Copyright (c) 2009 All rights reserved. http://works.bepress.com/alexandra_lahav Recent documents in Alexandra D. Lahav en-us Fri, 30 Oct 2009 09:41:01 PDT 3600 http://works.bepress.com/alexandra_lahav/5 http://works.bepress.com/alexandra_lahav/5 Tue, 08 Sep 2009 13:06:08 PDT This Article considers a question rarely addressed: what is the role of the lawyer in a manifestly unjust procedural regime? Many excellent studies have considered the role of the judge in unjust regimes, but the lawyer's role has been largely ignored. This Article draws on two case studies: that of lawyers representing civil rights leaders during protests in Birmingham, Alabama in 1963 and that of lawyers representing detainees facing military commission proceedings in Guantánamo Bay, Cuba. These portraits illuminate the role of the lawyer in a procedurally unjust tribunal operating within a larger liberal legal regime such as our own. The purpose of the Article is to paint a landscape of lawyer resistance to procedural injustice that can be used as a basis for further inquiry. The Article considers hard questions about lawyer participation in unjust tribunals such as whether lawyers who participate in unjust tribunals are complicit in injustice and what lawyers can do in the face of an unjust procedural regime. It presents a new way of understanding the forms of lawyer resistance to injustice. The Article demonstrates that complicity and resistance are not on opposite poles of human behavior within organizational systems. Rather, there is a dualistic interplay between complicity and resistance. Acts that appear to be resistance can be perceived as complicit, and acts that appear to be complicit can result in powerful forms of resistance. The Article also explores some questions raised by this analysis, such as what are the lawyer's responsibilities to society and to his or her client and whether lawyers can know when a tribunal is so unjust as to merit resistance. It concludes by considering avenues for further research. Alexandra D. Lahav Professional Ethics http://works.bepress.com/alexandra_lahav/4 http://works.bepress.com/alexandra_lahav/4 Thu, 15 May 2008 12:20:10 PDT This essay, written for the Tulane Law Review Symposium on the Problem of Multidistrict Litigation, argues that the focus of proceduralists on centralization as a solution to the problems posed by modern litigation is misplaced. It is time to refocus on the social value of the multiple centers of authority that jurisdictional redundancy permits. This essay presents the case for multi-centered litigation with particular focus on the potential uses of the Multidistrict Litigation Act to realize pluralist values. The descriptive claim put forward by the essay is that jurisdictional redundancy is imbedded in our federalist system and our preference for adversarial adjudication. The normative claim is that judges and scholars should take more seriously the social benefits of pluralism offered by jurisdictional redundancy. In furtherance of this goal, I suggest three factors that judges and policy-makers consider in determining the level of centralization appropriate in a given case: (i) the extent and nature of underlying substantive disagreement, (ii) the costs of inconsistency, and (iii) the role of political power in the litigation. The question judges, legislators and scholars should ask is not only how much pluralism our system of adjudication can tolerate, but also how much uniformity we should expect in a pluralist society. Alexandra D. Lahav Complex Litigation http://works.bepress.com/alexandra_lahav/3 http://works.bepress.com/alexandra_lahav/3 Mon, 01 Oct 2007 13:38:23 PDT At the core of the controversy over mass torts lies a fundamental question: what justifies collective litigation? Scholars considering this question make one of two arguments. They either argue that collective justice must be limited by a process-based right to participation based on autonomy values, or they argue that collective justice is justified by utilitarian values and dismiss participation altogether. This Article presents a third alternative: that the democratic nature of the jury trial validates "group typical" justice, a subset of collective justice. The Article re-envisions the trial as a democratic enterprise, rather than solely an atomistic one. An innovative procedure that illustrates this democratic justification is the bellwether trial. In a bellwether trial procedure a random sample of cases from a mass tort is tried to a jury and the results extrapolated to the remainder of the cases. The practice of bellwether trials prompts us to think more deeply about the political economy of modern adjudication and the possibility of adapting our eighteenth-century common law institutions to the needs of twenty-first century society. Alexandra D. Lahav Complex Litigation http://works.bepress.com/alexandra_lahav/1 http://works.bepress.com/alexandra_lahav/1 Wed, 14 Mar 2007 14:13:04 PDT This Article describes how the power to regulate tortfeasors has been transferred from the courts to private parties. It situates court resistance to administrative resolution of mass torts in the historical debate over bureaucracy in government. Instead of privatizing mass tort settlements, courts should take an active role in administering the resolution of mass torts. Alexandra D. Lahav Complex Litigation