The Henry G. Manne Program in Law & Economics Studies, a division of the Law & Economics Center at George Mason University Antonin Scalia Law School, invites applications for the Third Party Litigation Financing (TPLF) Research Roundtable – one of many programs being offered this year during the LEC’s 50^th Anniversary!

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The Manne Program at the Law & Economics Center is issuing a call for papers that would produce insightful analysis exploring the economics of third party litigation financing (TPLF) and its effects on the civil justice system. Only paper proposals are due with your present application. The deadlines for draft papers for accepted proposals are outlined below.

Total honorarium payments of $12,000 per scholarly article (12,000-25,000 words) or $7,000 per scholarly essay (6,500-11,000 words) will be available to those who fulfill all the obligations of the program, which are described in detail below.

Qualifying papers will critically examine the state of play in the modern market for TPLF and its impacts on the civil justice system.

Third Party Litigation Funding (TPLF) is an increasingly used mechanism for financing lawsuits that is similarly coming under increasing scrutiny. With TPLF, third party litigation financiers “invest” in lawsuits with an expected return on their investment by getting a cut of any judgment award or settlement received by their funded plaintiff. Sophisticated funders develop diverse portfolios of litigation so that they can assess and spread risk based on the probabilities of winning or achieving favorable settlements.

Some argue that this mechanism gives aggrieved parties access to court that they would otherwise lack because they would not have funds to bring litigation to recover for their losses against responsible defendants. Some worry that it leads to a flood of litigation that should never be brought in the first place and may skew normal incentives to settle because of funder control. A serious debate is occurring between commentators, in state legislatures and Congress, and in the courts over whether there should be requirements to disclose the existence and source of third party financing in particular cases. In most state and federal courts, disclosure is not yet required, clouding the ability to assess potential conflicts of interest and meaning courts are not operating on full information when deciding things like proportionality in discovery which is often based on a determination of the resources available to the parties.  Because these and other issues are presently under-explored in the literature, the LEC is supporting additional research in the field.

A non-exhaustive list of potential questions or topics that papers might pursue includes:

• What is the nature of the TPLF market, how has it changed, and what troubles, if any, can it create for the effective operating of the civil justice system? What benefits, if any, might it bring and how do these balance against the negative effects, if any?
• How, if at all, does the rise in frequency and scope of TPLF raise concerns?
• Is there a market-oriented defense of TPLF from an economics perspective? Is there a reason market-oriented defenses do not work for TPLF, i.e. are there unintended consequences from turning courts into fields of investment with cases as investment vehicles?
• Who are the key players in TPLF and how are their business models structured? What incentives are at play and do those incentives align with the purposes of maintaining a civil justice system?
• How has TPLF changed litigation advertising and claims generating? How have those changes then changed the dockets and filing of cases? In what other ways do litigation funders try to increase the number of potential investment vehicles?
• How does the existence of portfolio funding and the diversification and risk-spreading that comes with it change the case filing and settlement dynamic?
• Does litigation funding change settlement dynamics because funders will want to press on beyond what the parties without them might have agreed was a good settlement point? In other words, are efficiencies of settlement disrupted by TPLF?
• Is the “access to justice” narrative used by many TPLF defenders an accurate one, or is it a mask for a distinct set of motivations in the modern TPLF market?
• How, if at all, can lawyers manage their ethical responsibilities and fiduciary duties to clients if they accept TPLF? Should it be a requirement that clients be given the full details of any funding arrangement in a case? May judges police that to protect the clients?
• One of the major points of controversy revolves around the appropriate level of funder control over litigation decision making which would traditionally be left to the lawyers and their clients. What level of control do, and should funders have over key decisions in litigation? How much access should funders have to discovery or other information generated during a case they are funding?
• What are a judge’s responsibilities to manage the use of TPLF in their courtrooms? What powers do they already have to require disclosures of TPLF or to regulate its use in cases?
• What obligations do judges have under existing rules of civil procedure to demand disclosure of TPLF?
• What obligations do judges have under their own ethical rules to demand disclosure of TPLF?
• What should Congress or state legislatures do about TPLF? What are they already doing? How effective are these efforts? Who is lobbying for and against legislation?
• Assess the public choice, interest group, and political economy dynamics affecting TPLF legislative efforts.
• What should a court order, local rule, or legislative mandate requiring disclosure look like?
• Do the requirements that Defendants must disclose insurance demand parity that plaintiffs should be required to disclose litigation financing?
• Is TPLF in our civil justice system just a typical free market innovation that should be embraced or does it, as one judge recently opined turn our courts into “casinos”?
• Is there a risk that foreign actors will use TPLF as a way to gain access to critical information, to impose costs on domestic firms, or to simply sow chaos in our courts system, as some analysts fear?
• Are there specific sectors of litigation that raise special concerns regarding the use of TPLF?  Mass torts? Intellectual Property? Others?
• How should we view the rise of law firms accepting TPLF? Should law firms use TPLF and, if they do, how does such use fit with the ethics rules regarding professional responsibility and the practice of law? Should they have an obligation to inform their clients of their use of TPLF given the risk that they could be accepting money from a funder who funds cases against their clients?
• How does the absence of data (given that usually neither the existence of TPLF nor the details of TPLF contracts must be disclosed in a case, with rare exceptions) affect the ability to research in this field?  Are there articles you cannot write simply because of the lack of transparency?  What might we learn if you did have access to that data?  Are the research possibilities from disclosure public policy reasons for requiring it?

