The History of Contingency and the Contingency of History
DePaul University - College of Law
In the DePaul Law Review, Vol. 47, No. 2, 1998
This comment considers the implications of the historical evidence that the use of contingency fees extends back in American legal history to the early nineteenth century. Such a dating casts doubt on the three historically based criticisms of contingency fees: that they are a product of the late nineteenth century development of the modern tort system (hence a fit target for tort reform), that they are a partisan mechanism designed for a society riven by labor strife (unnecessary in a more peaceful and prosperous era), and that they are intimately connected to late nineteenth century ambulance chasing (thus exemplifying the worst aspects of our adversary system). Locating the rise of contingency fees in the early 1800s highlights their association with the strongly felt American desire to insure access to court for both rich and poor alike as signaled in the Sixth Amendment's guarantee of the right to counsel and rejection of the "loser pays" rule. America's early embrace of the contingency fee bespeaks a choice to allow free court access rather than accept principles of repose.
Date posted: July 30, 1998
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