There is growing concern about the ways that trial lawyers are hijacking our court system, turning it into both a backdoor mechanism for achieving progressive policy outcomes and a reliable source of political money for left-wing candidates and political committees, often in coordination with activist groups. The problem calls for a response, especially from conservatives who care about protecting our nation from woke lawfare. And there is a good one, as Kansas and Utah statehouses demonstrated this spring: bills that strip away the tools trial lawyers and their activist allies use to advance their agenda (and unlock money) through state court litigation. But there is also an ineffective, counterproductive response, which has been drawing resources and attention that could be better deployed into productive efforts to curtail trial lawyers and their political and ideological allies.
The ineffective solution focuses on so-called “third-party litigation finance” and attempts to make its acronym (“TPLF”) into a bogeyman in the battle with trial lawyers. A growing federal effort—anchored most notably by Senator Thom Tillis’s Tackling Predatory Litigation Funding Act—best embodies this approach. It proposes to tax, disclose, and otherwise try and curtail litigation finance by non-lawyers, on the theory that this would lead to less litigation and less power for the nation’s trial lawyers. Traditional tort-reform and civil justice groups have rallied behind these efforts, and so too have many major businesses.
But these litigation finance efforts are ineffective on their own terms—even before considering how they fail to address the most consequential category of woke lawfare in America and would thwart conservative efforts to stop corporate America’s leftward drift.
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