The book provides scholars, lawyers, and law students with a comparative overview of the law of c... more The book provides scholars, lawyers, and law students with a comparative overview of the law of civil liability for injuries arising outside of contract in five major legal systems in the common law and civil law traditions: England, the United States, France, Germany, and Italy. The book analyzes a number of foundational issues that lie at the core of tort law in all the jurisdictions surveyed, and takes them as points of comparison for appreciating commonalities and differences between the common law and the civil law traditions, as well as within each of these traditions. The analysis covers the structure and context of tort law architectures, the role of negligence and the continuum between fault and strict liability, rules on recovery for personal injuries, non-economic losses and for pure economic losses, tests and approaches to causation, medical, and products liability regimes. As such, the book offers an updated and enriched framework for understanding the rules, theories, ...
This is the first large-scale empirical study of consumer third-party litigation funding in the U... more This is the first large-scale empirical study of consumer third-party litigation funding in the United States. Despite being part of the American legal system for more than two decades there has been almost no real data-driven empirical study to date. We analyzed funding requests from American consumers in over 100,000 cases over a twelve year period. This proprietary data set was provided to us by one of the largest consumer litigation funder in the United States. Our results are striking and important. We find that the funder plays an important role in the American legal system by screening cases. Our funder rejected about half the applications, as well as was cautious about investing too much in a single case, thus preserving the incentives of the client and her lawyer to exert optimal effort. We find that the funder suffered losses in 12% of the cases primarily because of complete defaults. Even in the cases the funder made profit we find a surprising gap between the markup that...
THE INA UTHENTIC CLAIM claim is not the person who suffered the wrong for which the redress is so... more THE INA UTHENTIC CLAIM claim is not the person who suffered the wrong for which the redress is sought. This idea has its roots in the commonplace corrective justice insight that a wrong creates an obligation on the part of the wrongdoer to repair. 22 I believe, however, that it is a mistake to read into corrective justice an essential hostility to the free alienability of lawsuits. The theory of the inauthentic claim, and the putative corrective justice rationale behind it, has not been clearly identified before, although both the assignment of lawsuits and maintenance have been studied and debated by lawyers, judges, and scholars over the past two centuries. In this Article, I will argue that there is a theory of the inauthentic claim embedded into the common law, that it relies on a mistaken interpretation of corrective justice, and that if it is abandoned, there would be no a priori reason, rooted in either corrective justice or public policy, to oppose assignment or maintenance. B. An Example: MNC Credit Corp. v. Sickels The 1998 Virginia Supreme Court case MNC Credit Corp. v. Sickels involved the assignment of a legal malpractice claim. 23 Defendant attorneys drafted documents for their client, a subsidiary corporation, involving the return of a residential development cash bond posted by the subsidiary. The entire cash bond was not returned to the subsidiary, it seems, due to a mistake the lawyers made in drafting the documents. The subsidiary assigned all its interests, rights, and obligations to its parent. The parent corporation filed suit against the defendant law firm alleging that it committed legal malpractice in drafting the documents for the subsidiary. The Virginia Supreme Court held that under Virginia common law, legal malpractice claims and legal services contracts are not assignable. The Court based its decision, in part, on the need to preserve the unique relationship between lawyer and client, and this Article will not discuss that part of its decision. 24 The section of the decision 22. See infra Section IV.B. 23. MNC Credit Corp. v. Sickles, 497 S.E.2d 331, 332 (Va. 1998). 24. Id. at 333-34. I briefly address the argument that the assignment of tort suits between clients and their attorneys are especially dangerous below. See infra text accompanying note 29. This argument uses the attorney-cient relationship as a device to limit the client's rights after that relationship has been allegedly violated by the attorney. For this reason, many courts have rejected the position adopted by the Virginia Supreme Court. See infra note 103. 2011] 81. Rice v. Stone, 83 Mass. 566, 568 (1861) (citations omitted). 82. Id. at 571 ("[B]y our recent legislation actions for damage to the person survive; but we do not consider this as materially affecting the question whether such rights of action may be assigned to a stranger.').
