university of puget sound · web viewabstract. assessments of reform through civil litigation have...

Political Advances amid Litigational Defeats:The Indirect Effects of Crimtort Causes1

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 advan-tages activists and advocates have obtained via criminalization of companies, especially through the use of a hybridization of civil and criminal tactics and strategies called “crim-torts.” 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 re-veals, in sum, both considerable potential of and considerable constraints on reform or regulation through civil suits.

Prepared for presentation to theWestern Political Science Association

San Antonio TX2011

1 The authors thank the National Science Foundation for Award #0451207, which supported gathering and coding of data.

Political Advances amid Litigational Defeats: The Indirect Effects of Crimtort CausesWilliam Haltom and Michael McCannWestern Political Science Association 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 tempta-tion is “Oversimplified Scorekeeping” – a tendency to tote immediate costs and benefits of verdicts, judgments, and settlements but to overlook the indirect ramifications of litiga-tion and the cultural consequences of alternatives to ordinary politicking. In previous pa-pers for the WPSA, we have presented evidence that activists have succeeded in deploy-ing 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 success-ful re-framing. We show that manufacture or marketing of silicone products and of fast, fatty, or junk foods2 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 irresponsi-bility or duplicity3 of companies is a strategy or tactic the utility of which varies with cul-tural, 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 even-tual, 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 ben-efits 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,” syn-theses 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: to-bacco suits, firearms suits, implant suits, and food suits. Having underscored such rami-fications of civil and crimtort actions for the reputations and images of manufacturers and marketers and justified our suspicions about “Oversimplified Scorekeeping,” we then 2 What McIntosh and Cates label “The Politics of Food Litigation” might be differentiated into struggles over fast foods, fatty foods or fats in food, junk food, and the like. Given this variety of objects of concern and issues for reform, “food litigation” may be quite variegated.

3 Throughout this paper we refer to various deceptions, misrepresentations, or prevarications by marketers or makers of products. Some deceptions sank to the level or perjury or mendacity. Other deceptions par-took more of spin or euphemisms common in public relations or advertising. Rather than sort through such strategies or tactics, we use “duplicity” to subsume the tricks of these trades.

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score “Oversimplified Emulation.” This we do by revealing the costs at which criminail-zation 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 GAMES4

For more than three decades scholars and other analysts have debated whether the bene-fits of litigating for social change outweighed 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 be-yond 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, albe-it 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 score-card 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 at-tempts to remedy or to regulate powerful concerns. To complement such scoring, how-ever, we have urged attention to symbolic and cultural consequences that, while less im-mediate, 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 4 We invoke “games” not in any frivolous sense but in the sense that Schattschneider used games in his classic question “Whose Game Do We Play?” (Schattschneider 1975: Ch. 3).

5 Peter Bell and Jeffrey O’Connell (1997) conducted an explicitly dialogic survey of the dilemmas inher-ent in tort litigation, a dualistic investigation with great pertinence for litigation for social or policy change.

6 McIntosh and Cates were assessing regulation by means of litigation.

7 Inclusion of tobacco in each of these examples may point to the role of tobacco litigation as archetype for other litigation campaigns. Attention to tobacco may provide an argument a fortiori: If litigation against tobacco was not worth the trouble, how much less worthwhile must less successful litigation be?

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filed may focus issues, test arguments, and alter the calculations of reformers and defen-ders 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 un-covered (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 disadvanta-geous publicization just as it often has in aforementioned scholarship. If publicized liti-gation makes reformers and their causes look ridiculous, then news media radiate assess-ments 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 in-dividuals should choose and take responsibility for their own choices] with charac-terizations 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

8 In noting these tendencies of news media, we intend to criticize neither media nor litigators. Our focus instead is on how litigation strategies and tactics tend to appear in published accounts.

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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, misrepre-sentations, and frauds to advertise their wares, to camouflage their misdeeds, and to pro-mote their images solid corporate citizens. Whistleblowers and troves of secreted docu-ments 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 ac-tivists view as malefactors. These quasi-criminal “stylings” to some degree were forti-fied 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 al-legations that manufacturers and marketers of tobacco products had behaved irresponsi-bly 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-tobac-co activists over time consistently outpaced frames that helped tobacco’s defenders.9

9 The lines in Graph One represent combinations of frames that will be explained in some detail infra. We presumed the following frames to be welcomed by defendants and targets of the civil suits under review: “Individual Responsibility” frames and “Attorneys’ Fees” frames. In Graph One these defendant-welcome frames are represented in the blue line. The red line in Graph One represents “Corporate Responsibility” frames, “Corporate Duplicity” frames, and “Public Costs” frames, each of which is defined later in the text

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Graph One―Plaintiffs’ Frames, Defendants’ Frames, and Governmental Framesin Articles concerning Tobacco in the New York Times 1984-2005

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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 infer-

and in Appendix A. The green line in Graph One stands for frames that assigned some responsibility to one or more governments.

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ence 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 pub-lic 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 Ad-ministration 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 be-came law (Layton 2009). Internal communications from Philip Morris commented on the corporation’s concerns about the lawsuits highlighting “the deceptive practices of the in-dustry” 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, poli-tical 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 To-bacco. Both the increasing stakes and substantive reframing of litigation arguably contri-buted 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 Win-ning,” (Haltom and McCann 2010) we found that manufacturers and marketers of firearms had taken many hits over their dishonesty or irresponsibility in various newspa-pers 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.

