Vol. 13 No. 1 (January 2003)
Lawyers, Lawsuits, and Legal Rights: The Battle Over Litigation in American Society by Thomas F. Burke. Berkeley: University of California Press, 2002. 267 pp. Cloth $29.95. ISBN: 0-520-22727-1.
Reviewed by Laura Hatcher, Department of Political Science, Northern Illinois University. Email: firstname.lastname@example.org
Thomas Burke has brought us an insightful and provocative discussion of U.S. constitutionalism and its relationship to antilitigation politics. Thoroughly researched and clearly written, the book should reach a fairly wide audience including scholars, policymakers and the informed public. Without a doubt, scholars interested in law and social change, interest group litigation and constitutive theory of law will find this book informative as well as a basis for advancing our engagement with these issues and theories. Burke builds on literature developed over the last twenty-five years in various circles of the law and society community. Combining the literatures of legal consciousness with Robert Kagan’s insights concerning the fundamental structures of government as they relate and encourage adversarial legalism, he develops what he refers to as “the constitutional theory of litigious policymaking” (Burke, p. 13).
At first glance, the book appears to be an attempt at understanding why reform movements aimed at curtailing litigation are so often unsuccessful in the U.S. However, by the end of the book, Burke has laid the groundwork for suggesting that the debate concerning litigation reform in the U.S. should be raised to a level where discussion of litigation’s role in society is the focal point. This, he argues, would shift our focus away from merely debating whether there has been a litigation explosion or whether tort reform—or such other litigation reforms—are necessary. These debates, he says, have too narrowly focused our attention so that we miss the broader implications of our policies. For example, discussions of health care reform centered on malpractice torts miss the important insight from research indicating that access to health care reduces the number of lawsuits since those with access are less likely to sue than those without it. Burke’s point is that, by consideration of insurance and welfare policy influences on litigation—rather than focusing exclusively on litigation’s effects on policy implementation—we may find new solutions to our problems.
Burke’s notion is that the constitutional system of the United States has encouraged policies that create many possibilities for litigation. He argues that the mode of adversarial legalism, in which a highly decentralized system processes formalized disputes and in which rules face continuous contestation, makes the litigation option attractive to activists concerned with ensuring that their political goals are met. His point here, ultimately, is to explain why it is that reformers seeking alternatives to litigation generally find it extremely difficult; and his answer, in large part, is that the structure of the American constitutional system produces incentives for activists, interest groups and policymakers to encourage litigious policies. He comes to this conclusion through an examination of three case studies of anti-litigation movements, and an analysis of their successes and failures.
In order to give some analytical bite to his discussion, Burke categorizes anti-litigation efforts into two broad categories: discouragement policies and replacement policies. While discouragement policies decrease the amount of litigation in some way—for example, by making litigation less rewarding with caps on damage awards—they cannot stop litigation altogether. The tort reform movement is one example of an anti-litigation effort that fits this category. However, as Burke points out, his work focuses on what he refers to as replacement reforms, which aim at replacing some category of litigation with an alternative mechanism. A case in point, the September 11th Victim Compensation Fund, says Burke, was designed to provide victims of the 9/11 disaster with a means of receiving compensation that would not require litigation. To focus on replacement policies provides a lens to assess the various ways in which policymakers choose litigious policies even when they are aware of and have considered alternative mechanisms. Indeed, as Burke himself notes, the politics of replacement policies do provide us with important insights concerning implementation that are often missed when studying movements such as tort reform. Perhaps, most importantly, it highlights the very real differences that do exist among various anti-litigation efforts.
Burke’s concept of “litigious” policies requires some elaboration here. At one point in a note, Burke acknowledges that his use of “litigious” is somewhat unusual. Rather than using it to describe individuals, it refers to policies that provide greater entrée for litigation by various actors. He also acknowledges that it is a term usually used as a criticism. He does not, however, clarify whether the normative nuances of “litigious” should be read into his book, and applied to policies. This would make the book an indictment of the policies themselves, and by inference, an indictment of the constitutional system giving them shape. However, by the end of the book, he clearly demonstrates that there may be policy options we aren’t investigating deeply enough because of our reliance upon litigious policies. It is not so much an indictment of the current system as a suggestion that it could be improved. He argues for a greater awareness of the place litigious policies have in our society’s structure in order to encourage us to find other possibilities.
Yet, it is in this final set of arguments that the book could be a bit stronger. In his conclusions, Burke argues that sociolegal scholars need to pay more attention to the role of litigation in society. At first glance, this claim was a bit confusing. Sociolegal scholars have long been fascinated by precisely this question, and the rich body of scholarship produced by authors such as John Brigham, Christine Harrington, Michael McCann, Austin Sarat and William Felstiner, Helena Silverstein, Mark Tushnet and many others have brought remarkable portraits of law’s role in society, particularly with attention to the work of lawyers and activists in litigation efforts. When we add to this body of work other scholarship also interested in law’s constitutive role by historical institutionalists, there is in fact a great deal of discussion by sociolegal scholars of the litigation process in society. I think, however, Burke’s particular focus on the concept of litigation (rather than on law more generally or on particular mobilizations) as a cultural phenomenon is, perhaps, what he means when he says that we have not paid close enough attention to it. And in this he may be correct: litigation itself has great symbolic power in the U.S., and a deeper engagement with its role in structuring society and public policies would most likely yield new possibilities for furthering the debates with which Burke is concerned.
Overall, this is a very provocative and strong contribution to the discussion of law’s constitutive role in society, and it is well worth reading. It provides opportunities for engagement on many levels and, because it is written with such clarity, will be useful in some advanced coursework for both undergraduate and graduate students, in addition to being an important scholarly contribution.
Brigham, John. 1996. THE CONSTITUTION OF INTERESTS: BEYOND THE POLITICS OF RIGHTS. New York: New York University Press.
Harrington, Christine. 1985. SHADOW JUSTICE: THE IDEOLOGY AND INSTITUTIONALIZATION OF ALTERNATIVES TO COURT. Westport, Conn.: Greenwood Press.
McCann, Michael. 1994. RIGHTS AT WORK: PAY EQUITY REFORM AND THE POLITICS OF LEGAL MOBILIZATION. Chicago, IL: University of Chicago Press.
Sarat, Austin and William Felstiner. 1995. DIVORCE LAWYERS AND THEIR CLIENTS: POWER AND MEANING IN THE LEGAL PROCESS. New York: Oxford University Press.
Silverstein, Helena. 1996. UNLEASHING RIGHTS: LAW, MEANING AND THE ANIMAL RIGHTS MOVEMENT. Ann Arbor: University of Michigan Press.
Tushnet, Mark. 1987. THE NAACP’S LEGAL STRATEGY AGAINST SEGREGATED EDUCATION, 1925-1950. Chapel Hill: University of North Carolina Press.
Copyright 2003 by the author, Laura Hatcher.