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WORK TITLE: In Praise of Litigation
WORK NOTES:
PSEUDONYM(S):
BIRTHDATE:
WEBSITE:
CITY:
STATE:
COUNTRY:
NATIONALITY:
https://www.law.uconn.edu/faculty/profiles/alexandra-d-lahav * https://www.law.uconn.edu/sites/default/files/faculty-cvs/CV_2017.pdf * https://www.law.uconn.edu/about/press-room/alexandra-lahav-defends-litigation-new-book * https://www.corporatecrimereporter.com/news/200/alexandra-lahav-in-praise-of-litigation/ * https://www.linkedin.com/in/alexandra-lahav-65bb9297/
RESEARCHER NOTES:
LC control no.: n 2016025004
Descriptive conventions:
rda
Personal name heading:
Lahav, Alexandra D.
Field of activity: Civil procedure
Profession or occupation:
Law teachers
Found in: Civil procedure, 2016: ECIP t.p. (Alexandra D. Lahav, Ellen
Ash Peters Professor of Law, University of Connecticut
School of Law)
University of Connecticut School of Law website, viewed
5/6/2016 (Alexandra D. Lahav, Ellen Ash Peters Professor
of Law)
================================================================================
LIBRARY OF CONGRESS AUTHORITIES
Library of Congress
101 Independence Ave., SE
Washington, DC 20540
Questions? Contact: ils@loc.gov
PERSONAL
Female.
EDUCATION:Brown University, B.A., 1993; Harvard Law School, J.D., 1998.
ADDRESS
CAREER
Writer. University of Connecticut School of Law, Hartford, CT, Ellen Ash Peters Professor, 2004-present. Worked previously as clerk for Justice Alan Handler of the New Jersey Supreme Court; practiced law with Emery Cuti Brinckerhoff and Abady, PC., New York City; worked as a teaching fellow at Stanford Law School; taught at Columbia, Harvard and Yale.
WRITINGS
SIDELIGHTS
Alexandra Lahav is a writer and professor of law. She teaches as the Ellen Ash Peters Professor at the University of Connecticut School of Law. Lahav’s areas of expertise include civil procedure, complex litigation and mass torts. Her research focuses on the role of litigation in American democracy, the limitations of due process in class actions and aggregate litigation, and procedural justice.
Lahav received her B.A. in history from Brown University in 1993. She attended law school at Harvard Law, where she received her J.D. magna cum laude in 1998. Following graduation from Harvard, Lahav worked as a clerk for Justice Alan Handler of the New Jersey Supreme Court. She then practiced law with Emery Cuti Brinckerhoff and Abady, PC., a boutique civil rights firm in New York City. During this time she litigated police misconduct, First Amendment retaliation, intellectual property, and worked on the largest civil rights class action settlement in the history of New York.
Lahav was a teaching fellow at Stanford Law School and has taught at Columbia, Harvard and Yale. She began teaching at the University of Connecticut in 2004.
In her book, Lahav makes the argument that litigation benefits society and promotes democracy. Lahav divides her argument into four categories: enforcement of the law, transparency through litigation, participation in self-government, and equality before the law. Each section has a chapter dedicated to it. Lahav argues that the litigation system essentially works well and is crucial for democracy to function. She explains that the danger of litigation is the constraints on litigation that have slowly entered the legal system, hindering access to the legal process.
One recurring point that Lahav points to is the misrepresentation of litigation in media and elsewhere, and how this has led to its, at times, unsavory reputation. She cites specific examples of misrepresentation in the media, and contrasts this with the reality of litigation. Media tends to focus on the most excessive or ridiculous legal disputes. In reality, the vast majority of legal cases deal with contract disputes and are quickly settled. Lahav depicts how this misrepresentation is often secretly at the hands of opponents of the current legal system. A contributor to Publishers Weekly wrote that Lahav’s “contention is bolstered by her well-reasoned analyses that perfectly balance detail with brevity, making this work fully accessible to non-lawyers and readers unversed in the debates about access to justice and tort reform.”
BIOCRIT
PERIODICALS
Publishers Weekly, December 12, 2016, review of In Praise of Litigation, p. 138.
