This paper considers a non-consequentialist argument raised by opponents of alternative litigation financing (sometimes called third-party litigation financing). The objection is that, apart from any effect that this method of funding might have on litigation rates, settlement incentives, or the lawyer-client relationship, something is intrinsically wrong with allowing a third party (not a litigant, the lawyer, or a liability insurer) to invest in a litigated claim. Somehow the participation of third-party funders transforms a non-market good into a commodity. This is a familiar form of argument, made familiar in legal scholarship by the work of Margaret Radin, and recently advanced by Michael Sandel in his critique of market modes of valuing various human goods.
My argument here is that, first of all, opponents of third-party funding have not made the commodification objection with any real rigor and, second, if they were to make it rigorously, the most promising way to flesh it out would be using an expressive account of values. On an expressive approach, the argument would be that alternative litigation finance somehow manifests an inappropriate attitude toward the civil justice system. An expressivist might contend, for example, that in a tort lawsuit there is an intrinsically relational quality to a cause of action, which gives rise to agent-relative reasons which create obligations for wrongdoers to rectify harms. Allowing third parties to invest in these claims manifests the wrong type of attitude toward rights-based, relational values, by implying that the victim's rights are fungible with money.
The trouble with that argument, however, is that the tort system includes practices such as insurance and settlement which depart from a strictly agent-relative understanding of the normative basis of tort liability. Other tort doctrines, such as the recoverability of damages for emotional distress and the enforceability of advance contractual waivers of liability, similarly exhibit the commodifying tendency to which opponents of alternative litigation finance object. Moreover, the anti-commodification is only an argument that works with a corrective justice approach; most opponents of alternative litigation finance are probably not committed corrective justice (or civil recourse) theorists. On a welfarist or consequentialist account of the tort system, third-party funding seems acceptable from the get-go, since all doctrines are evaluated in terms of their efficiency.
While this paper does not endorse the anti-commodification critique of alternative litigation finance, it aims to show what a non-strategic anti-commodification argument would look like.