William Marra (Harvard Law School), Litigation Finance Disclosure and the Federal Rules’ Generalism Principle, New York University Law Review (forthcoming 2026) on SSRN. Here is the abstract:
The rise of non-recourse third-party litigation finance has generated significant debate about whether plaintiffs should have to disclose their funding. The leading forum for that question is the Advisory Committee on Civil Rules, which has debated for over a decade whether to amend the Federal Rules of Civil Procedure to mandate disclosure of non-recourse litigation funding agreements. Scholars and policymakers have debated the disclosure question at length, but they have focused on whether the disclosure of funding—and by extension, funding itself—is good or bad for civil justice.
This Essay raises a different, threshold question: whether the proposed disclosure rules would exceed the rulemaking authority that the Rules Enabling Act grants the Supreme Court and the Advisory Committee. Although scholars and advocates have overlooked this question, the Advisory Committee has repeatedly raised concerns that the proposed rules might violate the Act’s requirement that the Supreme Court and its committees enact only “procedural” rules without altering “substantive” rights.
This Essay argues that the proposed disclosure rules are improper subjects for federal rulemaking because they depart from the generalism principle underlying the Federal Rules. That principle provides that the Federal Rules should apply equally to all cases, without discriminating among causes of action, between forms of relief, or between plaintiffs and defendants. This principle derives from the Rules Enabling Act and cabins unelected judges’ rulemaking powers, limiting their ability to make substantive value judgments or exercise lawmaking powers reserved for the political branches.
The proposed disclosure rules violate the generalism principle because they are not general rules requiring the disclosure of all forms of third-party funding. Litigants routinely raise money from third parties to fund litigation. Third parties finance litigation through the contingent fee, debt capital, equity infusions, impact funding, and insurance subrogation, to name just a few forms of third-party funding. The proposed disclosure rules—drafted by interested lobbying groups like the U.S. Chamber of Commerce—are surgically crafted to require disclosure of only a small subset of third-party funding: the non-recourse kind used by plaintiffs rather than defendants, in cases seeking money damages rather than injunctive relief, and more likely used by small businesses and impecunious litigants rather than large corporations.
If the Court and the Advisory Committee wish to enact a third-party funding disclosure rule, they should enact a blanket rule requiring the disclosure of all forms of third-party funding. But the proposed disclosure rules would pick favorites among litigants and causes of action, making precisely the sorts of substantive policy distinctions that should be made, if at all, by the political branches.
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