The Inauthentic Claim

This Article takes a critical look at the persistence of legal doctrines that prohibit or limit property rights in litigation. The Article focuses on prohibitions on assignment and maintenance. Assignment of personal injury tort claims is prohibited throughout the United States, while the assignment of other claims, such as fraud and professional malpractice, is prohibited in a large number of states. Maintenance, in which a stranger provides something of value to a litigant in order to support or promote the litigation, is prohibited in varying degrees in the United States. These doctrines might seem quite independent of each other at first glance, but as I will demonstrate below, their persistence in U.S. law is due to their reliance on a common conceptual claim about the very nature of law. This claim asserts first, that there is a quality, separate from and in addition to legal validity, which confers authenticity to a lawsuit, and second, that a lawsuit which fails to be authentic cannot be recognized by a court, regardless of the positive social consequences of allowing such suits. The claim does not presuppose that inauthentic lawsuits are more likely to be spurious, fraudulent, or frivolous. What distinguishes the theory of the inauthentic claim from more familiar theories about the conditions which lead to fraudulent lawsuits is that it asserts that a court cannot even hear a suit based on allegations known to be true and legal theories known to be valid because actions taken by the claimant corrupted or polluted the claim. While there might be some version of a complex consequentialist argument behind the assumption that inauthentic claims must be prohibited, or, at the very least, limited, this Article will leave it for others to develop that argument. I will, instead, take seriously those who believe that inauthentic claims are, as a matter of history or principle, inconsistent with the common law\u27s values and traditions