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Vol 21 No 9 Sept/Oct 2016

Book of the Month

Cover of Goode on Commercial Law

Goode on Commercial Law

Edited by: Ewan McKendrick
Price: £170.00

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In Praise of Litigation

ISBN13: 9780199380800
To be Published: March 2017
Publisher: Oxford University Press USA
Country of Publication: USA
Format: Hardback
Price: £19.99

America is a famously litigious society. We have more lawyers per capita than anywhere else. Critics say we are unmatched in our willingness to sue, pointing to anecdotes such as the story of the man who sued his drycleaner over a pair of pants or the parents who sued the school when their son broke his leg going down a slide head first. The critics of America's litigation culture are legion, and they often point to ridiculous-sounding lawsuits. A tiny proportion of lawsuits are bogus or crazy (or both), but more often these anecdotes turn out to be misrepresentations of what actually happened. Critics argue that the primary beneficiaries of litigation are attorneys themselves, and that the primary effect of excessive litigiousness is reduced business innovation. The tort reform movement that they champion, which is dedicated to limiting - in some cases eliminating - lawsuits, has become a powerful force in America politics and law. The result is a society where it has become too hard for ordinary people to enforce their rights. Does litigation provide any social benefits at all? Certainly, it is expensive, stressful and time consuming, but Alexandra Lahav contends that the critics have blinded us to its many benefits.

In Praise of Litigation explains what society gains from litigation and why it is ultimately a social good. 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. Joining lawsuits also gives citizens direct access to governmental officials -judges-who can hear their arguments about issues central to our democracy, such as the extent of police power and the ability of all people to vote. Litigation also promotes equality before the law, transparency, and accountability. And 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. In her defense of the system, Lahav does not ignore the many costs that litigation imposes, and proposes a number of sensible reforms that improve the value of litigation. Many of the proposals that have been adopted and are currently on the table are spurious because they solve problems that do not exist or just make it harder for citizens to defend their rights and to enforce the law. Lahav's spirited defense of litigation is sure to draw critics, but her sophisticated and balanced approach to the topic will make it impossible to dismiss.