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Essay in Reconstruction”, 96 Harv. L. Rev. 1174, 1176 (1983).52
Nor do I suggest that the contingent fee agreement in the case at
hand operated unfairly so as to make it unenforceable. I do
suggest that the character of the agreement as a contract of
adhesion supports my ultimate finding that Mr. Kenseth as the
adhering party gave up substantial control over his claim, which
was the subject matter of the agreement.
ii. American Bar Foundation Contingent Fee Study
My ultimate finding in this case is not just the sympathetic
response of a “romantic judge”53 or an idiosyncratic reaction
divorced from the practical realities of the operation of
contingent fee agreements. My findings on Mr. Kenseth’s reduced
control over the prosecution and recovery of his claim are
supported by the recurring comments to the same effect in the
study by MacKinnon, Contingent Fees for Legal Services: A Study
of Professional Economics and Liabilities (American Bar
Foundation 1964). What is striking about the MacKinnon study,
which makes no mention of any tax questions, are its repeated
52 In a departure from traditional analysis, Rakoff, supra
at 1178-1179, asserts that adhesive contracts may exist in
otherwise competitive markets. This would appear to be the case
with respect to that segment of the market for legal services in
which contingent fee agreements are customarily used. There is
no reason to believe that much if any bargaining occurs with
respect to the other terms of contingent fee agreements
concerning the attorney’s lien and the contractual provisions for
its enforcement. So it appears in the case at hand.
53 See Glendon, A Nation Under Lawyers 151-173 (1994).
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