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the Complete Review
the complete review - legal

     

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
In Praise of Litigation - UK
In Praise of Litigation - Canada

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Our Assessment:

B+ : well-presented overview and arguments

See our review for fuller assessment.




Review Summaries
Source Rating Date Reviewer
Publishers Weekly . 12/12/2016 .


  From the Reviews:
  • "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. (...) 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." - Publishers Weekly

Please note that these ratings solely represent the complete review's biased interpretation and subjective opinion of the actual reviews and do not claim to accurately reflect or represent the views of the reviewers. Similarly the illustrative quotes chosen here are merely those the complete review subjectively believes represent the tenor and judgment of the review as a whole. We acknowledge (and remind and warn you) that they may, in fact, be entirely unrepresentative of the actual reviews by any other measure.

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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

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Links:

In Praise of Litigation: Reviews: Alexandra Lahav: Other books of interest under review:
  • See Index of Law-related books

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About the Author:

       Alexandra Lahav teaches at the University of Connecticut School of Law.

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© 2017 the complete review

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