Litigation finance: law suits turned into commodities

The transformations of the legal profession and their relationship to how the economy is itself transformed was already addressed by this blog (see here — in Portuguese, but with links to materials in English). Among the new practices incorporated into professional dealings of lawyers (perhaps more likely to happen in global law firms) is the treatment of law suits as commodities. Recent information on this relatively new trend, called “litigation finance”, is provided by the NYT (see here). As reported by the paper, in one instance, “an infusion of $ 6 million” helped a law firm to collect a $110 million award – quite a handsome profit must have been made by investors.

But would litigation finance imply turning “rights” themselves into commodities? Could one speak of a global process of gradual “commodification” of rights? The fact that organizations such as the World Bank treat certain rights as (commercially provided) “services” is an indication that the whole matter extrapolates from the narrower concerns that may underlie the more common criticisms addressed to litigation finance.

The crux of the matter is that some rights do not seem to be amenable to untrammeled bargaining. This means that it seems difficult to treat many rights, in all circumstances, as “negotiable” or tradable (as is assumed by many who adopt the Coasean view of the relationship between law and economies). Not everything in life can or should be treated as commodities (see, e.g., discussion here). Everyone (individual and/or group) cherishes some goods beyond any “exchange value” that may be attributed to them by market analysts. It is even arguable that in most societies there are some issues — say, policies designed to boost development — of “strategic value” that should by all means be negotiated in political settings. Decision on such issues (and “rights” implied in them) should be reached through institutionalized political procedures, not through elusive systems of price signals, which in many markets are quite opaque and subject to many irrational – albeit in certain contexts exuberant – influences. As put by a partner at Skadden, Arps (reported by the NYT in the link above), the legal system should not be turned into a stock market.

The whole issue offers a range of new topics that law schools around the world, especially in countries like Brazil, India, South Africa etc., should give more attention to.


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