Vol. 27 No. 9 (December 2017) pp. 147-149HOW POLICY SHAPES POLITICS: RIGHTS, COURTS, LITIGATION, AND THE STRUGGLE OVER INJURY COMPENSATION, by Jeb Barnes and Thomas F. Burke. New York: Oxford University Press, 2015. pp. 272. Cloth $41.95. ISBN: 978-0-19-975611-7.
Reviewed by Herbert M. Kritzer, University of Minnesota Law School. Email: kritzer@umn.edu.
In HOW POLICY SHAPES POLITICS, Jeb Barnes and Thomas Burke extend work that one or the other, or both, have done on the politics surrounding disability, vaccine injury compensation, and asbestos litigation (Burke 2002, 1997; Barnes 2007, 2008, 2011; Barnes and Burke 2012). Their specific goal is to understand how the politics concerning a specific policy varies depending on whether the policy is structured around what Robert Kagan (1991, 2001) labeled adversarial legalism or bureaucratic legalism. That is, they want to “assess how the design of public policy—around courts and litigation on one hand, or through agency implementation on the other—shapes politics” (p. 2). They choose to focus specifically on policies dealing with injury compensation because that area “includes a vast array of policies of diverse design, some based on litigation, others on regulation and social insurance” (p. 4). Social security disability insurance (SSDI), the vaccine injury compensation (VIC) program, and compensation for asbestos-related injury (ARI) represent a range of program design that allows them to assess the impact of design on the politics surrounding specific choices in design.
To frame their analysis, Barnes and Burke advance one general hypothesis and several subsidiary hypotheses. The primary hypothesis is that selecting a litigation model over a bureaucratic model leads to the individualization of conflict and “generates a more divisive, fractious politics” (p. 5). More specifically, they consider “four serious charges against adversarial legalism: (1) it crowds out other forms of political action, especially lobbying for legislative change, (2) it is particularly ‘sticky’ and path-dependent, potentially locking governments into bad policies, (3) it creates polarizing backlashes, and (4) it individualizes interests, thus undermining social solidarity” (p. 15). To test these hypotheses, the authors conduct a general analysis of congressional hearings dealing with injury compensation and then report in-depth studies of the politics surrounding each of their three cases. The analysis of congressional hearing is contained in one chapter with in-depth analyses of the case studies, which each receive its own chapter. Based on their analyses across these four chapters, they find solid support only for the last of four “charges.”
Chapter 2 assesses whether congressional hearings differ depending on the type of legalism upon which an injury policy is based. Specifically, are there differences in the kinds of the witnesses and/or the diversity of witnesses testifying at hearings concerning the programs employing the two types of legalism and are there differences in the amount of conflict reflected in the hearings? For this analysis, the authors do not limit themselves to the three areas that are the focus of their case studies; rather they include all or most policy areas dealing with injury compensation. They group witnesses into five categories: business interests, claimants and their representatives, governmental officials, experts, and others. The analysis employs information on hearings covering a 40-year period starting in 1971. The authors apply a variety of methods and show that there are differences in the number and variety of witnesses. Moreover, they find more conflict at hearings involving programs operating in the style of adversarial legalism compared to hearings focused on programs operating employing bureaucratic legalism. These differences hold up across administrations and after introducing various control variables. It would have been helpful if the authors had included a table listing all the programs that formed the basis of the analysis along with how each was classified (bureaucratic or adversarial) [*148] and the number of hearings for each of programs.
Chapters 3, 4, and 5 are the case studies of the political debates surrounding the three systems for injury compensation programs. In each of these chapters, the authors trace the history of the political conflict surrounding the system under discussion. For SSDI and the VIC their discussions include debates over initiating the program and how politics have played out since the program began operating. SSDI is their example of bureaucratic legalism, ARI is the example of adversarial legalism, and the VIC is a system created to move from an adversarial system to a bureaucratic system. In the chapter on SSDI, the authors also provide a discussion of the Americans with Disabilities Act (ADA) as an additional contrasting case; although ADA is not an injury compensation program, it represents a very different approach to disability and creates some tension with SSDI. The discussions of SSDI and VIC start with the politics surrounding the programs’ creation, and then describe how the various interests interacted and the compromises that were needed to pass the legislation creating the programs. The analysis of those two programs proceeds to trace the issues that arose in efforts to expand each of the programs, to cutback the programs by changing who was covered, and to deal with other challenges that arose once the programs were in operation (e.g., the alleged link between thimerosal, at one time used as a preservative in some vaccines, and autism). The chapter on ARI traces both the unsuccessful efforts to fashion legislative reforms that would have created a more bureaucratic approach for those claiming ARI, and describes the development through the courts, particularly the bankruptcy courts, of bureaucratic-like programs in the forms of various trusts created to pay compensation. All three chapters draw on a combination or primary research and secondary sources, they are highly detailed, and directed at assessing the authors’ hypotheses; each chapter ends with an assessment of what the chapter’s analysis means for those hypotheses.
