally or functionally around the prohibitions of ancient constructs and atomized civil justice rules and doctrines—largely aim towards preventing civil justice from becoming a business. These approaches constrain judges and lawmakers to a binary set of regulatory choices, deny the complex realities of modern civil justice, and hinder engagement with foundational civil justice concerns.

This Article develops a comprehensive framework for engaging with the civil justice business at the level of its core problematics. It conceptualizes and constructs along the lines of a series of critical relationships involved in claimant-funded litigation, drawing from modern strains of contract theory along relational lines. Applied to the three most heated debates in litigation finance—disclosure, claim control, and mass-dispute funding—the framework generates targeted regulatory pathways for judges, legislators, and scholars that depart markedly from dominant proposals. More broadly, the analysis here synthesizes and extends prior work toward a unified theory of civil justice as realized law. This account centers on the civil justice system’s capacity to live up to its foundational ideal; to give substantive legal rights real meaning—or to leave them without it. Evaluated against this account, litigation finance—when constrained and clarified by this Article’s relational framework—can be harnessed to further those commitments. Importantly, situating litigation finance alongside and within these core civil justice commitments charts a course for harnessing all civil justice innovations, not just the “civil justice business” in focus here, to effectuate the business of civil justice.

Publication Citation

101 N.Y.U. L. Rev. (forthcoming 2026)

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