CONTRACTS & COMMERCIAL LAW eJOURNAL

"Of Priors and of Disconnects" Free Download
Harvard Law Review Forum, Vol. 127, p. 259, 2014
U of Michigan Law & Econ Research Paper No. 14-014
U of Michigan Public Law Research Paper No. 414

MARGARET JANE RADIN, University of Michigan Law School
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This essay is a response to Professor Michelle E. Boardman’s piece, 127 Harv. L. Rev. 1967 (2014), reviewing my book, Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law (Princeton 2013). I argue for the perhaps self-evident proposition that intellectual preconceptions (“priors?) can skew one’s understanding of a text, and in particular, that “Chicago? priors apparently make it difficult to parse critique. In this essay I describe “Chicago? priors, then use examples to argue that these priors led Boardman not only to misinterpret the major thrust of Boilerplate but also to misunderstand many of its details. I suggest that these priors, which are common in contemporary American legal thought, distort and obscure central issues relating to contemporary contract theory and practice.

"Claim Funders and Commercial Claim Holders: A Common Interest or a Common Problem?" Free Download
DePaul Law Review, Vol. 63, p. 305, 2014
University of Miami Legal Studies Research Paper No. 2014-6

MICHELE BEARDSLEE DESTEFANO, University of Miami - School of Law
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Commercial claim funding, where funders invest in business disputes in exchange for a percentage of any eventual settlement or judgment, is a growing industry in the United States. Funders may request confidential information about the claim and litigation strategy both before deciding to invest (to analyze the strength of the claim) and during the course of the financial relationship (to manage the investment). Further, these funders may work and communicate with claim holders and lawyers about the claim. However, there has been little case law and little in-depth analysis on whether — and in what circumstances — the attorney-client privilege and work-product doctrine can be applied to protect communications, interactions, and work shared with claim funders or developed between claim funders, lawyers, and claim holders. This Article attempts to fill that gap by exploring the way the doctrine has been applied in other contexts, including patent law, public relations, and insurance, to predict how the doctrine might be applied in the claim funding context.

Despite assumptions to the contrary, my analysis leads to two conclusions. First, there is more than one exception to waiver of the attorney-client privilege doctrine that might apply to protect communications between claim funders, claim holders, and their lawyers: the agency exception, the functional equivalence exception, and the common-interest doctrine exception may all apply. Second, despite its breadth, the work-product doctrine may be determined inapplicable depending on (1) the test and analysis the court uses to determine whether work-product protection applies, and (2) the court’s approach to analyzing the common-interest doctrine — a doctrine that is more commonly associated with the attorney-client privilege but that has been used by courts to demonstrate waiver of work- product doctrine protection as well.

Understanding that interactions and communications between claim holders, funders, and attorneys can be protected by the doctrine, the question is whether they should be. Invariably, such an inquiry could collapse into an analysis of whether we should allow claim funding at all, and, for that matter, whether privilege doctrines should exist in the corporate context. Putting those questions aside, I tackle the normative question by analyzing whether the problems commonly associated with commercial claim funding are intensified when the interactions between claim holders, funders, and lawyers are protected. Ultimately, I conclude that applying the exceptions to waiver and the work-product doctrine may, instead of increasing the risks and negative externalities of commercial claim funding, help to protect these interactions while simultaneously yielding benefits yet explored.

As a result, I conclude with two recommendations: one doctrinal and one practical. First, I recommend that courts adopt one of the more lenient interpretations of the common-interest doctrine. By doing so, both the attorney-client privilege and work-product doctrines can be consistently and predictably applied to protect communications at is- sue in this context. Second, I urge lawyers to carefully craft contracts so that they include nondisclosure and statements of common interest agreements.

In sum, I end with a word of caution. Despite the doctrinal support for the existence of a common interest between claim funders and claim holders, because of the common problems associated with claim funding and the common distaste for the commodification of law, claim funders, claim holders, and their lawyers should approach issues around confidentiality with caution.

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Northwestern University - School of Law, Northwestern University - Kellogg School of Management, European Corporate Governance Institute (ECGI)
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Stanford Law School, Columbia Law School, European Corporate Governance Institute (ECGI)
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Advisory Board

Contracts & Commercial Law eJournal

IAN AYRES
William K. Townsend Professor of Law, Yale University - Yale Law School, Yale University - Yale School of Management

RANDY E. BARNETT
Carmack Waterhouse Professor of Legal Theory, Georgetown University Law Center

LISA E. BERNSTEIN
Wilson-Dickinson Professor of Law, University of Chicago Law School

CLAYTON P. GILLETTE
Max E. Greenberg Professor of Contract Law, New York University School of Law

ROBERT A. HILLMAN
Edwin H. Woodruff Professor of Law, Cornell Law School

AVERY W. KATZ
Milton Handler Professor of Law, Columbia University - Law School

RANDAL C. PICKER
Leffmann Professor of Commercial Law; Senior Fellow, The Computation Institute of the University of Chicago and Argonne National Laboratory, University of Chicago - Law School

ALAN SCHWARTZ
Sterling Professor of Law, Yale Law School

MICHAEL J. TREBILCOCK
Professor and Chair in Law and Economics, University of Toronto - Faculty of Law

ELIZABETH WARREN
Leo E. Gottlieb Professor of Law, Harvard Law School