This short article, which was prepared for a conference on civil recourse theory at Florida State... more This short article, which was prepared for a conference on civil recourse theory at Florida State University School of Law, asks whether Blackstone’s rejection of maintenance is inconsistent with the theoretical commitments of modern civil recourse theory. Blackstone strongly believed that third parties should not help victims of wrongdoing discover that they have been wronged, this article asks whether modern civil recourse theory is committed to the position (now in retreat throughout common law nations) that third parties who help strangers’ lawsuits are acting against the public interest (or, as Blackstone put it, are “pests of society . . . disturbing their neighbor’s repose”)
This essay explores two interrelated questions. First, what are the sources of the current legal ... more This essay explores two interrelated questions. First, what are the sources of the current legal culture in the United States and Europe, and second, what, anything, can be said about how European legal culture could change in the face of increasing conflict between citizens and the state over the definition and content of social rights? The essay begins by refining the concept of legal culture employed in the analysis. While accepting the conventional accounts offered by scholars like Lawrence M. Friedman, James L. Gibson and Gregory A. Caldeira, it adopts a more expansive definition which employs Erhard Blankenburg’s methodology, which gives equal weight to legal rules and institutions as to legal consciousness, that is, social attitudes towards the law. Next, the essay explores the ways in which the contrasting legal consciousnesses found in the United States and Europe have informed the public/private distinction in the two legal cultures. In particular, the chapter emphasizes the degree to which in the United States elite legal consciousness moved between the two opposing poles of instrumentalism and formalism, while in Europe legal culture has been dominated until quite recently by a dogmatic tradition that views law as independent of politics. The essay investigates the degree to which adversarial legalism is the legal culture of the United States and observes that adversarial legalism has produced more political gains in private rights such as tort and contract than in public rights, such as the right to welfare or healthcare. Conversely, as some such as Mark Osiel has observed, European legal culture has produced a sphere of private right in which law is seen as marginal to political contestation but where social rights have been successfully secured through politics, and not legal intervention. The essay concludes by considering whether, as conflict over social right become more intense in Europe (due to the contraction of the economic basis of the welfare state), European citizens will look to legal tools made available through the European Union to press their claims in law as opposed to politics. It further asks, whether, if this were to occur, that the turn to law would necessarily mean a change in legal culture and an increase in legal adversarialism in Europe.
... Sometimes the law's normative universe matches the judge's own picture of j... more ... Sometimes the law's normative universe matches the judge's own picture of justice; many times it ... Some members of the legal process school, after correctly identifying the role of rules in ... sequences of his legal reasoning have been held up as proof of legal positivism's inherent ...
502 DEPAUL LAW REVIEW [Vol. 53:501 . The Fund, which was created by the Air Transportation Safety... more 502 DEPAUL LAW REVIEW [Vol. 53:501 . The Fund, which was created by the Air Transportation Safety and System Stabilization Act (Stabilization Act), seems to promise that, in exchange for waiving the right to sue the airlines, any victim of the attack would receive from the US ...
380 DEPAUL LAW REVIEW [Vol. 55:379 approach is inconsistent with the traditions and mores of Euro... more 380 DEPAUL LAW REVIEW [Vol. 55:379 approach is inconsistent with the traditions and mores of European societies. These criticisms are, at their core, not too different (in form, if not in substance) from the European rejection of capital punish-ment. Furthermore, Europeans ...
DISTORTING THE LAW: POLITICS, MEDIA, AND THE LITIGATION CRISIS. By William Haltom & Michael McCan... more DISTORTING THE LAW: POLITICS, MEDIA, AND THE LITIGATION CRISIS. By William Haltom & Michael McCann. Chicago: University of Chicago Press, 2004. Pp. 347. $55.00. ... RISKS, REPUTATIONS, AND REWARDS: CONTINGENCY FEE LEGAL PRACTICE IN THE ...
ABSTRACT: In this Article, I argue that the current problem with punitive damages in the United S... more ABSTRACT: In this Article, I argue that the current problem with punitive damages in the United States is not, as popularly is believed, that they are out of control and threatening the orderly function of the tort system. Punitive damages suffer from a different sort of crisis-courts ...
Litigation investment, sometimes known as litigation finance, is increasingly accepted around the... more Litigation investment, sometimes known as litigation finance, is increasingly accepted around the world. Once prohibited as champerty, litigation investment is now embraced in England, Canada, and Australia, as well as in many civil law nations. In the United States, the development of a robust market for investment in litigation has been met by various objections. One objection is that litigation investment interferes with the autonomy of lawyers. A second objection is that it promotes frivolous litigation. This Article takes up a popular argument against litigation investment: the legal system should not encourage parties to sell their control over litigation that would vindicate their rights. This criticism is based on an unspoken assumption that private law theory requires party control to stay with the original rightholder and contracts that allow the sale of party control to a stranger should be struck down, either for being contrary to public policy or for some other legal basis.