ONLINE
Complete Review, http://www.complete-review.com (June 11, 2017), M.A. Orthofer, review of Praise of Litigation.*
Alexandra D. Lahav
Ellen Ash Peters Professor of Law
Headshot of Professor Lahav.
alexandra.lahav@uconn.edu
860-570-5217
Office: Hosmer 133
PDF icon Curriculum Vitae
Scholarship
Procedure
Complex Litigation
Remedies
Mass Torts
Law & Inequality
Civil Procedure
Torts
Professional Responsibility
Alexandra D. Lahav is the Ellen Ash Peters Professor at the University of Connecticut School of Law. She is an expert on civil procedure, complex litigation and mass torts.
Professor Lahav’s research primarily focuses on procedural justice and the limits of due process in class actions and aggregate litigation and on the role of litigation in American democracy. She has published widely on issues relating to complex litigation, including the use of statistical sampling in litigation, what role equality should play in litigation, and how courts can better manage multijurisdictional litigation. Her book, In Praise of Litigation (Oxford 2017) makes the case that litigation is a social good that promotes democracy. She is also co-author of the fifth edition of the popular civil procedure casebook Civil Procedure: Doctrine, Practice, and Context. She teaches civil procedure, torts, complex litigation, professional responsibility and advanced courses in these areas.
Professor Lahav received her BA in history from Brown University and graduated magna cum laude from Harvard Law School. She clerked for Justice Alan Handler of the New Jersey Supreme Court and practiced with a boutique civil rights firm in New York City, now called Emery, Celli, Brinckerhoff & Abady LLC. She was a teaching fellow at Stanford Law School before joining the UConn faculty in 2004 and has also taught at Columbia, Harvard and Yale.
Alexandra D. Lahav, In Praise of Litigation, (Oxford University Press, 2017)
Alexandra D. Lahav, The Case for "Trial by Formula," 90 Texas L. Rev. 571 (2012)
ALEXANDRA DEVORAH LAHAV
University of Connecticut School of Law
55 Elizabeth Street, Hartford CT 06105
860.570.5217
alexandra.lahav@
uconn.edu
ACADEMIC APPOINTMENTS
University of Connecticut School of Law
Ellen Ash Peters Professor (2015
-
present); Joel Barlow Professor
(2013
-
2015); Professor
(2009
-
2013); Associate Professor (2004
-
2009)
Visiting Professor Harvard Law School (Fall 2015), Yale Law School (Fall 2013), Columbia Law
School (Fall 2011), Fordham Law School (2009
-
2010), Buchma
nn Faculty of Law, Tel Aviv
University (May
-
June 2007)
Courses taught: civil procedure, torts, complex litigat
ion, advanced civil procedure,
professional
responsibility, tort reform, tort law and alternatives seminar, legal ethics seminar.
PUBLICATIONS
Books
IN PRAISE
OF LITIGATION (Oxford Univ. Press
2017)
CIVIL PR
OCEDURE: DOCTRINE, PRACTICE AND CONTEXT (4th editio
n, 2012; 5th ed., 2016) with
Stephen N. Subrin, Martha L. Minow, Mar
k S. Brodin, and Thomas O. Main
Journal Articles
The Roles of Litigation in American Democracy, 65 Emory L. Rev. 1657 (2016)
The Market for Preclusion in Merger Litigation, 66 Vanderbilt L. Rev. 1053 (2013)(with Sean J.
Griffith)
The Case for “Trial by Formul
a,” 90 Tex. L. Rev. 571 (2012)
(
Selected for
Branstetter
New Voices in Civil
Justice Worksh
op, Vanderbilt Law School, 2012)
Portraits of Resistance: How Lawyers Respond to Unjust Proceedings, 57 UCLA L. Rev. 725
(2010
)
(
Selected for
Fred C. Zacharias Memorial Prize
)
Bellwether Trials, 76
Geo. Wash. L. Rev. 576 (2008)
The Law and Large Numbers: Preserving Adjudication in Complex Litigation, 59 Florida L.
Rev. 383 (2007).
Alexandra D. Lahav
–
May
2017
2
of 6
Fundamental Principles for Class Action Governance,
37 Indiana L. Rev. 65 (2003)
Book Chapters, Shorter Wor
ks & Symposia
Participation and Procedure, 64 DePaul L. Rev. 513 (2015)
The Jury and Participatory Democracy, 55 Will
iam & Mary L. Rev. 1030 (2014)
Symmetry and Class Action Litigatio
n, 60 U
CLA L. Rev. 1494 (2013)
The Political Justificati
on for Group Litigation,
81 Fordham L. Rev. 3193 (2013)
Due Process and the Future of Class Actions,
44 Loy. U. Chi. L.J. 545 (2012)
Rites without Rights: A Tale of Two Military Commissions, 24 Yale Journal of Law &
Humanities 439 (2012)
Are Class Actions Unconstitutional? 106 Mich. L. Rev. 993 (2011) (book review of Martin H.