In the final chapter Barnes and Burke summarize the results of their case studies and assess whether those studies support the core hypotheses. As noted above, they conclude that there are limited differences between the two types of legalism in terms of the politics they produce. The one hypothesis for which they do find support is the fourth one: the politics surrounding ARI policy does reflect individualized interests to a greater degree than is true for either SSDI or VIC. Regarding the hypothesis that adversarial legalism produces path dependency, the authors find, if anything, greater path dependency in SSDI and VIC than in ARI. They find no evidence of a polarizing backlash in any of the three programs, nor is there evidence that political action (e.g., in support of legislative change) other than litigation has been crowded out in ARI, although it is true that the efforts to fashion legislation has, to date, failed to produce a bill that has become law. The authors do note that both ARI and VIC started as highly decentralized litigation, moving to more centralized consideration; in contrast, SSDI was a federal program from the start. The nature of interest group activity was different for SSDI, particularly after the program came into operation, then was (and is) true for the other two programs (p. 194). They also note that bureaucratic legalism tends to deemphasize issues of blame (p. 198) but that is arguably true for any “no-fault” type program. The authors do not discuss the fact that what may remain is the issue of causation; that is, can the injury be attributed in a way that it is compensable under the program. This issue arises in any no-fault program, such as workers’ compensation or no-fault automobile accident compensation systems; for example, can the back injury be blamed on something that happened at work, or on the auto accident, or was the injury caused by something else? The bigger question here may be how the program is funded; that is, is the compensation paid through a system of taxation (either general in the case of SSDI or targeted in the case of VIC), or is it paid in a way that it comes directly from a party (or the party’s insurer) responsible in some way for the injury?
These last comments suggest some of the questions I have about the findings and conclusions of this book. I am not able to [*149] challenge the authors’ analysis of the specific programs. What gives me some pause is the validity of the generalizations Barnes and Burke want to make. First, to what degree is the key factor differentiating injury compensation programs the structure of decision-making (adversarial vs. bureaucratic), or is the key factor from whose pocket is the compensation coming? Take, for example, a non-injury compensation program: unemployment compensation (UC). UC is a bureaucratic program, and most UC claims are uncontroversial (arguably also true in many types of auto accident cases). However, the amounts that an employer pays into compensation funds via taxation is determined in part by the volume of claims made by former employees. The result is that employers do contest claims on a regular basis if the employer believes there is some basis for denying the claim. Another example of a bureaucratic program that can involve significant conflict is workers compensation (WC), and this conflict arises because an employer’s claims history does affect the insurance premiums the employer must pay. Both UC and WC are state-level programs, and the politics that play out in those programs happens at the state level rather than federal level. However, I do not want to push the “who pays” question too far because there are government funded welfare programs in which, unlike SSDI where the government does not send a representative to contest the claimant’s eligibility. In addition to that, there are welfare programs where government representatives do defend denials of payments and/or eligibility in hearings before administrative law judges.
Are Barnes and Burke correct in their conclusion that there are fewer differences in the politics surrounding the two types of policy implementation (bureaucratic and adversarial) than may often be supposed? Would their findings have been the same if they were contrasting regulatory policies rather than injury compensation policies? I suspect that part of the reason they chose injury compensation policies was that they were able to identify federal compensation programs with contrasting implementation models. Whether one could find regulatory policies using contrasting models is unclear, but it was from working in the field of regulation that led Kagan to devise his contrasting forms of legalism.
REFERENCES:
Barnes, Jeb. 2007. "Rethinking the Landscape of Tort Reform: Legislative Inertia and Court-Based Tort Reform in the Case of Asbestos." JUSTICE SYSTEM JOURNAL 28 (2):157-81.
——. 2008. "Courts and the Puzzle of Institutional Stability and Change: Administrative Drift and Judicial Innovation in the Case of Asbestos." POLITICAL RESEARCH QUARTERLY 61 (4):636-48.
——. 2011. DUST-UP: ASBESTOS LITIGATION AND THE FAILURE OF COMMON SENSE. Washington, DC: Georgetown University Press.
Barnes, Jeb, and Thomas F. Burke. 2012. "Making Way: Legal Mobilization, Organizational Response, and Wheelchair Access." LAW & SOCIETY REVIEW 46 (1):167-98.
Burke, Thomas F. 1997. "On the Rights Track: The Americans with Disabilities Act." In COMPARATIVE DISADVANTAGES? SOCIAL REGULATIONS AND THE GLOBAL HARMONY, ed. P. Nivola. Washington, DC: Brookings Institution Press.
——. 2002. LAWYERS, LAWSUITS, AND LEGAL RIGHTS: THE BATTLE OVER LITIGATION IN AMERICAN SOCIETY. Berkeley: University of California Press.
Kagan, Robert A. 1991. "Adversarial Legalism and American Government." JOURNAL OF POLICY ANALYSIS AND MANAGEMENT 10:309.
——. 2001. ADVERSARIAL LEGALISM: THE AMERICAN WAY OF LAW. Cambridge, MA: Harvard University Press.
©Copyright by the author, Herbert M. Kritzer.
