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The fact is that lobbyists and investors, like Sheldon Silver, the New York State Assembly speaker, are pushing states across the country to overturn laws and legal standards that had previously, for more than 2,000 years, proscribed third-party financing of litigation.
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Australia pioneered third-party financing of civil litigation in the 1990s.
But in 2007, Maine enacted legislation permitting financing of such litigation and a handful of other states have followed thanks to the trial lawyer lobby.
In May, Burford Capital, which calls itself the world's largest provider of finance for litigation and arbitration, announced that twenty-eight per cent of private-practice lawyers it surveyed said their firms have used litigation finance directly a fourfold increase since 2013.
The American Bar Association recently issued a report that outlined the risks of litigation financing but did not condemn the practice.
This kind of litigation financing is prohibited in several states.
Is the legal innovation of litigation finance levelling the playing field or making justice a commodity?
Looking elsewhere for financial support, Donziger found it in the emerging field of "litigation finance".
In the more established field of litigation finance, investors who underwrite the cost of a lawsuit get 5 percent to 50 percent of any legal settlement or jury award.
As David Neuberger, the President of the Supreme Court of the United Kingdom, said, in a caveat to his overall endorsement of litigation finance, "What can be used for the benefit of all can also be abused to the benefit of some".
The MC Mojave case, in which elderly residents "discovered" that they were suing a homebuilder after they agreed to free home inspections, has been cited as an example of litigation finance run amok.
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