The Civil Justice Business

<div> Our civil justice system rests on foundational commitments: to make rights real for those the law protects, whatever their station; to hold wrongdoers accountable, whatever their power; and to deter misconduct in a system that depends heavily on private enforcement. We put great faith in these values. </div> <div> <br> </div> <div> Civil justice, for all its lofty goals, is also a business. Attorneys and liability insurers have long held economic stakes in litigation, bounded by their own professional and regulatory norms. Now, a new litigation finance industry has arisen: outside investors supply equity capital—divorced from legal representation and liability management—and take returns directly from claim proceeds.&nbsp; </div> <div> That institutionalizes the matter. Civil justice is a business, on both sides of the “v.” This development has occasioned fierce, often intractable, debate. Critics insist that funders will put profit over plaintiffs, take over litigation and settlement, and extract payouts for meritless claims. As a political matter, these concerns have become weapons in the familiar class-action wars. As a regulatory matter, they manifest as efforts to prevent civil justice from becoming a business—or at least <i>this</i> kind of business. What debates about the new litigation finance obscure is that it raises old questions characteristic of civil justice—about claimant control and autonomy; access to justice for meritorious claims and screens for meritless ones; and potential conflicts introduced into litigation by the agency of money.&nbsp; </div> <div> <br> </div> <div> Absent a framework addressed to these core problematics, judges and lawmakers have been left to grapple with this new entrant through ancient constructs, or through atomized rules and policies repurposed to channel inherited restrictions. Such approaches constrain them to essentialist binaries of permission and prohibition, hinder engagement with foundational civil justice concerns, and often frustrate the system’s core commitments. </div> <div> <br> </div> <div> This Article develops a theoretical framework for meeting litigation finance at the level of its core problematics, conceptualized along the critical relationships in funded litigation, and drawing on modern relational contract theory. Malleable to those relationships, it allows judges, lawmakers, and scholars to reach the foundational questions across the industry’s materially different market segments and the diverse institutional settings and dynamics of modern civil justice. This relational-institutional framework thus situates litigation finance within the traditional areas of scholarship in civil procedure, complex litigation, and private law. </div> <div> More broadly, this Article synthesizes and extends prior work toward a unified theory of civil justice as realized law: an account centered on the system’s capacity to give substantive rights real meaning—or to leave them without it. What emerges is an integrated account of litigation finance that charts the course for harnessing any civil justice innovation to effectuate the system’s core commitments—to do the <i>business</i> of civil justice.&nbsp; </div> <div> <br> </div>