Dust-Up: Asbestos Litigation and the Failure of Commonsense Policy Reform

Copyright Date: 2011
Pages: 152
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  • Book Info
    Book Description:

    In an era of polarization, narrow party majorities, and increasing use of supermajority requirements in the Senate, policy entrepreneurs must find ways to reach across the aisle and build bipartisan coalitions in Congress. One such coalition-building strategy is the "politics of efficiency," or reform that is aimed at eliminating waste from existing policies and programs. After all, reducing inefficiency promises to reduce costs without cutting benefits, which should appeal to members of both political parties, especially given tight budgetary constraints in Washington. Dust-Up explores the most recent congressional efforts to reform asbestos litigation-a case in which the politics of efficiency played a central role and seemed likely to prevail. Yet, these efforts failed to produce a winning coalition, even though reform could have saved billions of dollars and provided quicker compensation to victims of asbestos-related diseases. Why? The answers, as Jeb Barnes deftly illustrates, defy conventional wisdom and force us to rethink the political effects of litigation and the dynamics of institutional change in our fragmented policymaking system. Set squarely at the intersection of law, politics, and public policy, Dust-Up provides the first in-depth analysis of the political obstacles to Congress in replacing a form of litigation that nearly everyone-Supreme Court justices, members of Congress, presidents, and experts-agrees is woefully inefficient and unfair to both victims and businesses. This concise and accessible case study includes a glossary of terms and study questions, making it a perfect fit for courses in law and public policy, congressional politics, and public health.

    eISBN: 978-1-58901-786-3
    Subjects: Political Science

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. List of Illustrations
    (pp. vii-viii)
    (pp. ix-x)
  5. Part I: Background
    • CHAPTER 1 Today’s Challenging Legislative Environment and the Politics of Efficiency
      (pp. 3-15)

      On September 9, 2009, President Barack Obama addressed a joint session of Congress on the need for major health care reform. Standing before his fellow elected officials and recent congressional colleagues, Obama declared that the “time for bickering is over” and presented his case for a $900 billion plan that would build on the existing employer-based health care system. In the middle of his speech, after he chided opponents for distorting his plan and insisted that it would not cover illegal immigrants or fund abortions, Republican representative Joe Wilson of South Carolina shouted “You lie” (Connolly and Shear 2009).


    • CHAPTER 2 The Asbestos Crisis in the United States
      (pp. 16-46)

      To understand the most recent congressional attempt to address asbestos injury compensation issues and its broader implications, it is useful to gain a firmer grasp on the underlying asbestos crisis in the United States. This chapter provides the necessary background, though it needs to be noted here that a detailed exploration of this problem could fill an entire book by itself.¹ Accordingly, the chapter proceeds thematically by offering a thumbnail sketch of the rise of asbestos consumption and litigation in the United States, the growing critiques of asbestos litigation, the emergence of the politics of efficiency in connection with asbestos...

  6. Part II: The Case Study
    • CHAPTER 3 Asbestos Litigation Reform as a “Likely” Case for the Politics of Efficiency
      (pp. 49-55)

      Studying political dynamics through the lens of the fate of any single legislative proposal, even a substantively important one, raises thorny methodological issues because success and failure in Washington are overdetermined—many factors are relevant, and each might suffice to cause the outcome. At the same time, analyzing cases where our theoretical understanding indicates promising circumstances but failure emerges can be analytically useful. It can probe the boundaries of existing theory, reveal dynamics obscured in ordinary cases, and generate hypotheses that can be tested using other methods as data accumulate (Bennett 2010; Gerring 2004, 2007; see also Collier 1993; Skocpol...

    • CHAPTER 4 The Puzzling Politics of the FAIR Act
      (pp. 56-76)

      The demise of asbestos litigation reform in the 109th Congress culminated a long political process that formally encompassed two very different reform approaches, each of which represented a spillover from the previous session. (Appendix B provides a rough chronology of events during the 108th and 109th Congresses to help orient the reader.) One bill, the Asbestos Compensation Fairness Act of 2005 or “medical criteria bill” (HR 1957), was a discouragement reform, which sought to reduce the amount of litigation without providing an alternative. In effect it proposed to codify the practice of creating inactive dockets for asbestos lawsuits, which required...

  7. Part III: Implications
    • CHAPTER 5 The Asbestos Case and the Politics of Efficiency
      (pp. 79-91)

      The politics of efficiency is not limited to the case of asbestos. It has been a recurring theme during the Barack Obama administration. In his inaugural address, President Obama challenged the nation to “set aside childish things” and squarely confront the “gathering clouds and raging storms” of wars abroad, a faltering economy, a dysfunctional health care system, broken schools, and an outdated infrastructure whose dependence on oil simultaneously strengthens our enemies and threatens our planet. To meet these daunting tasks, Obama urged us to look beyond the “stale political arguments” of the past that “for too long have strangled our...

    • CHAPTER 6 The Asbestos Case, Institutional Change, and the Judicialization of American Policymaking
      (pp. 92-104)

      At first glance, the asbestos case seems to illustrate conventional wisdom about the limited capacity of the American policymaking process for change. Indeed, it seems to be a textbook illustration of how fragmentation and checks and balances thwart change by creating multiple veto points, which make it easier to block reforms than to pass them. After all, the demise of the FAIR Act is only the latest example of failure in this area. Dozens of reform initiatives have died on Capitol Hill since the mid-1970s, whereas asbestos litigation and its related costs and inefficiencies have continued to spiral out of...

  8. Appendixes
    • APPENDIX A The Case Method and “Likely” Cases
      (pp. 105-108)
    • APPENDIX B Chronology of Selected Events
      (pp. 109-112)
    • APPENDIX C Classroom Discussion Questions
      (pp. 113-114)
    (pp. 115-118)
    (pp. 119-130)
  11. INDEX
    (pp. 131-138)