The book provides scholars, lawyers, and law students with a comparative overview of the law of c... more The book provides scholars, lawyers, and law students with a comparative overview of the law of civil liability for injuries arising outside of contract in five major legal systems in the common law and civil law traditions: England, the United States, France, Germany, and Italy. The book analyzes a number of foundational issues that lie at the core of tort law in all the jurisdictions surveyed, and takes them as points of comparison for appreciating commonalities and differences between the common law and the civil law traditions, as well as within each of these traditions. The analysis covers the structure and context of tort law architectures, the role of negligence and the continuum between fault and strict liability, rules on recovery for personal injuries, non-economic losses and for pure economic losses, tests and approaches to causation, medical, and products liability regimes. As such, the book offers an updated and enriched framework for understanding the rules, theories, ...
This is the first large-scale empirical study of consumer third-party litigation funding in the U... more This is the first large-scale empirical study of consumer third-party litigation funding in the United States. Despite being part of the American legal system for more than two decades there has been almost no real data-driven empirical study to date. We analyzed funding requests from American consumers in over 100,000 cases over a twelve year period. This proprietary data set was provided to us by one of the largest consumer litigation funder in the United States. Our results are striking and important. We find that the funder plays an important role in the American legal system by screening cases. Our funder rejected about half the applications, as well as was cautious about investing too much in a single case, thus preserving the incentives of the client and her lawyer to exert optimal effort. We find that the funder suffered losses in 12% of the cases primarily because of complete defaults. Even in the cases the funder made profit we find a surprising gap between the markup that...
THE INA UTHENTIC CLAIM claim is not the person who suffered the wrong for which the redress is so... more THE INA UTHENTIC CLAIM claim is not the person who suffered the wrong for which the redress is sought. This idea has its roots in the commonplace corrective justice insight that a wrong creates an obligation on the part of the wrongdoer to repair. 22 I believe, however, that it is a mistake to read into corrective justice an essential hostility to the free alienability of lawsuits. The theory of the inauthentic claim, and the putative corrective justice rationale behind it, has not been clearly identified before, although both the assignment of lawsuits and maintenance have been studied and debated by lawyers, judges, and scholars over the past two centuries. In this Article, I will argue that there is a theory of the inauthentic claim embedded into the common law, that it relies on a mistaken interpretation of corrective justice, and that if it is abandoned, there would be no a priori reason, rooted in either corrective justice or public policy, to oppose assignment or maintenance. B. An Example: MNC Credit Corp. v. Sickels The 1998 Virginia Supreme Court case MNC Credit Corp. v. Sickels involved the assignment of a legal malpractice claim. 23 Defendant attorneys drafted documents for their client, a subsidiary corporation, involving the return of a residential development cash bond posted by the subsidiary. The entire cash bond was not returned to the subsidiary, it seems, due to a mistake the lawyers made in drafting the documents. The subsidiary assigned all its interests, rights, and obligations to its parent. The parent corporation filed suit against the defendant law firm alleging that it committed legal malpractice in drafting the documents for the subsidiary. The Virginia Supreme Court held that under Virginia common law, legal malpractice claims and legal services contracts are not assignable. The Court based its decision, in part, on the need to preserve the unique relationship between lawyer and client, and this Article will not discuss that part of its decision. 24 The section of the decision 22. See infra Section IV.B. 23. MNC Credit Corp. v. Sickles, 497 S.E.2d 331, 332 (Va. 1998). 24. Id. at 333-34. I briefly address the argument that the assignment of tort suits between clients and their attorneys are especially dangerous below. See infra text accompanying note 29. This argument uses the attorney-cient relationship as a device to limit the client's rights after that relationship has been allegedly violated by the attorney. For this reason, many courts have rejected the position adopted by the Virginia Supreme Court. See infra note 103. 2011] 81. Rice v. Stone, 83 Mass. 566, 568 (1861) (citations omitted). 82. Id. at 571 ("[B]y our recent legislation actions for damage to the person survive; but we do not consider this as materially affecting the question whether such rights of action may be assigned to a stranger.').
