Probate Funding and the Litigation Funding Debate

Third-party funding of legal claims is becoming more common, and increasingly more controversial. Whether in the legislative arena or in the courts, the fight over whether and how independent parties might provide funding to litigants has become heated. The fight now threatens to spill over into the probate realm, where funders have begun purchasing probate rights from putative heirs. These probate funding transactions share many characteristics with broader litigation funding but also differ in important respects. The meager existing literature tends to address the issue in a pre-biased and methodologically unsound way, making it impossible to properly assess the nature of probate funding. This Article approaches probate funding in a neutral fashion, analyzing the characteristics of the transaction in order to gain greater insights into not only probate funding but also litigation funding, as well as illuminating the options for lawmakers in deciding how the law should react to the continuing evolution of legal funding generally

Quacks or Bootleggers: Who’s Really Regulating Hedge Funds?

Influential scholars of corporate law have questioned previous federal interventions into corporate governance, calling it quackery. Invoking images of medical malpractice, these critiques have argued persuasively that Congress, in responding to crises, makes policy that disrupts efficient private rules and established state laws. This Article applies the Bootleggers and Baptists theory to show that Dodd–Frank’s hedge fund rules are more than just negligent or reckless, but designed to benefit special interests that compete with the hedge fund model. Those rules offer no solutions to any real or perceived risks arising from hedge fund investing, but might offer an advantage to competitors of hedge funds

Who’s Afraid of Uber?

Ride-sharing has disrupted the transportation-for-hire industry, breaking down barriers to entry that have protected entrenched incumbents for decades. The disruption has led to calls for increased regulation, along with criticisms about the effect of innovation on consumer safety, market stability, rule of law, and other areas. That disruption, however, has also led to tremendous benefits to consumers as they are freed from a regulatory regime that limited their transportation choices and forced them to pay higher prices for lower quality service. The same type of disruptive innovation is upon us in almost every area of our economy. How we deal with it will determine whether the law will finally free consumers from the grasp of entrenched and privileged incumbents or whether the combined forces of those incumbents and their erstwhile allies in academia will lead to a regulatory retrenchment. The Article concludes that opposition to innovation rests on a Galbraithian foundation that holds a dim view of human nature. Greater reliance on Smithian assumptions would serve us better as we decide how to deal with innovation and its disruption. The Article also concludes that innovation is inevitable; if the law seeks to inhibit it, it merely guarantees a greater disruption when it finally arrives

Clarifying the “Probate Lending” Debate: A Response to Professors Horton and Chandrasekher

The debate over third-party funding of legal claims just got more interesting. The debate already had plot twists, such as free-market scholars lining up in opposition to the U.S. Chamber of Commerce and alongside proplaintiff scholars who they oppose in tort reform debates. Now add to the mix a recent paper by Professors Horton and Chandrasekher that introduced an entirely new angle to the debate: funding of probate disputes. Now that this parallel area of funding has been identified, comparing and contrasting probate funding with litigation funding should illuminate the incentives that funders/recipients face in both scenarios. By pointing out the importance of probate funding, Professors Horton and Chandrasekher have benefitted the debate. And yet, their contribution does not make the impact that it should have made, due to some unfortunate and avoidable missteps. This Essay identifies the authors’ mistakes so that the debate can proceed in more fruitful fashion. Part I addresses how Probate Lending gives short shrift to the difficult questions involved in discerning whether probate funding is a loan. Part II points out how the authors mistakenly conclude that they have measured ex ante risk instead of ex post results. Part III argues that the authors presume too much when they derive broad policy conclusions from an extremely narrow empirical study and when they ignore alternative explanations that are at least as plausible as those they champion. This Essay then concludes

Probing the Mechanics of Environmental Kuznets Curve Theory

The theory of the Environmental Kuznets Curve (EKC) proposes to answer important questions regarding the connections between economic growth (development) and the environment. The theory postulates the environment need not always suffer as the economy develops, and it has generated strong support and opposition. Rather than attempting to defend or debunk EKC theory, this research challenges a practice engaged in by proponents and opponents alike. Simplifying assumptions are a necessary part of economic analysis, but this research shows that any assumptions may not be universally applicable. Utilizing, in turn, a simple one good model and then a more complicated two good model, it is discovered that the competing assumptions utilized by proponents and opponents of the EKC theory may both be valid, depending upon the conditions present in the system being analyzed

Fintech: Antidote to Rent-Seeking?

Innovations in financial technology, or Fintech, has been ongoing for decades but has recently begun to accelerate. Some observers have argued that it will soon begin to outstrip the ability of regulators to keep pace. If those predictions are accurate, what would the world look like with a financial sector that cannot be effectively regulated? One possibility—drawn from public choice economics—is that rent-seeking will be inhibited or eliminated. Rent-seeking is the distortion of law and regulation for the benefit of special interests, who expend resources to guarantee those distortions in their favor. Rent-seeking is inefficient and inhibits growth and innovation, yet it continues so long as the government has the power to intervene and play favorites in markets. As innovation accelerates, the power of regulators to effectively interfere will be significantly reduced, making rent-seeking an unprofitable venture and advancing the cause of markets and consumers

Saving Class Members from Counsel

The U.S. class action regime is supposed to obtain justice for victims and hold wrongdoers accountable. Instead, the system is filled with pathologies that combine to harm class members and allow defendants to minimize their responsibility. Victims are deprived of their property and due process rights. Adding insult to injury, the modern movement towards cy pres settlements also deprives victims of their free speech rights. Cy pres was borrowed from the law of trusts, but its use in class actions is unjustified. It is leading to greater corruption and collusion, opening the door to significant rent seeking. Most reform proposals will not help, but two—adopting an opt-in regime and using a corporate form—hold significant promise

A scoping review of alcohol, tobacco, and other drug use treatment interventions for sexual and gender minority populations

BackgroundAlcohol, tobacco, and other drug use are among the most prevalent and important health disparities affecting sexual and gender minority (SGM; e.g., lesbian, gay, bisexual, transgender) populations. Although numerous government agencies and health experts have called for substance use intervention studies to address these disparities, such studies continue to be relatively rare. MethodWe conducted a scoping review of prevention and drug treatment intervention studies for alcohol, tobacco, and other drug use that were conducted with SGM adults. We searched three databases to identify pertinent English-language, peer-reviewed articles published between 1985 and 2019. ResultsOur search yielded 71 articles. The majority focused on sexual minority men and studied individual or group psychotherapies for alcohol, tobacco, or methamphetamine use. ConclusionOur findings highlight the need for intervention research focused on sexual minority women and gender minority individuals and on cannabis and opioid use. There is also a need for more research that evaluates dyadic, population-level, and medication interventions