Political Advances amid Litigational Defeats: The Indirect Effects of Crimtort Causes
William Haltom and Michael McCann
Western Political Science Association 2011
Political Advances amid Litigational Defeats:
The Indirect Effects of Crimtort Causes[1]
William Haltom / Michael McCannUniversity of Puget Sound / University of Washington, Seattle
Abstract
Assessments of reform through civil litigation have tended to define winning and losing as well as costs and benefits by immediate, direct, calculable results and to overlook gradual, indirect, subtle ramifications. Building on our previous work on litigation against Big Tobacco and against the makers and marketers of firearms, we assay advantages activists and advocates have obtained via criminalization of companies, especially through the use of a hybridization of civil and criminal tactics and strategies called “crimtorts.” We produce evidence of varying criminalization in all four sorts of lawsuits― tobacco, firearms, implant, and food suits―in newspaper coverage and thus establish that intangible advantages may issue even from Quixotic litigation. However, we also reveal that criminalization is achieved to varying degrees in suits against makers and marketers of breast implants and fast, fatty, and junk food. Coverage in national newspapers reveals, in sum, both considerable potential of and considerable constraints on reform or regulation through civil suits.
Prepared for presentation to the
Western Political Science Association
San Antonio TX
2011
In this paper we argue that those who assess litigation as a means by which to regulate corporations or to alter policies should avoid at least two temptations. The first temptation is “Oversimplified Scorekeeping” – a tendency to tote immediate costs and benefits of verdicts, judgments, and settlements but to overlook the indirect ramifications of litigation and the cultural consequences of alternatives to ordinary politicking. In previous papers for the WPSA, we have presented evidence that activists have succeeded in deploying litigation to re-frame and thereby to defame corporations that manufacture and market tobacco products and firearms (McCann, Haltom, and Fisher 2009; Haltom and McCann 2010). Signal successes against Big Tobacco and some PR victories over manufacturers and marketers of firearms may have tempted activists and litigators to a second misstep, “Oversimplified Emulation.” Litigators and activists easily overestimate the capacity of litigation to re-frame issues and contests even as they underestimate obstacles to successful re-framing. We show that manufacture or marketing of silicone products and of fast, fatty, or junk foods[2] have not been maligned by litigation to the degree that suits against tobacco and firearms have besmirched the reputations of Big Tobacco and major firearms manufacturers and marketers.
We review news coverage of litigation over tobacco, firearms, implants, and food to show that diminishing the responsibility of consumers by attacking the alleged irresponsibility or duplicity[3] of companies is a strategy or tactic the utility of which varies with cultural, legal, ideological, and political contexts. Our narrower objective in this paper is to urge analysts and activists alike to attend to costs and benefits both immediate and eventual, both straightforward and roundabout, and both instrumental and symbolic. Our broader objective in this paper is to deepen and complexify appreciation of the impacts and ramifications of litigation as tool, tactic, and strategy.
To reach objectives broad and narrow, we first show that assessments of civil litigation to affect or effect social policies tend to define winning and losing as well as costs and benefits by immediate, direct, quantifiable results rather than eventual, indirect, intangible ramifications. We contrast such assessments with our own previous work on litigation against Big Tobacco and against the makers and marketers of firearms. We then attend to the gradual, indirect, intangible sets of benefits that reformers and their lawyers may have obtained via criminalization of companies, especially through the use of “crimtorts,” syntheses of civil and criminal tactics and strategies usually deployed against white-collar defendants. We find evidence of varying criminalization in all four sorts of lawsuits: tobacco suits, firearms suits, implant suits, and food suits. Having underscored such ramifications of civil and crimtort actions for the reputations and images of manufacturers and marketers and justified our suspicions about “Oversimplified Scorekeeping,” we then score “Oversimplified Emulation.” This we do by revealing the costs at which criminailzation is achieved. We marshal evidence that breast implants suits and food suits ran into contextual barriers that attenuated the deprecation in implant and food suits.
