We finally flipped through Martin Redish’s paper, “Private Contingent Fee Lawyers and Public Power: Constitutional and Political Implications,” which we found through Point of Law.

The paper focuses on the government’s use of private contingent fee lawyers to prosecute civil litigation. We like Redish’s argument: “Imagine a system in which all police work is performed not by governmental employees but by private contractors who are paid by the arrest: the more arrests, the more money they receive. Can anyone seriously imagine that such a system would be either constitutional or in any way consistent with the values of the American political system? I think not.” Redish paper at 1.

And we like Redish’s conclusion: The “government’s use of private contingent fee attorneys in civil litigation is (1) inconsistent with the nation’s democratic tradition, (2) unethical, and (3) a violation of the Due Process Clause.” Id. at 6. “[T]he contingency fee practice removes the protections assured to defendants politically by the social contract that inheres in liberal democracy and constitutionally by the Due Process Clause.” Id. at 10.

That stuff alone makes the paper worth reading.

But what really grabbed us came many pages later. Redish acknowledges that qui tam actions seem to put government power in the hands of private litigants, and he explains at length why the qui tam analogy does not justify using private contingent fee lawyers to pursue public claims. Id. at 25-30.

And then the kicker: “[T]he modern form of the qui tam action has never been subjected to scrutiny under the analysis by which I have found the private contingency fee action improper.” Id. at 30 n.81.

We know this isn’t a qui tam blog, but here’s a wake-up call to the readers of this blog who also play in the qui tam sandbox: Read the Redish piece, and think about using his analysis to defend qui tam cases.

Back to drugs and devices shortly.