Media & Publications
Chicago investment firm wins big bankrolling other people’s lawsuits
When Chicago investment firm Gerchen Keller Capital launched in 2013, it carved out an unusual and controversial niche — bankrolling multimillion-dollar commercial lawsuits in return for a share of any judgment or settlement.
It was a gamble that paid off big for Gerchen Keller, now a major player in the growing field of litigation finance, and its three 30-something principals.
Back to the Basics: Public Adjudication of Corporate Atrocities Torts
The editors of this online symposium invited me to contribute to the subject of an argument I have recently advanced. This argument is that the world needs a permanent International Court of Civil Justice (ICCJ) to adjudicate cross-border mass torts. A common reaction to this proposal has been to suggest that the function of such an international court be assumed by one of the existing arbitration institutions or filled by a new one. I’d like to take this opportunity to argue against that idea.
Hulk Hogan Case Stirs Funding- Disclosure Debate
The litigation-funding industry has been gaining prominence in the U.S. for years, with sophisticated investors increasingly taking a stake in commercial lawsuits. But the revelation that Silicon Valley entrepreneur Peter Thiel backed Hulk Hogan’s invasion-of-privacy lawsuit against Gawker Media is rekindling a debate about the need for transparency in such arrangements.
NBC News: Peter Thiel/Gawker Case and the Ethics of Litigation Funding
The highly publicized lawsuit brought by Hulk Hogan against Gawker Media, which was secretly funded by venture capitalist Peter Thiel, thrust the world of third-party litigation funding into the national spotlight. The case amplified public concerns about transparency and the potential for wealthy interests to wield significant influence in the civil justice system.
WSJ: Litigation Financing Attracts New Set of Investors
The article, 'Litigation Financing Attracts New Set of Investors,' examined how hedge funds and other institutional investors are increasingly funding lawsuits in exchange for a portion of the recovery, a trend that is rapidly transforming the civil justice system.
As a leading expert in the field, Maya Steinitz was featured for her commentary on the ethical and regulatory challenges posed by the industry's growth.
Transnational Litigation as a Prisoner's Dilemma
In this Article we use game theory to argue that perceptions of widespread corruption in the judicial processes in developing countries create ex ante incentives to act corruptly. It is rational (though not moral) to preemptively act corruptly when litigating in the courts of many nations.
The upshot of this analysis is to highlight that, contrary to judicial narratives in individual cases—such as the (in)famous Chevron–Ecuador dispute used herein as an illustration—the problem of corruption in transnational litigation is structural and thus calls for structural solutions. The Article offers one such solution: the establishment of an international court of civil justice.
Incorporating Legal Claims
Recent years have seen an explosion of interest in commercial litigation funding. Whereas the judicial, legislative, and scholarly treatment of litigation finance has regarded litigation finance first and foremost as a form of champerty and sought to regulate it through rules of legal professional responsibility (hereinafter, the “legal ethics paradigm”), this Article suggests that the problems created by litigation finance are all facets of the classic problems created by “the separation of ownership and control” that have been a focus of business law since the advent of the corporate form.
How Much Is That Lawsuit in the Window? Pricing Legal Claims
Assessing the value of legal claims is the sixty-four thousand dollar question (no pun intended) of civil litigation.
Clients, as every litigator knows, often come into their attorneys' offices with a belief that they know how much their claim is worth. The attorney is then asked to validate that number.
Alternately, clients can come to their attorneys with a grievance-I have been injured, a counter-party breached its contract with me, I have been fired, our rainforest has been devastated by a mining company-and ask the attorney for an assessment of how much their grievance might be worth.
A Model Litigation Finance Contract
Litigation financing is nonrecourse funding of litigation by a non-party for a profit. It is a burgeoning and controversial phenomenon that has penetrated the United States in recent years.
Since “most of the important phenomena of modern litigation are best understood as results of changes in the financing and capitalization of the bar,” it is not surprising that litigation financing has been dubbed by RAND as one of the “biggest and most influential trends in civil justice” and by the Chamber of Commerce as “a clear and present danger to the impartial and efficient administration of civil justice in the United States.”