BEYOND SCOREKEEPING―CHANGING POLITICAL GAMES[4]
For more than three decades scholars and other analysts have debated whether the benefits of litigating for social changeoutweighed the costs of litigation to litigants, litigators, and society. Donald Horowitz (1977), Lon Fuller (1978), Shep Melnick (1983), Peter Schuck (1986), Jeremy Rabkin (1989), Mary Ann Glendon (1989, 1993, 1996), Gerald Rosenberg (1991), Robert Kagan (2001), Ross Sandler and David Schoenbrod (2003), Martha Derthick (2005), Gordon Silverstein (2009), McIntosh and Cates (2010) and Donald Gifford (2010) have questioned the net benefits of litigating as opposed to changing policies or practices in other ways and especially in legislative, bureaucratic, or electoral arenas. Of course, sociolegal scholars and legal practitioners have answered such questions and such questioning vigorously, especially by emphasizing advances and setbacks beyond winning or losing trials (See Scheingold 1974; McCann 1994; Mather 1998; Feeley and Rubin 1998; Peretti 1999; Bogus 2001; Koenig and Rustad 2001; Rubin and Feeley 2003; Haltom and McCann 1994; and Wagner 2007).[5]
In general, “scorekeeping” has tended to gloss over “radiating effects” of litigation beyond money changing hands between defendants and plaintiffs. For one recent example, Wayne V. McIntosh and Cynthia L. Cates ended chapters on tobacco, firearms, and foods with sections entitled “Winners and Losers”[6] and define winning and losing largely, albeit not entirely, by immediate or proximate outcomes. For a second example, Donald Gifford (2010:215-229) ranges beyond outcomes of trials and settlements on his scorecard but not far enough to include some political and cultural gains that tobacco and lead-pigment litigation may have yielded.[7]
We have profited from these concrete, seemingly calculable assessments of litigative attempts to remedy or to regulate powerful concerns. To complement such scoring, however, we have urged attention to symbolic and cultural consequences that, while less immediate, less direct, and less quantifiable, may matter greatly for politics and policies and for those who would alter some status quo. While lawsuits anticipated, threatened, or filed may focus issues, test arguments, and alter the calculations of reformers and defenders alike, they also acquaint attentive publics with reformers’ and defenders’ alarums and calumnies, claims and contentions, and muckraking narratives in settings in which powerful entities and their spokespeople may be more forthcoming than in legislative or electoral politicking. Activists and advocates aim often to advance indirectly through “radiating effects” of litigation or the threat of litigation (Epp 1998; Sarat and Scheingold 1998; Brigham 1996; Silverstein 1996; McCann 1994; Rosenberg 1991; Johnson and Canon 1984; Galanter 1983; Handler, Hollingsworth, and Erlanger 1978; Scheingold 1974) what they have less expectation of achieving directly.
If such reformers’ tactics are to radiate outward, causes must be publicized. However, the predilections of mass media impose costs upon as well as promise benefits for would-be reformers. Class-action and public-interest litigation that is deemed newsworthy may be reduced by the routine over-reporting of plaintiffs’ payouts and win-rates and under-reporting of factual and legal predicates that studies of civil-justice disputes have uncovered (Garber & Bower 1999; Bailis & MacCoun 1996; MacCoun 2005; Haltom and McCann 2004).[8] Simplistic, sensationalized, and succinct reporting may filter out the novel, complex, substantive contentions that reformers aim to publicize and to emphasize instead outlandish claims or derelictions of traditional assignments of responsibility. Claims that depart from common sense and causes that flout individual responsibility in favor of governmental or corporate responsibility create journalistic hooks to tantalize readers: new ways of seeing familiar problems are introduced in a manner that virtually guarantees that most readers will settle for familiar perspectives. In sum, what news media propagate, they tend to overstate and to understate in keeping with news-values and common sense and not with novel views or uncommon sensibilities.
If reports of reform efforts disparage attempts to change minds or to reconceive policies through reform-friendly themes, then reform litigation might boomerang in disadvantageous publicization just as it often has in aforementioned scholarship. If publicized litigation makes reformers and their causes look ridiculous, then news media radiate assessments as harmful to reform messengers as to reform messages. Some activists might endure caricature or personal attacks in return for advances in their causes, but reformers and reforms portrayed as mutually reinforcing promotions of irresponsibility may make litigation a counterproductive tactic.
If, in contrast, reform-minded legal activists use coverage to supplant customary villains [for examples, frivolous ambulance-chasers, self-styled victims, and judges who seek punitive damages for lost pants] and some ordinary perspectives [for example, that individuals should choose and take responsibility for their own choices] with characterizations and frames more propitious to their causes, reformers seeking to induce or coerce governments or corporations to share responsibility with the citizenry might fare better than in other reform litigation. Newspapers’ coverage of firearms litigation and especially of municipal suits against gun corporations might under those circumstances promote far more positive images of reforms and reformers than customary villains and ordinary perspectives had encouraged.