This short article, which was prepared for a conference on civil recourse theory at Florida State... more This short article, which was prepared for a conference on civil recourse theory at Florida State University School of Law, asks whether Blackstone’s rejection of maintenance is inconsistent with the theoretical commitments of modern civil recourse theory. Blackstone strongly believed that third parties should not help victims of wrongdoing discover that they have been wronged, this article asks whether modern civil recourse theory is committed to the position (now in retreat throughout common law nations) that third parties who help strangers’ lawsuits are acting against the public interest (or, as Blackstone put it, are “pests of society . . . disturbing their neighbor’s repose”)
This essay explores two interrelated questions. First, what are the sources of the current legal ... more This essay explores two interrelated questions. First, what are the sources of the current legal culture in the United States and Europe, and second, what, anything, can be said about how European legal culture could change in the face of increasing conflict between citizens and the state over the definition and content of social rights? The essay begins by refining the concept of legal culture employed in the analysis. While accepting the conventional accounts offered by scholars like Lawrence M. Friedman, James L. Gibson and Gregory A. Caldeira, it adopts a more expansive definition which employs Erhard Blankenburg’s methodology, which gives equal weight to legal rules and institutions as to legal consciousness, that is, social attitudes towards the law. Next, the essay explores the ways in which the contrasting legal consciousnesses found in the United States and Europe have informed the public/private distinction in the two legal cultures. In particular, the chapter emphasizes the degree to which in the United States elite legal consciousness moved between the two opposing poles of instrumentalism and formalism, while in Europe legal culture has been dominated until quite recently by a dogmatic tradition that views law as independent of politics. The essay investigates the degree to which adversarial legalism is the legal culture of the United States and observes that adversarial legalism has produced more political gains in private rights such as tort and contract than in public rights, such as the right to welfare or healthcare. Conversely, as some such as Mark Osiel has observed, European legal culture has produced a sphere of private right in which law is seen as marginal to political contestation but where social rights have been successfully secured through politics, and not legal intervention. The essay concludes by considering whether, as conflict over social right become more intense in Europe (due to the contraction of the economic basis of the welfare state), European citizens will look to legal tools made available through the European Union to press their claims in law as opposed to politics. It further asks, whether, if this were to occur, that the turn to law would necessarily mean a change in legal culture and an increase in legal adversarialism in Europe.
... Sometimes the law's normative universe matches the judge's own picture of j... more ... Sometimes the law's normative universe matches the judge's own picture of justice; many times it ... Some members of the legal process school, after correctly identifying the role of rules in ... sequences of his legal reasoning have been held up as proof of legal positivism's inherent ...
502 DEPAUL LAW REVIEW [Vol. 53:501 . The Fund, which was created by the Air Transportation Safety... more 502 DEPAUL LAW REVIEW [Vol. 53:501 . The Fund, which was created by the Air Transportation Safety and System Stabilization Act (Stabilization Act), seems to promise that, in exchange for waiving the right to sue the airlines, any victim of the attack would receive from the US ...
380 DEPAUL LAW REVIEW [Vol. 55:379 approach is inconsistent with the traditions and mores of Euro... more 380 DEPAUL LAW REVIEW [Vol. 55:379 approach is inconsistent with the traditions and mores of European societies. These criticisms are, at their core, not too different (in form, if not in substance) from the European rejection of capital punish-ment. Furthermore, Europeans ...
DISTORTING THE LAW: POLITICS, MEDIA, AND THE LITIGATION CRISIS. By William Haltom & Michael McCan... more DISTORTING THE LAW: POLITICS, MEDIA, AND THE LITIGATION CRISIS. By William Haltom & Michael McCann. Chicago: University of Chicago Press, 2004. Pp. 347. $55.00. ... RISKS, REPUTATIONS, AND REWARDS: CONTINGENCY FEE LEGAL PRACTICE IN THE ...
ABSTRACT: In this Article, I argue that the current problem with punitive damages in the United S... more ABSTRACT: In this Article, I argue that the current problem with punitive damages in the United States is not, as popularly is believed, that they are out of control and threatening the orderly function of the tort system. Punitive damages suffer from a different sort of crisis-courts ...
Litigation investment, sometimes known as litigation finance, is increasingly accepted around the... more Litigation investment, sometimes known as litigation finance, is increasingly accepted around the world. Once prohibited as champerty, litigation investment is now embraced in England, Canada, and Australia, as well as in many civil law nations. In the United States, the development of a robust market for investment in litigation has been met by various objections. One objection is that litigation investment interferes with the autonomy of lawyers. A second objection is that it promotes frivolous litigation. This Article takes up a popular argument against litigation investment: the legal system should not encourage parties to sell their control over litigation that would vindicate their rights. This criticism is based on an unspoken assumption that private law theory requires party control to stay with the original rightholder and contracts that allow the sale of party control to a stranger should be struck down, either for being contrary to public policy or for some other legal basis.
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