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

Abstract

The topic of this symposium is mass torts. My focus is on fees, costs, and subsidies. Given that my co-participants are judges, lawyers, and academics steeped in current practices (indeed creating them), I have no need to rehearse the arguments about the different methods used for paying lawyers or the insufficiency of current law. The law of attorneys' fees is the subject of dozens of law review articles, and both academic and popular literature evidence a shared sense that "something" needs to be done. But I do need to explain why figuring out what to do is difficult. As I begin to discuss a) judicial intervention into the market for legal services; b) judicial allocation of lawyers' fees that turn judges into purchasers of legal services; c) the challenges of determining whether and how to subsidize which litigants; and d) the effects of such decision making on the judicial role, I am conscious that I am engaging in a breach of etiquette. I am talking about judges directing the flow of money in civil litigation. But the discourse of civil justice has tried to avoid that topic; the phrase—judges as market-makers—is not regularly deployed.