Book Review

• Published date: 01 December 2018
• Author: CHOO Han Teck LLB (Hons) (National University of Singapore), LLM (Cambridge); Judge of the Supreme Court of Singapore.
• Citation: (2018) 30 SAcLJ 417
• Date: 01 December 2018

1 Lawyers are familiar with the saying “a good settlement is better than a good law suit”. In this book, Lahav makes the argument that a law suit can be a good instrument in the promotion of democracy. She is referring to an American law suit in relation to American democracy, but some of her points are universal to litigation in an adversarial system of litigation. She states her thesis as follows:1

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; it offers a form of social equality by giving litigants equal opportunities to speak and be heard … [emphasis in original]

She explains that her motivation in writing this book arose from the “increasing limitations on the right to sue” and by “arguments that misunderstand or ignore the democratic purpose of litigation”.2 When considering her thesis, it is best to remember the differences between a parliamentary style democracy and the federal style of the US. As Marcel Berlins and Clare Dyer pointed out, in an average year, the UK Parliament enacts 45 to 60 new Acts of Parliament.3 The American federal system operates within 50 states, each with its own legislature and court system, and its form of judicial review is different from that of the UK.

2 Lahav cites the case in which four disabled people sued Taco Bell for not having adequate facilities in their car parks for handicapped people. The suit was settled in 2014 but had forced Taco Bell to agree to complying with the standards set under the Americans with Disabilities Act4 (“ADA”). The suit also led to other fast food restaurants to take similar action to comply with the ADA. Noting that using litigation as a means of enforcing the law often gives the impression of “lawyer

overreach or frivolous lawsuits”, Lahav believes that “litigation affirms the value of autonomy and human dignity”. She also believes in the utility of litigation when it comes to “answerability and accountability”, and acts as a “deterrence … to prevent similar harms … A single lawsuit can promote all three goals”.5

3 After examining the types of regulating the enforcement of law, namely, by administrative agency, government lawsuits, and private litigation, Lahav examines the question, “[h]ow effective is litigation”?6 In her discussion, she examines three examples. The first is the case of Brown v Board of Education of Topeka, Kansas.7 The second concerned the suit against another fast food chain, Jack in the Box in respect of an E coli outbreak, and the third was the suit against General Motors, by the family of a girl who was killed when the airbags did not work.8 She ends her discussion with a reference to medical malpractice suits, pointing to the ways they deter misconduct. First, the data collected by hospitals and practitioners are used to improve practices. Those data include lawsuits.9 Secondly, she contends that legislative curbs on litigation have an effect on patient safety: “[i]f tort reforms do decrease litigation, and litigation has a deterrent effect, one would expect that as tort reforms took effect the rates of injury would rise”.10 Thirdly, she challenges the claims that “the main argument against medical malpractice litigation has been the contention that there are too many frivolous claims. But the evidence does not support this assertion”.11 Fourthly, she also refutes the claims that medical malpractice suits are unfair because the claimants are paid even when the doctors were not negligent.12 Finally, in addressing the effect of the cost and expense of medical litigation, Lahav refers to a Harvard study that shows that “most of the costs incurred were for valid claims”.13

4 In the next chapter, Lahav discusses the power of information through litigation. In the discovery process in the 1996 case in which the victims of E coli infections sued a fruit juice company, Odwalla, the discovery process uncovered a letter from the US Army to Odwalla “revealing that army inspectors had found that the juice manufacturer's ‘plant sanitation program [did] not adequately assure product wholesomeness’ and rejecting the company's application to provide juice

for US Soldiers”.14 Although the Odwalla case did not...