Transnational Legal Process Theories
This Chapter of The Oxford Handbook of International Adjudication is devoted to transnational legal process theories. The main thrust of the Chapter is that the field of transnational legal process theories has proceeded without the benefit of conceptual clarity regarding the key underlying concept: the concept of a/the ‘legal process’ and that a myriad of partly-overlapping concepts — such as international adjudication, supranational adjudication, and transnational litigation — are used interchangeably, willy-nilly.
Whose claim is this anyway? third-party litigation funding
Imagine that a woman wants to bring a claim for sexual harassment against her powerful and wealthy former employer but can neither afford counsel nor find an attorney willing to take the case on contingency. A private funder provides the necessary financing for her to pursue her claim.
Further suppose that the employer in question is a former governor, now the sitting President of the United States, and that the investor is a wealthy supporter of the President's political opposition, and that the case starts a chain reaction that could have brought an end to the President's term in office.
The Ad Hoc International Criminal Tribunals and a Jurisprudence of the Deviant
This short article is a synopsis of a doctoral thesis entitled Law as Communication: A Concept of International Law. Embedded in the legal theory of philosopher Joseph Raz - who argued that "whatever else the law is, it either claims legitimate authority, is held to possess it, or both" - this analysis of international law's claim of legitimate authority is based on an ethnographic study of the International Criminal Tribunals for the former- Yugoslavia and Rwanda.
The analysis of international law's claim of legitimate authority, which uses semiotics and performance-studies perspective, is then used as a basis for an examination of issues in analytic legal philosophy: the relationship between the phenomenology of law and its concept and the social-psychological dimensions of methodologies used and advocated for by legal philosophers.
Contingent Fees and Third Party Funding in Investment Arbitration Disputes
In this Special Mini-Edition of the Transnational Dispute Management Journal, co-editors Prof. Maya Steinitz and Joe Matthews have collected, edited and TDM now publishes original works by four authors who advance the critical analysis of issues raised by the increased presence of contingent fees and third party funding in connection with international investment disputes. TDM is also pleased to re-publish with permission an article authored by Prof. Steinitz in the Minnesota Law Review in January of this year entitled "Whose Claim is This Anyway? Third Party Litigation Funding."
Internationalized Pro-Bono and a New Global Role for Lawyers in the 21st Century: Lessons from Nation-Building in Southern Sudan
From 2004 to 2006, the author led the pro bono representation of the Sudan People’s Liberation Movement (“SPLM”), assisting the SPLM in drafting and negotiating the National Interim Constitution of Sudan, the Interim Constitution of Southern Sudan and the Constitutions of two “transitional” states. The representation was part of an emerging trend in pro bono representations. In small but increasing numbers, private law firms have begun to take on pro bono projects with global significance - assisting governments and civil society in post-conflict countries to deal on an even footing with foreign investors, for instance, or working with international criminal courts to prepare indictments of war criminals.
Robust Constitutions - The Deal News Weekly
Maya Steinitz conceived and oversaw one of the most ambitious international pro bono undertakings ever by a commercial law firm, a more-than-yearlong effort to assist the Southern Sudanese in drafting federal and regional interim constitutions.
The effort harnessed the energies of about 50 Latham & Watkins LLP lawyers in multiple offices around the world. It established a model for law firms wading into pro bono development of international rule of law.
The Impact of Sovereign Wealth Funds on the Regulation of Foreign Direct Investment in Strategic Industries: A Comparative View
Investments by sovereign wealth funds ('SWFs') - pools of capital accumulated by and under the control of sovereign states, mostly from the Persian Gulf and East Asia - in European and North American companies have changed dramatically both in scope and in nature in the last few years. This article examines the screening mechanisms in place, recently changed, or currently under consideration by the United States, France and India. While by no means an exhaustive or even representative survey, this sample highlights how different jurisdictions apply varying degrees of scrutiny to FDI in an age of increased sovereign-directed investments.