Redish, Wholesale Justice: Constitutional Democracy and the Problem of the Class Action
Lawsuit (2009))
Two Views of the Class Action, 79 Fordham L. Rev. 1939
(2011)
The Curse of Bigness and the Optimal Size of Class Actions, 63 Vand. L. Rev. En Banc 117
(2010)
Recovering the Social Value of Jurisdictional Redundancy
, 82 Tulane L. Rev. 2369 (2008)
Absence Makes the Heart Grow Fonder: Dead Souls, Pha
ntom Clients and the Modern Class
Action in 40
S
TUDIES
I
N
L
AW
,
P
OLITICS
A
ND
S
OCIETY
340 (Austin Sarat ed., 2007)
Recent Publication: The Strange Career of Legal Liberalism, 32 Harv. Civil Rights
–
Civil
Liberties L. Rev. 565 (1997) (book review of La
ura Kalman, Strange Career of Legal Liberalism
(1998))
PRESENTATIONS
Faculty Workshops
The
Disintegration of Procedure
Harvard (Nov. 2016); University of Virginia (Sept. 2016); UNLV
-
Boyd (Oct. 2017);
Emory (Jan.
2017); Texas (April 2017)
Equality in Civil Litigation
Roger Williams University (March 2015); University of Southern California
-
Gould (Sept. 2014)
The Market for Preclusion in Merger Litigation
Fordham (March 2012)
Alexandra D. Lahav
–
May
2017
3
of 6
The Case for “Trial by Formula”
Columbia (Dec. 2011);
Brooklyn (Dec. 2011)
Rights Without Rights: A Tale of Two Military Commissions
Northeastern
(
March 2011
)
Rough Justice
Pacific McGeorge (Nov. 2009); University
of Florida, Levine College of
Law (March 2010)
Portraits of Resistance: How Lawyers Respond to Unjust Proceedings
Brooklyn (Jan. 2009); Boston University
(Jan. 2009); Seton Hall
University (Oct. 200
8); Boston
College (Sept. 2008)
Bellwether Trials
St. John’s (March 2008); Washington University
–
S
t. Louis, MO (Oct. 2007);
Tel Aviv University
(May 2007)
Absence Makes the Heart Grow Fonder: Dead Souls, Phantom Clients and the Modern Class
Action, Eastman Lecture, Department of Law, Jurisprudence and Social Thought, Amherst
College (April, 2006)
Conferences
Presenter, MDL Problems, Section on Litigation, AALS Annual Meeting, January 6, 2017.
Presenter, Rule 23@50, NYU Law School, December 2, 2016
Presenter, The Role of Litigation in American Democracy, Pound Conf
erence on Civil Justice,
Emory Law School, October 15, 2015.
Presenter, Participation and Procedure, Clifford Symposium, DePaul University College of Law,
April 24
-
25, 2014.
Presenter, Transparency in Civil Litigation, Through a Glass Starkly: C
ivil Procedure
Reassessed, Northeastern Law School, April 11, 2014.
Presenter, The Jury as a Political Institution, William & Mary Law School, February 22
-
23, 2013.
Presenter, Twenty
-
First Century Litigation: Pathologies and Possibilities, UCLA, Jan
uary 24
-
25,
2013.
Alexandra D. Lahav last updated 7/20/16
Page 5 of 7
Presenter, Corporate Liability for Human Rights Violations, Tel Aviv University, Dec. 16
-
17,
2012.
Presenter, Representing Groups, Fordham Law School, November 30, 2012
.
Alexandra D. Lahav
–
May
2017
4
of 6
Commentator, Law as a Business, The Law: Business or Profession, Fordham Law School, April
23
-
24, 2012.
Presenter, Eugene P. and Delia S. Murphy Conference on Corporate Law, Fordham Law School,
April 9, 2012.
Presenter, The
Future of Class Actions and Its Alternatives, Loyola University
-
Chicago Law
School, April 13, 2012.