Plaintiffs have documented through litigation and discovery reckless indifference to the welfare of customers and deceits as well as willful subordination of health and of lives to profits. Makers and marketers of suspect products have engaged in duplicity, misrepresentations, and frauds to advertise their wares, to camouflage their misdeeds, and to promote their images solid corporate citizens. Whistleblowers and troves of secreted documents have enabled accusers to move beyond negligence and recklessness to actions and practices that resemble or constitute crimes. The strategic and tactical advantages of plaintiffs and the strategic and tactical liabilities and vulnerabilities of defendants, we have argued, look very different when one takes seriously the capacity and potential of plaintiffs to vilify makers and marketers.
We have also argued that consumer activists and plaintiffs’ attorneys have wielded “game-changers” that often enable victories outside and beyond trials in which activists and attorneys were beaten. We have documented some general, strategic game-changing through vilification and even criminalization of manufacturers, marketers, and other usual targets of civil suits. We have also documented a more specific, more tactical game-changer in the use of “crimtorts.” “Crimtorts” combine elements of civil and criminal litigation to pursue and punish white-collar defendants deemed criminals (Koenig and Rustad 1999, 2004; Simons 2008; see generally Youngdale 2008). Activists who long have waged publicity campaigns to “criminalize” industries (see Kagan 2001) have often relished opportunities to deploy quasi-prosecutorial tactics against defendants that the activists view as malefactors. These quasi-criminal “stylings” to some degree were fortified by litigation invoking the public nuisance doctrine of parens patriae (see Gifford, 2010) but basic principles of criminal fraud were highly familiar to both legal officials and the general public. One result of criminalization framings in general and of crimtort tactics in particular, we have argued, has been to enable campaigns against Big Tobacco and major firearms makers and sellers to transcend their losing records in courts with much greater success in mainstream media.
Creeping Criminalization Changes the Tobacco Game
In “Criminalizing Big Tobacco: Legal Mobilization and the Politics of Responsibility for Health Risks in the United States” (McCann, Haltom, and Fisher 2009) we found that allegations that manufacturers and marketers of tobacco products had behaved irresponsibly and duplicitously crept upward despite an absence of overt vilification or imbalanced characterizations of defendants in the pages of the New York Times 1984-2005. Indeed, a simple line graph derived from that dataset shows that frames that advantaged anti-tobacco activists over time consistently outpaced frames that helped tobacco’s defenders.[9]
Graph One―Plaintiffs’ Frames, Defendants’ Frames, and Governmental Frames
in Articles concerning Tobacco in the New York Times 1984-2005
Did such sullying of Big Tobacco through media cued by and reliant on the New York Times, in turn affect regulation of tobacco makers and marketers? Evidence and inference indicate that indirect effects of coverage and imagery matched the ramifications of largely losing litigation to force new policies and practices on the Industry (Derthick 2010; Center for Responsive Politics 2010). Beyond the Master Settlement Agreement of 1998, litigation, reportage, and imagery appear to have influenced the defection by Philip Morris, the largest seller and historically the manufacturer most concerned about its public image, which split the tobacco industry. A compelling study of internal documents disclosed in compliance with the Master Settlement Agreement reveals that Philip Morris began in 1999 to explore the option of supporting regulation by the Food and Drug Administration in part because its polls and focus group studies showed that its corporate image had plunged among the citizenry (McDaniel and Malone 2005:194). In 2009, Philip Morris spent more than $4 million lobbying for the FDA authorization bill that became law (Layton 2009). Internal communications from Philip Morris commented on the corporation’s concerns about the lawsuits highlighting “the deceptive practices of the industry” and allegations of racketeering, conspiracy, and fraud. Moreover, Philip Morris supported governmental regulation of tobacco as “part of a broader effort to address its negative public image, which has a damaging impact on the company’s stock price, political influence, and employee morale. Through regulation, the company seeks to enhance its legitimacy, redefine itself as socially responsible, and alter the litigation environment” (McDaniel and Malone 2005:193). Criminalization in the legal mobilization effort seemed to play a huge role in leveraging support for the regulatory authority over Big Tobacco. Both the increasing stakes and substantive reframing of litigation arguably contributed to a “tipping point” recalibrating the equilibrium in tobacco policy (Wood 2006).
Cresting Criminalization―Chamging the Firearms Game
In “Litigation, Reputation, and Vilification: How Gun Activists Cannot Lose for Winning,” (Haltom and McCann 2010) we found that manufacturers and marketers of firearms had taken many hits over their dishonesty or irresponsibility in various newspapers in 1984-2005 despite the absence of overt vilification of defendants in coverage and despite the victories of firearms makers in courts and in other venues.[10] A simplified line graph derived from that dataset below shows cumulative effects of lawsuits in increasing “Corporate Responsibility” and “Corporate Duplicity” frames while decreasing “Individual Responsibility” frames in coverage of several newspapers.