The main debate surrounding litigation funding in recent years has focused on the question of disclosure of funding agreements. While the issue is important, predominantly because of its effects on the course and outcome of individual cases, far more important are bigger, interrelated questions which have systemic effects on the civil justice system, the legal profession, and the nature of the rise of portfolio funding- which I here propose to view as a new form of undisclosed and unregulated claim aggregation- has broader-still effects including clients' potential, and at times actual, loss of autonomy over their cases as their lawyers become originators, brokers and/or managers of 'litigation assets.'

Commercial third-party litigation funding (“TPLF”) is not centrally regulated in the United States.  It is subject to the overlapping jurisdiction of state and federal courts, state and federal legislatures, regulatory agencies, and bar associations. Legislation, regulation, and oversight of TPLF is being undertaken at each of those levels – much of it centered around the questions of when and whether TPLF should be disclosed; how to mitigate conflicts of interest created by TPLF (including the potential for claimants to lose control over their case to funders); and the identification of any foreign individuals, entities, or countries that may be providing the funding. At least 12 state legislatures and the U.S. Congress have passed or considered TPLF legislation. Many federal and state courts have issued standing orders regarding litigation finance. In TPLF cases, courts have used their inherent powers to investigate potential abuse of process and to determine whether those appearing before the court are the real parties in interest.