ABSTRACT
This Article is a response to David Capper’s ‘The Assignment of a Bare Right to Litigate’, in which he reviews the evolving approach to champerty in Ireland and the United Kingdom. Capper’s paper makes two claims. First, that maintenance is less offensive to the law of champerty than the assignment of ‘bare’ claims. Second, the law of champerty can, and ought to, distinguish the assignment of bare claims from other types of assignment and that the historical trend of allowing the assignment of choses of action should not be extended to bare assignments.
I offer a perspective on the parallel evolution from the point of view of the United States. In connection with Capper’s first claim, I note that in the United States there is great resistance to the first claim – in many jurisdictions the evils of maintenance are conflated with the purported evils of the assignment of ‘bare’ or ‘naked’ choses in action. In connection with Capper’s second claim, I argue that Capper’s proposal misidentifies the public policy concern that should ground a limitation on the assignment of claims. As I read the English cases, especially Lord Denning’s opinion in Trendtex Trading Corp v Credit Suisse, only a concern about abuse of process should warrant the refusal of courts to enforce economically-motivated assignments. The degree to which they are ‘naked’ or ‘bare’ has nothing to do with whether the assignments violate public policy, and analysis based on this concern should be abandoned.
Sebok, Anthony J, Going Bare in the Law of Assignments: When is an Assignment Champertous? (March 4, 2022). 14 FIU Law Review 85 (2020), Cardozo Legal Studies Research Paper No 661.
First posted 2022-03-08 14:00:23
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