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

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

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

Modeling the Likely Effects of Litigation Financing

The arguments for and against third-party litigation financing are based on incorrect assumptions regarding the impacts on total litigation. A formal model incorporating the choices of the plaintiff, the lawyer, and the financier shows only minimal impact on total litigation, largely positive. Yet, after addressing the potential for long-term, strategic behavior by financiers, it is obvious that some dangers remain. Divorced from the dramatic claims of proponents and opponents, litigation financing is merely a tool that can be used for good or bad, and differentiating by types of claims and the incentives of the parties allows that tool to be appropriately implemented

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

\\server05\productn\G\GHS\6-1\GHS107.txt unknown Seq: 1 3-JUN-08 11:53 Transgender and Transsexual Identities: The Next Strange Fruit-Hate Crimes, Violence and Genocide Against the Global Trans-Communities

ABSTRACT In this paper, we review the literature on global transgender hate crimes, violence, and abuse. We point out that it is possible to infer that this problem is not localized to the United States but rather, represents a global pandemic of focused prejudice. We point out that it can be viewed not only as an extremely serious and immediate public health problem, but also as genocide against a consistently invisibilized minority population. We provide concrete examples from the researchers' field studies as well as from the published literature