How Litigation Advances Our Democracy
Jocelyn D. Larkin, Of Counsel, Impact Fund
As the election nears, democracy is at the forefront of all of our minds. As citizens of a still vibrant democracy, we can vote for our favorite candidates, speak out about the issues we care about, and even run for office. We can also litigate.
You might wonder what litigation has to do with democracy. In her brilliant book, In Praise of Litigation, Professor Alexandra Lahav explains exactly that. She persuasively argues that litigation advances important democratic values and facilitates self-government. Put simply, litigation allows an ordinary person—regardless of social status—to bring a multi-national corporation to court to account for breaking the law and causing injury. Ordinary citizens, acting as jurors, in turn hold the power to weigh the evidence and determine whether the law has been broken. In this way, Lahav observes, litigation both reinforces social equality and ensures that no person in our democracy is above the law.
While everyone remembers Erin Brockovich, there are myriad examples of individuals who have found the courage to take a powerful wrongdoer to court and won (or settled very favorably). This fall, a jury in Washington state awarded UPS driver Tahvio Gratton $237 million as a result of pervasive race discrimination in the workplace. Gratton was repeatedly called “boy” by his supervisor, given less desirable routes, and unfairly fired after speaking out. Shannon O’Conner brought a class action lawsuit for herself and thousands of other female students and former students who had been sexually assaulted over decades by USC gynecologist George Tyndall. Not only did the case recover $215 million in compensation for the victims and hold the wrongdoer accountable, O’Conner ensured that the university implemented institutional reform to prevent future injuries. Finally, the courageous youth plaintiffs in Juliana v. United States have sought to hold the U.S. Government accountable for its failure to address the effects of climate change on their futures. Indeed, the Impact Fund created the Class Action Hall of Fame to honor litigation heroes, like Shannon O’Conner.
In her book, Professor Lahav explains how litigation is an essential part of a functioning democracy.
But the benefits of litigation to our democracy go beyond these stories of leveling the playing field and enforcing the law. Lahav observed that a lawsuit provides “a forum for reasoned discussion of difficult issues” based on facts, rather than propaganda or opinion. As we are daily bombarded with misinformation from so many fronts, decisions grounded in evidence that has been subject to the crucible of cross-examination is a balm to those who value the sanctity of truth.
One of my favorite examples of litigation elevating fact over bias and bombast was the constitutional challenge to California’s Proposition 8, a 2010 initiative that banned same-sex marriage. In court, the proponents of the initiative bore the burden of presenting a rational basis for the ban. In advocating for the passage of the initiative, they had claimed, among other malarky, that marriage was solely for the purpose of heterosexual procreation and that children were harmed by same-sex parenting. But, brought to court, they had no facts, no experts, no science to back up their homophobic rhetoric. By contrast, the opponents presented a tour-de-force evidentiary record in court, supported by fully-qualified experts who relied on peer-reviewed science. The court, after careful deliberation, found the initiative unconstitutional. The courtroom provided the forum for reasoned debate of a matter of extraordinary importance to public policy.
Finally, as Professor Lahav explains, through the discovery process, a lawsuit can “foster transparency by revealing information crucial to individual and public decision-making.” She highlights cases involving defective automobile airbags, bacteria-laced juice, and police stop-and-frisk policies — dangerous conditions and practices that the public learned of only through discovery gained through litigation. But there are so many more — the dangers of opioid drugs, e-cigarettes, talcum powder, and asbestos have all been exposed through litigation. As consumers and citizens, we can better exercise our rights, protect our health, and spend our money if we learn who can and who can not be trusted in our society.
Our American litigation system is, of course, far from perfect and much of Lahav’s book explores those problems. She also illuminates the ongoing efforts by powerful interests, uncomfortable with public accountability resulting from litigation, to curtail access to the courts. For this reason, it is important that we exercise our right to vote for those who understand the importance of litigation in sustaining the values underlying our democracy.