These and other topics that expert applicants identify as worthy of analysis will be considered. Authors should make a point of explaining where their research will fill gaps in the existing research and literature.

1. Submission of Research Proposal – Submission Deadline of July 8, 2024:

2. Research Roundtable, Indianapolis, Indiana (October 10 – 12, 2024):

• Selected authors will present well-developed drafts of their papers at a private research roundtable. This research roundtable is designed to provide authors with constructive feedback from expert academics and practitioners in the field. In addition to the paper authors are expected to serve as commentators on all papers, the research roundtable will also include at least one additional commentator per paper who will join the roundtable. This peer review process ensures every draft paper undergoes significant scrutiny and receives substantial feedback for improvement. Research roundtable drafts should represent substantial work beyond the proposal, and they should be suitable for presentation at a faculty workshop. Authors chosen to present will be provided an honorarium of $4,000 per paper after timely submission of their draft and presentation of their work at the October Roundtable. Roundtable drafts will be circulated to participants two weeks prior to the roundtable and are therefore due by September 26, 2024.

3. Completion of Final Draft, Submission to a Suitable Academic Journal, and Posting to SSRN (December 1, 2024):

• Authors are expected to complete a final draft and post it to SSRN by December 1, 2024. The LEC will also host these drafts on its website (https://masonlec.org). Upon completion of these requirements, author(s) will receive a final honorarium for the remaining balance of $8,000 per article or $3,000 for scholarly essay. As a condition of receiving final payment, authors must commit to seek publication in a suitable academic journal by February 1, 2025, if submitting to the general law review pool or by January 1, 2025, if submitting to peer-reviewed journals.

In addition to providing honorarium, the LEC will provide lodging and meals at the Research Roundtable. Participants will be responsible for their own transportation arrangements and expenses.

 For questions about the Roundtable, please contact Gwendolyn Watson (gwatson4@gmu.edu).  

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The LEC’s Henry G. Manne Program in Law & Economics Studies promotes law and economics scholarship by funding faculty research, convening research roundtables, and hosting policy-relevant academic workshops and conferences.

Established in 2010 to honor the legacy of Henry G. Manne – legendary former Dean of the Antonin Scalia Law School, founder of the Law & Economics Center, and one of the founding fathers of the law and economics movement – the program seeks to improve the quality of legal scholarship by offering educational workshops on important and topical areas of study.

Since its founding, the Manne Program’s workshops and research roundtables have included more than 2,000 participants from 429 academic institutions. In addition to its core constituency of academics, Manne Program events also attract attendance from the policy community, including economists and lawyers from federal agencies, Capitol Hill, state government offices, and the non-profit and for-profit research sectors.