Presenter, Aggregation and Mass Torts, Mass Torts and the Federal Courts, Charleston Law
School, Feb. 24, 2012.
Presenter, Are Class Actions Unco
nstitutional?, Association of American Law Schools, Civil
Procedure Section Panel, January 2012.
Conference Organizer, Actuarial Litigation, University of Connecticut Insurance Law Center,
April 11, 2011.
Presenter, Rites Without Rights: A Tale of
Two Military Commissions, Courts: Representing
and Contesting Ideologies in the Public Spheres, Yale Law School, February 4, 2011.
Presenter, Provocation: Law and War, Northeast Law and Society Conference, Amherst, MA,
October 2, 2010.
Invited
Participant, Layering Gove
rnance: Multi
-
Level Regulation U
nder Bush and Beyond,
Center on Federalism and Intersystemic Governance, Emory University School of Law, May 1
-
2,
2009.
Presenter, Representing Guantanamo Detainees, A
Place Beyond Law: Detainees Held in
Guantánamo Bay, Cuba Panel, Law and Society Annual Conference, Montreal, Canada, May 30,
2008.
Presenter, Recovering the Social Value of Jurisdictional Redundancy, Tulane Law Review
Symposium: The Problem of Mult
idistrict Litigation, New Orleans, LA, February 16, 2008.
Presenter and Organizer, Wal
-
Mart: Inter
-
doctrinal and Interdisciplinary Approaches to Law,
Association of American Law Schools, Open Source Panel, Washington, DC, January 5, 2007
(developed p
anel chosen by com
petition).
Presenter and Organizer, The Phantom Client, Association of American Law Schools,
Professional Responsibility Section Panel,
Washington, DC, January 6, 2007
In
vited Participant, Governance by Design: Cost, Effectiveness and Democratic Norms, Harvard
Law School
, Cambridge, MA, March 25, 2005
Presenter, “Historicism in Judicial Opinions,” Law Culture and Humanities Conference, New
York, NY, 2003
Alexandra D. Lahav
–
May
2017
5
of 6
Contin
uing Legal Education (Selected Presentations)
The Ne
w Class Action Landscape, ABA 20th
Annual Class Action Institute, Oct.
19, 2016
(presenting at this event
yearly
since 2013)
A Preview of the Proposed Changes to the Federal Rules of Ci
vil Procedure, Co
nnecticut Bar
Associatio
n Annual Meeting, June 17, 2013
The Supreme Court Class Action Docket, Boston Bar
Association, February 11, 2013
Advocacy at Guantanamo Bay, District of Connecticut Ben
ch Bar Conference, Oct. 8, 2010
Eighth Annual Class Actions/Mass Torts Symposium, New Orl
eans Bar Association, Oct. 2008
SERVICE
Select University & Law School Service
Chair, Promotion and Tenure Committee (elected by faculty), 2012, 2014
-
2015
Member, Curriculum Reform Commi
ttee, 2011
-
2014 (Chair 2014)
Chair, Educational Policy Committee, 2012
Co
-
Chair, Workshops Committee, 2016
Member, The Gladstein Committee (University committee), 2011
-
2016
Member, Faculty Appointments Committee (elected by faculty), 2008
-
2009, 2010
-
2
011, 2016
-
present
Member, Dean Search Committee (elected by faculty), 2006
-
2007
Advisor, Connecticut Law Review, 2006
-
2007, 2008
-
2011
Other Service
Member, Executive Committee, Professional Responsibility Section, AALS
Member, Executive Committee, Remed
ies Section, AALS
Member, Executive Committee, Litigation Section, AALS
Manuscript referee:
Cambridge University Press,
Oxford University Press
Outside reviewer: American Political Science Review, Journal of Law & Society, Harvard Law
Review, Yale Law J
ournal, Harvard/Yale/Stanford Junior Faculty Forum (2015)
OTHE
R PROFESSIONAL EXPERIENCE
Stanford Law School, Thomas C. Grey Fellow (2002
-
2004)
Emery Cuti Brinckerhoff & Abady PC, Associate (1999
-
2002)
Justice Alan Handler, New Jersey Supreme Court, Law Clerk (1998
-
1999)
Debevoise &
Plimpton LLC, Summer Associate (June
-
August 1997)
Alexandra D. Lahav
–
May
2017
6
of 6
EDUCATION
Harvard Law School, J.D., magna cum laude, 1998
Brown University, B.A. (with honors), 1993
BAR ADMISSIONS
New York, Massachusetts (inactive), Southern and Eastern Districts of New York
AWARDS, DISTINCTIONS
2011 Branstetter New Voices in Civil Jus
tice Workshop, Vanderbilt Law School
2010 Fred C. Zacharias Memorial Prize for Best Article in Professional Responsibility
2008
-
2009 Human Rights Insti
tute, University of Connecticut
, Research Fellowship
MEDIA
Quoted in articles in the
Los Angeles Times,
New York Times, Wall Street Journal
, Bloomberg, Thompson
Reuters,
Law360, National Law Journal and New York Law Journal. Appearances on the
Diane Rehm
Show
(NPR), Southern California public radio (WKPCC) and New York public radio (WNYC).
