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20200705 – The Litigation Nation

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MAIN IDEA:

The main idea of this book is to demonstrate that American Exceptionalism very much expresses itself in the way Americans use litigation not only to settle disputes between themselves, but also move ahead legal and moral advancement of the country and demonstrate history of this process moving from defamation of neighbors and witch-hunt of early America all the way to contemporary successful class action lawsuit industry.

DETAILS:

Introduction: Litigation and Honor
This starts with one of the first sexual harassment cases from which author using multiple other data infers that progress of American society moves from one litigation case to another, whether it refers to civil rights, consumer protection, and what not. Author also provides brief review of American legal structure to demonstrate how it all works and some historical data on number of lawyers to demonstrate consistency of America as litigation country throughout the history.

Part I: Litigation Defines a Nation
Here author states that litigation was prominently present in American life from the very beginning and it is to significant extent defined character of America as a nation.

  1. Defamation

The first chapter tracks an explosion of defamation suits in the seventeenth-century colonies, wherein servants, mistresses, and masters who had in England known and more or less accepted their place in the social order, in the New World accused one another of all manner of mischief. East Hampton Township on Long Island was one focal point of this miniature status uprising. The ruckus would lead to the first colonial witchcraft scare. The coda shows how defamation of public figures today demonstrated changing notions of right and wrong.

  • Land-Grabbing and Money-Grubbing

The second chapter follows a major shift (phase change) in the way the American colonists did business, focusing in particular on land disputes in eighteenth-century New Jersey. Real estate transactions whose principals did not know one another partially supplanted older customs of face-to-face exchanges of plots. The former involved documents that ordinary people did not understand. Plaintiff and defendant had to hire trained lawyers to carry on the litigation. A coda returns to litigation over mortgages, descendants of lawsuits over title.

  • Slavery and Honor

The third chapter turns to slave sales and estate disputes in the ante-bellum South, tracing a striking rise in suits for fraudulent sales and contested wills. This spike in litigation reflected the southern slave society’s shift from vigorous self-confidence to defensive anxiety. The courts were a cockpit of these often bitterly contested cases. The coda returns to the issue of reparations for slavery.

  • Free Labor?

Chapter 4 turns to the rise of free labor, focusing on suits for back pay, the appearance of craft unions, and damage awards for accidents. It closes with the most important of the modern version of these lawsuits—guest worker suits.

Part II: Litigation Defends Democracy
In this part author is moving to America after Civil war and all the way until present, discussing various types of litigation from business and matrimonial disputes between individuals to civil rights and tort litigation between large groups, corporations, and governments.

  • Stock Swindles and Swindlers

In the Gilded Age, railroads were the leading edge of these new kinds of corporate entities, and the creation of the Northern Securities trust became the nation’s great test of the tactics of the owners. The coda returns to the Regional Rail Reorganization Act Cases (1974) and a foreboding omen of corporate malfeasance for which the shareholders paid, the Enron scandal.

  • Divorce

Chapter 6 follows a rise in divorce suits in the first years of the twentieth century, as changing views of marriage and gender roles worked themselves out in the courts. Among the most reform minded of all the states’ tribunals, the New York courts experienced this shift in attitudes in telling fashion. New York was also the origin of U.S. v. Windsor (2013), the case striking down the Defense of Marriage Act (1996).

  • Civil Rights and Wrongs

Chapter 7 turns to the civil rights suits of the second half of the twentieth century, surveying how a gradual change in race relations spurred litigation over school segregation and public accommodations. The key cases are Briggs v. Elliot (1953) and Bell v. Maryland (1963).

  • Product Liability and Mass Tort Litigation

The final chapter examines an explosion in consumer tort cases, showing how the world of consumption habits in everyday life had become at the same time more faceless and more deeply personal. Called mass products liability, these involved some of the wealthiest corporations and thousands of the most ordinary Americans. The Dalkon Shield class action suit of the 1970s and 1980s captured all of these elements.

Conclusion: The Value of Litigation in America

A conclusion returns us to the themes of honor and phase change in values, featuring Boy Scouts of America v. Dale (2000).

MY TAKE ON IT:

This book demonstrates, and pretty convincingly at that, that America as a country of litigation is not a recent phenomenon, but rather an inherent feature of American culture. From my point of view, it is actually a pretty good feature, especially comparing with other cultures when disputes are resolved either by authoritarian rulers or by violent struggles. However, as any other goods thing when there is too much of this it is getting to be a lot less good. In case of litigation, its current level in America went way beyond reasonable levels. It created the whole industry with some 3 million lawyers busy with making money by preventing businesses from working effectively, spouses separating peacefully, and extracting money from public funds for imaginary civil rights violations with active cooperation from “public servants” who are eager to help and share in proceeds. In short, peaceful character of dispute resolution became deleterious due to massive instigating of disputes to generate profits for legal industry. Moreover, top level members of judicial branch routinely interfere with political process subverting democracy and, by doing so, paving way for suppression of resolution of many very important disputes that could potentially explode the whole system. I think that this situation calls for legal reforms, very big and very soon for such explosion to be prevented.


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