University of Connecticut School of Law professor Alexandra Lahav ()
The idea for “In Praise of Litigation” came to University of Connecticut School of Law professor Alexandra Lahav when she went looking for a book to recommend to her students on the benefits of litigation, and came up empty.
“I just wanted to fill in the hole,” said Lahav, who is the law school’s Ellen Ash Peters Professor of Law, and an expert on civil procedure, complex litigation and mass torts.
In an interview with the Connecticut Law Tribune, Lahav said the book is “a culmination of 10 years of teaching civil procedure to students and observing this national conversation about litigation and formulating what are the benefits of it.”
The perception of a litigation explosion in the 1980s and 1990s was influential in giving litigation a bad reputation, she said. It got people thinking that “all lawsuits are bad for America,” she said. The narrative is, it should be harder to bring a lawsuit, she said. But if that happens, only companies will be able to sue—ones with deep pockets—and that is not necessarily fair, she contends.
There is another side to it, according to Lahav. “That is what I was trying to do with the book,” she said, which was published by the Oxford University Press last February.
“I’m not trying to sugarcoat it or paper over the negatives,” she said. “It’s certainly the case that litigation can be used in undesirable ways.”
However, Lahav writes in her book that judges, legislators and many members of the public don’t see the value of litigation as a “democracy-promoting institution.”
She wrote that litigation is held out to be costly, not efficient, unpredictable, and harmful to business interests.
“We seldom hear how litigation strengthens our society by promoting democratic values,” she wrote. “This book stands against the common tide of criticism and explains the value of the right to a day in court in the 21st century.”
“It’s part of having a civil society,” she said.
Lahav pointed out that even when medical malpractice cases were easier to file, a study in New York found that only 5 percent of those who suffered an adverse event brought a claim.
“Most people don’t want to sue, even if they are injured,” she said, arguing that the threat of lawsuits can make companies and practitioners more careful.
The book has garnered positive reviews, including from David Cole, national legal director of the American Civil Liberties Union, a professor at Georgetown Law Center and author. In reviewing the book, he wrote: “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.”
A review from Publishers Weekly stated, “in the face of the widespread popular perception that lawsuits are inimical to American society … Lahav is persuasive in demonstrating that litigation ‘is a social good and promotes democracy,’ even if it is a far from perfect tool.”
Peter Siegelman, associate dean for research and faculty development at UConn, said the book is serious but also accessible, and argues that the attack on litigation is an assault on rights themselves.
“Unlike rights, therefore, litigation does need a defense, and Professor Lahav offers a careful and powerful one. Put another way, the rights that citizens enjoy are only as good as the processes and procedures that protect those rights, and that’s where litigation comes in.
“Imagine, for example, that your neighbor starts burning garbage in her backyard, attracting flies and emitting noxious odors. Your right to enjoy your house is obviously diminished by this behavior,” Siegelman said.
If the homeowner can’t bring a lawsuit, the “right” to enjoy one’s home is “entirely fictional,” he said.
Siegelman said that opponents of litigation have put forward many reasons to mistrust it. “Of course, with millions of lawsuits filed each year, some of them will be wrongly decided, some will be motivated by illegitimate ends, and some will be too expensive,” he said. “But Professor Lahav eloquently and convincingly shows why the anti-litigation anecdotes give a distorted picture of the empirical reality of litigation.”
Lahav noted in the book that a large share of lawsuits are contract disputes between businesses, “not greedy individuals trying to extract funds from deep pockets.”
In his blog, UConn Law professor James Kwak said it is highly likely that the country suffers from too few lawsuits, not from too many.
He wrote that Lahav’s book is “simply written, because at the end of the day none of this is rocket science.”
“We have three branches of government for a reason. The transformation of the judicial branch into a tool that is primarily accessible to the rich and the powerful is a serious problem in our democratic system of government,” Kwak wrote. “Sure, there are lawsuits that are only intended to harass people or extort settlements from companies that can’t afford millions of dollars in legal fees. But closing the door to the courthouse makes it harder both to enforce the law and to protect people’s rights.”