Money Matters: Judicial Market Interventions Creating Subsides and Awarding Fees and Costs in Individual and Aggregate Litigation

Abstract:     
The law of attorneys' fees is the subject of dozens of law review articles; both academic and popular literature evidence a shared sense that "something" needs to be done. This article explores why figuring out what to do is so difficult.

Attorney fee allocations -- specifically in mass torts, in which individual cases are often aggregated but also when poor litigants seek court-assisted access to courts -- results in judicial intervention into the market for legal services. Judicial allocation of lawyers' fees turns judges into the purchasers of services. Hence, both aggregate processing and efforts to settle such aggregates pose new challenges for judges, now required (in light of recent Supreme Court decisions in two class action asbestos litigations) to ensure that adequate representation is provided to diverse sets of litigants within aggregates as a predicate to closure for such litigations.

This essay reviews alternative conceptions of the civil justice system, including the tensions between state subsidies as contrasted with unaided access to courts, laissez-faire lawyering as contrasted with regulated advocacy, as well as the difficulties of achieving inter-litigant equity -- hence increasing the appeal of aggregate processing. Based on the transformations of the last three decades, this essay suggests the directions that attorney-fee law needs to take to implement judicial obligations to ensure the adequacy of process in aggregate cases and the challenges that such obligations pose for judges.

JEL Classifications: K41

Accepted Paper Series