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Ethics and Innovation
By Charles Silver
Using the familiar insight that principals and agents can jointly gain by reducing agency costs, this Essay argues (1) that lawyers hoping to attract clients should seek to improve the quality of representation in mass tort cases and to signal their reliability and honesty; (2) that lawyers have sought to adopt innovations that would reduce agency costs, including governance arrangements designed to address monitoring problems, facilitate collective choice by clients, and provide in advance for the allocation of settlement funds; (3) that courts, relying on state bar rules and other laws designed for single-client representations, have undermined lawyers’ efforts by stifling these innovations; and (4) that, by preventing lawyers from innovating, judges have insulated agency problems in mass tort representations from attack and have disserved clients despite seeking to protect them.

This Essay comments on articles by other authors that were presented at a conference on the American Law Institute’s project on the Principles of the Law of Aggregate Litigation, of which the author is Associate Reporter.

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About This Content
Keywords: Silver, Agency, Abbott, Mass Tort, Legal Ethics, Aggregate Settlement Rule
Content Type: Article
Media Type: Print
Author: Charles Silver
Publish Date: February 2011
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