This article is a response to a criticism of the modern litigation finance industry, recently made, that it illegitimately takes control away from plaintiffs. Cardozo Professor Anthony Sebok makes two arguments. First, that U.S. courts have allowed exactly the same degree of alienation of control from litigants by insurance companies over the past thirty years. Second, that whether parties should be allowed to alienate control in should depend on a functional test and not on formalistic rules.
Over one hundred years ago, the Supreme Court emphatically declared that deportation proceedings are civil, not criminal, in nature. As a result, none of the nearly hundreds of thousands of individuals who were deported last year enjoyed any of the constitutional protections afforded to criminal defendants under the Sixth or Eighth Amendments. Until recently, there was little reason to think the Supreme Court would wade into the waters of the resurgent debate over the nature of deportation proceedings. In Padilla v. Kentucky, 130 S.Ct.