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.
