DePaul University College of Law
Third-party funding indisputably puts a gold-weighted thumb on the scales of justice in favor of funded parties for two main reasons: (1) funded cases already tend to be calculable winners on the merits, and (2) third-party funders seeking a profit generally do not fund cases that are demonstrably likely to lose on the merits. Thus, we are left with both the promising potential for winners to be more likely to win with third-party funding and the alarming realization that not all winners are offered this same chance. This provokes a larger, fundamental question: If funders are picking winners among the winners, then what does real access to justice look like in an era of third-party funding? Would real access to justice need to involve third-party funders funding indigent or innocent defendants, expensive long-shot claimants, righteous injunctions with no monetary recovery, or unprofitable cases that espouse some worthy yet controversial position?
This Essay uses a thought experiment to identify areas of law and categories of parties where the promise of third-party funding may be falling short with respect to expanding access to civil justice. After outlining the thorny needles of this problem, this Essay presents a potential solution for funding longshot winners, expensive winners, defendant winners, non-financial winners, and political winners depending on the facts and circumstances of the disputes.
This Essay argues that if funders decide to fund only one additional category of parties in the name of increasing "access to justice"- even if such funding cuts against the funder's own profit-seeking interests then civil defendants are as good a place as any to begin. Civil defendants, by definition, do not commence the litigation and, therefore, in theory, there can be no corporate influence from the third-party funder with respect to stirring up the litigation itself (i.e., maintenance, champerty, and barratry). In addition, this Essay argues that other worthy aspects of the case itself-besides financial worth may be the true foundation of "access to justice" that funders should espouse and support financially. This Essay concludes with a few ideas regarding how a funder might modify its algorithms and decisionmaking processes to include some of these aspects as factors to weigh in determining whether to fund the myriad categories of "unfunded winners" to help rebalance the scales of justice.
Rethinking the Impact of Third-Party Funding on Access to Civil Justice
DePaul Law Review
Available at: https://scholarship.law.bu.edu/faculty_scholarship/3473