Professor Alexandra Lahav Defends Litigation in New Book
February 2, 2017 - Jeanne Leblanc - School of Law
UConn Law Professor Alexandra Lahav's new book debunks popular myths about the role of litigation in American society.
The popular perception of a nation awash in frivolous lawsuits and outrageous damage awards is not just inaccurate, it is undermining one of the pillars of American democracy, writes UConn Law Professor Alexandra Lahav in a new book, In Praise of Litigation.
This is because courts and legislatures have reacted by limiting people’s ability to bring suit in areas as diverse as the securities laws, civil rights, employment, and personal injury.
“Limitations on lawsuits have the practical effect of limiting individual rights,” she explains, “because lawsuits are the central mechanism for enforcing and protecting rights in the United States.” She debunks the common claims that litigation is rampant explaining that “Evidence indicates that most people who are harmed do not sue, many who do sue receive relatively small recoveries, and the number of cases where there have been large punitive damages awards are in the single digits.”
The book, released this month by the Oxford University Press, examines lawsuits that have promoted social change and brought wrongdoing to light, including school desegregation and advances in marriage rights, along with lawsuits that enforced the Americans with Disabilities Act, made cars and other products safer, and compensated individuals for damage done to them. Lahav points out that litigation has costs, but its benefits are too often ignored in reform efforts. These benefits include enforcing the law, releasing important information, and promoting both participation and equality among citizens.
The book is an important reminder of why litigation matters, according to David Cole, a Georgetown Law professor and national legal director of the American Civil Liberties Union. “In a culture where it has become fashionable to bash lawyers and the lawsuits they file, Alexandra Lahav reminds us, in forceful, engaging, and compelling prose, that litigation plays an essential role in our democracy,” he writes. Publishers Weekly praises it for “well-reasoned analyses that perfectly balance detail with brevity.”
Lahav, an expert on civil procedure, complex litigation and mass torts, has written and spoken extensively on civil procedure and the role of litigation in democracy. In addition to writing a popular civil procedure casebook, she has testified before Congress and written amicus briefs in Supreme Court cases relating to class actions. Her articles have been cited by numerous district and appellate courts.
Lahav was a teaching fellow at Stanford Law School before she joined the UConn Law faculty in 2004, and she has also taught at Columbia, Harvard and Yale.
Alexandra Lahav
University of Connecticut School of Law
Associate Professor of Law
Alexandra Lahav joined the faculty of University of Connecticut School of Lawas Associate Professor of Law in August 2004. Prior to joining the faculty, she was a teaching fellow at Stanford Law School. From 1999 to 2002, Professor Lahav was associated with the firm Emery Cuti Brinckerhoff and Abady, PC (now Emery Celli Brinckerhoff and Abady) in New York, a boutique firm specializing in civil rights litigation. She litigated police misconduct, First Amendment retaliation, intellectual property and other cases, and worked on the largest civil rights class action settlement in New York history. She received her J.D., magna cum laude, from Harvard Law Schooland her B.A. from Brown University. Professor Lahav’s scholarly interests include the political economy of the court system, procedural due process, complex litigation, civil rights and legal history. She serves as an editor on the Mass Tort Litigation Blog.
Alexandra Lahav
Alexandra Lahav
Professor of Law at University of Connecticut
West Hartford, Connecticut
Law Practice
Current
University of Connecticut
Education
Harvard Law School
Summary
Alexandra Lahav is a nationally recognized scholar specializing in class actions, complex multijurisdictional litigation, and mass torts.
