Abstract

The rising cost of litigation and the Supreme Court's expansion of forced arbitration leave vast swaths of consumers and civil rights plaintiffs without an adequate path to the only forum with the independence to fairly decide controversies: courts. This access-to-justice gap presents an opportunity for third parties seeking to profit from litigation to provide funding to support plaintiffs' litigation costs in exchange for an interest in the judgement or settlement. But third-party litigation funding mostly benefits businesses, and it does not help plaintiffs overcome forced arbitration. Many who acquire third-party funding realize that they are victims of a new form of aggressive and underregulated subprime lending. Moreover, several cases involving third-party funding reveal conflicts of interest resulting from funding agreements. This Note shows how harms from third-party funding and forced arbitration lead to both material abuses of consumers and a lack of transparency in dispute resolution. Congress must corral these twin harms to prevent further erosion of courts' perceived legitimacy. Joining current proposals for regulation of third-party litigation funding and restrictions on forced arbitration will enable Congress to cut through the gridlock and restore the reputation of federal courts by opening the doors to claimants.

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