How Policy Shapes Politics: Rights, Courts, Litigation, and the Struggle over Injury Compensation, Jeb Barnes and Thomas F. Burke
It is easy, and unexceptional, to criticize litigation as a means of policymaking. Much more difficult, and rare, is demonstrating the extent to which litigation differs—for better or worse—from its alternatives.
Through an insightful and lively examination of injury compensation policies, How Policy Shapes Politics attempts such comparison by pitting two contrasting modes of policymaking, termed “adversarial legalism” and “bureaucratic legalism,” against one another. Three case studies selected by the authors illustrate the terms. The hierarchically determined rules and socialized funding of Social Security Disability Insurance provide an example of bureaucratic legalism. The waves of court battles defining the United States’ response to the asbestos crisis illustrate a form of adversarial legalism. The third case study—involving vaccines and the injuries they cause—features policy that fluctuates between the two poles.
By exploring the politics that are implicated over time and across these contrasting policy regimes, How Policy Shapes Politics considers a subtler critique of adversarial legalism—that it comes with too high a political cost—and finds that the much-maligned mode of policymaking fares surprisingly well. The authors’ evidence does not, for exampl
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