Experience
University of Connecticut
Ellen Ash Peters Professor of Law
University of Connecticut
August 2004 – Present (13 years 3 months)
I am a law professor at the University of Connecticut. I've been a visiting professor at Columbia, Harvard and Yale law schools. My book, In Praise of Litigation, was published by Oxford University Press in 2017. My academic work focuses on innovative procedures in mass litigation and empirical studies of the court system and has been cited in treatises and court opinions. I am a frequent speaker at conferences for academics, judges and practitioners. I am currently working on a project about pricing litigation risk.
Skills
complex litigation, civil procedure, mass tort, pharmaceutical litigationExpert ReportsPublic SpeakingCivil LitigationLitigation Risk Analysis
How's this translation?
Great•Has errors
Education
Harvard Law School
Harvard Law School
Doctor of Law (JD)
1995 – 1998
Brown University
Brown University
BA, History
1989 – 1993
Alexandra Lahav in Praise of Litigation
By Editor Filed in News March 1st, 2017 @ 5:40 pm
Over the past couple of decades, there has been a full frontal corporate attack on litigation in the United States.
The attack has been led by the U.S. Chamber of Commerce, the American Tort Reform Association, the Cato Institute’s Walter Olson with his best selling book The Litigation Explosion and Covington & Burling partner Philip Howard with his best selling book The Death of Common Sense: How Law is Suffocating America.
Alexandra Lahav
Alexandra Lahav
On the other side? A decapitated trial lawyer bar and an anemic consumer and public interest movement.
Now comes University of Connecticut Law Professor Alexandra Lahav with a mild corrective – In Praise of Litigation (Oxford University Press).
Lahav makes the point that lawsuits change behavior, provide information to consumers and citizens, promote deliberation, and express society’s views on equality and its most treasured values.
In Praise of Litigation shows how the court system protects our liberties and enables civil society to flourish, and serves as a powerful reminder of why we need to protect people’s ability to use it.
Lawsuits are a way to settle disputes. The concerted corporate attack on litigation has succeeded in limiting lawsuits.
But Lahav sees troubling signs on the horizon.
“I read a wonderful study about China where they don’t have a medical malpractice system,” Lahav told Corporate Crime Reporter in an interview last week. “And there have been many incidents of violence against doctors in China. People feel they have been harmed and they had no recourse. That is not the kind of legal system that we want. We don’t want people to be afraid to enter into contracts because they are unenforceable. We want people to feel that there is a backstop when things go wrong. That’s what the courts are. They are not intended and people do not use them for every single thing that comes up. But when we need them, we need them to be there. And the risk we are seeing with this new legislation is that we are going to eliminate this backstop. And we are going to start seeing people turning to other means of resolving their disputes. And that’s not good for business or for individuals.”
In addition to being a way to settle lawsuits, Lahav sees litigation as a foundation for democracy.
“In order to have a civil society, you have to have trust in one another that we can engage in economic exchange, or walk down the street, or whatever it is, and that people aren’t going to attack us, that we aren’t going to have bad business deals,” Lahav says. “And we have trust because we know that the law will be enforced. Litigation is the way we enforce the law.”
“Also, in order to have a thriving democracy, you need information. Let’s say a government official does something we think is wrong. And there is a cause of action for citizens to sue. We should have the opportunity to do that. We are seeing a lot of lawsuits against the government now. We saw them under Obama and under Bush.”
“To have a day in court against our government before a judge — those are moments when our democracy is actually working, working well. That’s why litigation is good for democracy. Knowing that we have recourse allows us to enter into trust relationships with one another. And knowing that we can hold accountable the government or somebody richer or more powerful than us when they do wrong builds trust. That’s why it promotes democratic values.”
Lahav points out in her book that while the tort reform movement has had some real successes in limiting what can reach the courts, there have been victims too.
Lahav says that while it has become increasingly difficult for ordinary people to enforce their rights, in the grand scale of lawsuits, actually crazy or bogus lawsuits constitute a tiny minority.
Lahav says that in fact, most anecdotes turn out to be misrepresentations of what actually happened and that critics are blinded to the many benefits of lawsuits.
The majority of lawsuits promote equality before the law, transparency, and accountability.
“Our ability to go to court is a sign of our strength as a society and enables us to both participate in and reinforce the rule of law,” Lahav said. “Joining lawsuits gives citizens direct access to judges who can hear their arguments about issues central to our democracy, including the proper extent of police power and the ability of all people to vote. It is at least arguable that lawsuits have helped spur major social changes in arenas like race relations and marriage rights, as well as made products safer and forced wrongdoers to answer for their conduct.”
