Document Type
Article
Publication Date
4-2026
ISSN
0010-8847
Publisher
Cornell Law School
Language
en-US
Abstract
The main debate surrounding litigation funding in recent years has focused on the question of disclosure of funding agreements. While the issue is important, predominantly because of its effects on the course and outcome of individual cases, far more important are bigger, interrelated questions that have systemic effects on the civil justice system, the legal profession, and the nature of the attorney-client relationship. The rise of litigation funding has had profound effects. The subsequent rise of portfolio funding—which I here propose to view as a new form of undisclosed and unregulated claim aggregation—has broader-still effects including clients’ potential, and at times actual, loss of autonomy over their cases as their lawyers become originators, brokers, and/or managers of “litigation assets.”
First, I identify and explain a new possible scenario, which I call “zombie litigation”: litigation that a plaintiff no longer wishes to pursue or, in some cases, does not wish to initiate but that nonetheless proceeds through the court system for the benefit of a funder that has control over the plaintiff’s case. Second, I explain how funders’ incentives to demand zombie litigation are increased by the financialization of litigation: the concomitant rise of portfolio funding and secondary trading in legal claims. Third, I identify and explain the numerous doctrines, rules of evidence, of procedure, and of professional responsibility that recognize and at times presuppose as axiomatic, the sanctity and centrality of a plaintiff’s autonomy over their cases. Fourth, I map the harms said rules and doctrines seek to guard against and that would be unleashed if funder control over settlement decisions was normalized. These harms span unfairness at the level of individual cases, damage to the civil justice system as a public institution serving the public good, and erosion of the attorney-client relationship. The affected constituencies are plaintiffs, defendants, courts, and the public. Fifth, I also identify and systematize an emerging framework of addressing the risk of zombie litigation, and plaintiffs’ loss of autonomy more generally, through managerial judging.
Recommended Citation
Maya Steinitz,
Zombie Litigation: Claim Aggregation, Litigant Autonomy and Funders' Intermeddling
,
110
Cornell Law Review
1771
(2026).
Available at:
https://scholarship.law.bu.edu/faculty_scholarship/3993
Comments
Updated with published article on 9/22/2026
Draft available as additional file download