The debate over third-party funding of legal claims just got more interesting. The debate already had plot twists, such as free-market scholars lining up in opposition to the U.S. Chamber of Commerce and alongside proplaintiff scholars who they oppose in tort reform debates. Now add to the mix a recent paper by Professors Horton and Chandrasekher that introduced an entirely new angle to the debate: funding of probate disputes. Now that this parallel area of funding has been identified, comparing and contrasting probate funding with litigation funding should illuminate the incentives that funders/recipients face in both scenarios. By pointing out the importance of probate funding, Professors Horton and Chandrasekher have benefitted the debate.
And yet, their contribution does not make the impact that it should have made, due to some unfortunate and avoidable missteps. This Essay identifies the authors’ mistakes so that the debate can proceed in more fruitful fashion. Part I addresses how Probate Lending gives short shrift to the difficult questions involved in discerning whether probate funding is a loan. Part II points out how the authors mistakenly conclude that they have measured ex ante risk instead of ex post results. Part III argues that the authors presume too much when they derive broad policy conclusions from an extremely narrow empirical study and when they ignore alternative explanations that are at least as plausible as those they champion. This Essay then concludes.
Jeremy Kidd, Clarifying the “Probate Lending” Debate: A Response to Professors Horton and Chandrasekher, 93 Notre Dame L. Rev. Online 149 (2018).