How is it that the corporate forces won the public relations battle on this issue?
“Tort had a lot to do with it. They were able to tell a few stories about lawsuits that looked ridiculous and used that to convince people that the run of lawsuits are bad.”
“When you tell a student — how would you feel if this happened to you and you couldn’t sue? They would be very upset. But they always think that there must be something wrong with the other person who is suing.”
“The McDonald’s hot coffee story was the most successful story. It was in the national news. It made a big impression on people. It impressed on people that people sue for dumb things. But the reality is that it is very difficult to be a plaintiff in a lawsuit. It’s also difficult to be a defendant.”
“But that said, to be a plaintiff in a tort suit — they can look at all of your medical records, you have to be deposed. If there are psychological records, they are going to look at that. For somebody to expose themselves in that way — usually they have to be seriously wronged. All of the quantitative studies — not just anecdotes — show that people who bring lawsuits are people who were significantly wronged. And most people choose not to pursue litigation at all.”
“The percentage of people in the tort space who are injured compared to those who decide to file — there is a significant gap. Most Americans when they have a problem, they kind of lump it. Same with small business. When they have a contract dispute, they try and work it out. They don’t litigate. It’s very costly. But we need to have this backstop for when we can’t agree.”
“The alternative is people feeling voiceless and turning to other methods of resolving disputes — including violence. You see that in countries where people don’t have a strong court system.”
[For the complete q/a transcript Interview with Alexandra Lahav, see 31 Corporate Crime Reporter 10 (12), February 27, 2017, print edition only.]
In Praise of Litigation
263.51 (Dec. 12, 2016): p138.
Copyright: COPYRIGHT 2016 PWxyz, LLC
http://www.publishersweekly.com/
In Praise of Litigation
Alexandra Lahav. Oxford Univ., $29.95 (208p)
ISBN 978-0-19-938080-0
In the face of the widespread popular perception that lawsuits are inimical to American society, law professor Lahav is persuasive in demonstrating that litigation "is a social good and promotes democracy," even if it is a far from perfect tool. Her contention is bolstered by her well-reasoned analyses that perfectly balance detail with brevity, making this work fully accessible to non-lawyers and readers unversed in the debates about access to justice and tort reform. Lahav divides the societal benefits of litigation into four categories--the core democratic values of "enforcement of the law, transparency through litigation, participation in self-government, and equality before the law"--and devotes a concise chapter to each. She is especially effective at contrasting media depictions of the litigation landscape with reality, and illuminating the hidden agendas of some opponents of the current system. Lahav believes that their real concern "is not litigation per se, but the underlying rights people are seeking to enforce by bringing lawsuits." The book will serve as an effective complement to Erwin Chemerinsky's more technical Closing the Courthouse Doors: How the Supreme Court Made Your Rights Unenforceable. (Feb.)
Source Citation (MLA 8th Edition)
"In Praise of Litigation." Publishers Weekly, 12 Dec. 2016, p. 138. General OneFile, go.galegroup.com/ps/i.do?p=ITOF&sw=w&u=schlager&v=2.1&id=GALE%7CA475225098&it=r&asid=ba5c6204f5ab6ce57a00d400a4c25f73. Accessed 1 Oct. 2017.
Gale Document Number: GALE|A475225098
In Praise of Litigation
by
Alexandra Lahav
general information | review summaries | our review | links | about the author
To purchase In Praise of Litigation
Title: In Praise of Litigation
Author: Alexandra Lahav
Genre: Non-fiction
Written: 2017
Length: 154 pages
Availability: In Praise of Litigation - US
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Our Assessment:
B+ : well-presented overview and arguments
See our review for fuller assessment.
The complete review's Review:
In In Praise of Litigation Alexandra Lahav makes the case that litigation is greatly under-appreciated and under-valued -- "critical to American democracy", even. Headlines about frivolous and ridiculous-sounding lawsuits, outrageous-seeming payouts (and, occasionally, trial- and discovery-costs), and the widespread picture of the United States as a sue-happy nation might lead many to believe that the system in place is too often taken advantage of and that things have gotten out of hand; Lahav argues instead that, while there are some problems that need to be addressed, American-style litigation fundamentally works -- indeed is an essential part of the system -- and that the real danger lies in constraints that have been creeping in, limiting access to and the ambit of litigation.
