Two Models of Alternative Attorney-Payment Devices
Beyond Elite Law: Access to Justice for Americans of Ordinary Means (Cambridge Univ. Press 2015, Estreicher & Radice, Eds.)
25 Pages Posted: 9 Apr 2015
Date Written: April 6, 2015
This invited chapter considers the effect of alternative attorney payment devices on access to civil justice in U.S. courts. Contingent fee agreements and statutory fee-shifting provisions modify the convention that each party to a civil case pay for its own attorneys based on the amount of attorney time devoted to the matter. A popular line of argument holds that such devices ensure access to justice for litigants who could not otherwise make effective use of the civil justice system. But the devices also have allocational effects, shaping attorneys’ decisions about which clients to represent and which claims to prosecute.
The chapter introduces two models of alternative attorney payment devices -- the "enabling" and "determinant" models -- that emphasize the devices' capacity to enable litigation on the one hand and tendency to shape the universe of litigated cases on the other. It suggests that in a world of constrained supply, the determinant model better captures the role alternative payment devices play in the U.S. legal system. For policymakers, the analysis underscores the importance of a multifaceted approach to access to civil justice. If alternative payment devices are justice-allocating as much as they are justice-enabling, other regulatory interventions are needed to ensure that the civil justice system is accessible to Americans of ordinary means.
Keywords: access to justice, attorneys fees, contingent fees, fee-shifting
JEL Classification: K00, K40, K41
Suggested Citation: Suggested Citation