The Evolution of Unbundling in Litigation Matters: Three Case Studies and a Literature Review

Abstract

Perhaps the most famous “bundle ” in United States law is the meta-phor used to conceptualize property rights. Law students learn that one way to understand property is as a bundle of rights: the right to possess, the right to exclude, the right to sell, the right to destroy, the right to de-vise, etc. 1 One reason to conceptualize anything in terms of a bundle is to consider what happens if someone or something—the state, a third par-ty—unties the binding or pulls out one of the sticks. In property, this thought exercise helps students understand many of the doctrines taught in the canonical first year course, including easements, adverse posses-sion, and the rule against perpetuities. Forrest “Woody ” Mosten, whom some called the “Father of Un-bundling ” in the practice of law,2 no doubt had all this in mind when, in the 1990s, he began traveling the nation with a bundle of popsicle sticks tied together with a ribbon. To each stick, Mosten attached a label that represented some aspect of legal practice, such as researching the law or negotiating with opposing parties. 3 During his presentation, Mosten would untie the ribbon and wave around the now-separated popsicle sticks to emphasize his point that unbundling in the practice of law was possible and desirable. 4 Mosten’s road show comprised part of a trend towards the recognition, legitimization, and promotion of limited legal assistance 5 in litigation matters. The trend began in California 6 and since has spread to almost every state in the nation, 7 with most of the actio

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