Each of the four chapters of Lahav's book addresses one of the functions of litigation she identifies:
Litigation helps democracy function in a number of ways: it helps to enforce the law; it fosters transparency by revealing information crucial to individual and public decision-making; it promotes participation in self-government; and it offers a form of social equality by giving litigants equal opportunities to speak and be heard.
Among the most useful aspects of Lahav's book is that it goes beyond the headlines, so to speak: media coverage of civil suits tends to focus on the, in one way or another, bizarre or outrageous -- frivolous-sounding cases, or what seem like excessive pay-outs, for example. Looking at the larger picture, things often look rather different -- including, as she points out, that the headlines (and coverage) about the headline cases often essentially misrepresent what (ultimately) happens: huge judgements are often reduced on appeal, for example, or often all the facts aren't presented in news-summaries -- or what's at issue simply isn't properly framed in media reports.
The numbers she presents remind of the everyday role of most litigation: the vast majority of cases are simple (or not co simple ...) contract disputes, and more than half of filed lawsuits: "involve small amounts of money and are filed in special courts that offer simplified procedures". Medical malpractice suits are, in fact relatively rare -- especially when considering the actual amount of malpractice that occurs -- and many such lawsuits are dropped after discovery, patients and their families more interested in the information -- what happened -- than in financial compensation (but forced to sue in order to obtain that information ...).
A significant take-away from the book is that there isn't enough analysis going on about litigation. Lahav pieces together much of the data, but there is a great deal of information that hasn't been collected or analyzed; given public reliance on the anecdotal, it would be particularly helpful to have hard data in support of it -- or, as seems more likely, to counter many widely held beliefs.
As Lahav points out, without access to the courts -- the ability to sue -- enforcement of the law can become much more hit-or-miss, citizens forced to rely on other branches of government that may be less willing to make sure that the laws that are on the books are actually followed through on. For all the complaints about judicial activism -- judges' decisions over-riding the will of legislators -- the activist role of forcing the authorities to what they're supposed to do -- implement the law -- often remains underappreciated -- but, as Lahav notes, this avenue requires access to the courts -- the ability to sue -- and such access has been diminished in recent years (by, for example, limiting who has standing to sue).
Lahav's point that litigation is useful in spreading information is also a good one. Here, too, actually looking at the numbers helps easily counter some of the criticism against modern-day litigation: it turns out, for example, that discovery costs -- the costs to parties of providing the information demanded by the court and the opposing parties -- are not, in fact outrageous, and tend to closely reflect what's at stake: yes, when it's about huge sums of money, discovery can be very costly -- but discovery costs are almost never a disproportionate cost (it's the lawyers that are the real expense ...). Bringing information out in the open is generally a positive for society, and Lahav convincingly suggests that litigation is a useful means of doing so -- especially given the limitations of other means. Here, too, recent decisions limiting access to information, or complicating obtaining it, -- particularly government claims of secrecy -- are worrisome.
Lahav finds the shift to arbitration -- an unequal and secretive process that has some benefits (it is supposed to be cheaper and quicker) but also drawbacks versus open-court litigation -- and the secretiveness surrounding settlements and settlement amounts -- information that wants to be free, but is less and less so -- problematic. She makes a good case that these are areas ripe for reform, and that there would be real advantages to more information being made freely available (and shared).
Lahav gives numerous examples of how litigation -- and access -- has been limited in recent years, and she argues that many of these changes are to the detriment of society and democracy. Openness -- in terms of access, involvement, and information -- is important, but too often the flaws in litigation (and she does acknowledge that there are many aspects that are in need of reform) are addressed through remedies that undermine these.
In Praise of Litigation makes a good case for the importance of litigation as part of the American democratic system, and is particularly helpful in countering the common knee-jerk reaction of seeing civil suits as a negative, and especially in countering the headline-picture of litigation: from medical malpractice to contract disputes, the reality is rather less sensational (much less outrageous) than the headline-writers (and media in general) suggest.
Presented in very accessible form -- with extensive endnotes for those interested in greater detail -- and succinctly (the text proper only runs to about 150 pages), In Praise of Litigation offers a good overview of a too readily and frequently maligned part of the American (legal) system, with many sensible suggestions as to possible reform (and solid criticism of some of the less helpful trends of recent years).
- M.A.Orthofer, 11 June 2017