Perhaps the “spike” of re-framing mattered little in the contest to regulate firearms. Per-haps firearms companies – far less well heeled than tobacco companies – tired of exten-sive fees for legal defenses. Nonetheless, defenders of the manufacturers, marketers, and owners of firearms moved quickly to induce legislatures to ban lawsuits against firearmsinterests. This seemed to us an indirect effect of the very few victories and multitudinous defeats of proponents of greater regulation of firearms. We concluded that scorekeepers should take such results more seriously than they appear to.

Graph Two― Plaintiffs’ Frames, Defendants’ Frames, and Governmental Framesin Articles concerning Firearms in Various U. S. Newspapers 1984-2005

10 Please note well that we studied tobacco coverage only in the New York Times and but firearms coverage in “major newspapers” as designated by LexisNexis Academic.

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In each Western paper and in other researches (Haltom and McCann 2009), we have em-phasized that “Individual Responsibility” frames – presumptions, expectations, or de-mands that consumers bearing the costs of their decisions to consume products or those who misuse legal products bearing blame for deaths, injuries, and crimes from those pro-ducts – declined relative to frames emphasizing the responsibilities and sometimes even

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the criminal culpability of producers. Attributions of personal accountability and individ-uated blame were the main initial strategies of corporations’ social, political, and legal defenses against demands for regulation or abolition, the historical record showed. The record further showed, we argued, that those who sought greater control of tobacco or of firearms circumvented this default “Individual Responsibility” framing through dramatic attributions of the collective responsibility to manufacturers and marketers – “Corporate Responsibility” frames – and, especially via “crimtorts,” the collective culpability of manufacturers and marketers in misleading opponents and officials in courtrooms as in public relations – that is, “Corporate Duplicity” frames. Combinations of responsibiliz-ing and criminalizing rhetorics often failed in courtrooms but made major headway in mass mediated living rooms.

In addition we showed that the responsibilizing and criminalizing rhetorics dominated newspapers and other popular media more when lawsuits were deployed than when to-bacco or firearms control was discussed apart from lawsuits. We contrasted reports that centered on litigation with reports in which litigation was peripheral and almost always unmentioned. Articles that extensively or intensively reported lawsuits demonstrated the promulgation of “Corporate Responsibility” and “Corporate Duplicity” themes far be-yond articles that featured little or no attention to litigation.11

In Summary: Criminalization Changed the Political Score

Even when they lost suits, plaintiffs secured coverage that publicized charges of cor-porate irresponsibility and corporate deceit or mendacity. Sampled articles evinced little or no overt vilification of producers and little or not detectable sympathy for consumers, so the frame-shifting appeared to follow less from reportorial or editorial bias than from the structure and process of litigation. Civil litigation involves filings in which plaintiffs assert defendants’ negligence, recklessness, or culpability as part of the cause of action. Crimtort actions – tools often used to prosecute white-collar defendants – exacerbate the exaggeration or overstatement of charges and accusations. We even concluded that activist plaintiffs appeared to have “criminalized”12 tobacco and firearms companies in news media even when suits failed in courtrooms.

GAMES CHANGE AS TEAMS AND ARENAS CHANGE

To the extent that our reinterpretations improved on simplistic scorekeeping, use of law-suits and litigative campaigns against Big Tobacco and against far smaller makers and marketers of firearms should be reassessed, which is why we caution analysts not to score litigation in a manner indifferent to indirect but potent ramifications. Lest our admoni-tion to analysts be mistaken for advice to activists who would apply “lessons” of suits

11 We display line-graphs that illustrate this point in Appendix B.

12 Please recall that in this and previous papers we mean by “criminalize” allegations or charges beyond negligence or even recklessness, wrongs that reflect intentions or acts that, if proved, might justify conviction and severe punishments beyond compensating some plaintiff or victim.

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against tobacco and firearms concerns to other issues, we compare in this paper coverage of suits against tobacco and firearms with coverage of lawsuits against silicone breast im-plants and against fast foods, fatty foods, or junk food. In previous papers we cautioned that re-framing strategies and tactics varied with contexts and contingencies (Haltom and McCann 2004b; McCann and Haltom 2004; McIntosh and Cates 2010). In this section, we review the characteristics of litigation on implants and on food that augured ill for de-ployment of criminalization or other arts of besmirching that seemed to have succeeded against tobacco and firearms. Tactics derived from suits against Big Tobacco did not work as well against fast food outlets or against fatty foods. In litigation against silicone implants the responsibility or duplicity of manufacturers was not easily established and emerging epidemiological evidence undermined conventional liability strategies.

McIntosh and Cates (2010:143-147) have formulated some heuristics that organize think-ing about the contexts and contingencies that may condition re-framing. We reproduce Table One from Table 5.1 (McIntosh and Cates 2010:145).

Table One―McIntosh and Cates’ “Comparison of multi-party litigationcharacteristics in tobacco, gun, and food cases”

Litigation issue Tobacco Guns Fast food

Potential plaintiffs perceived universal or sympathetic

no no yes

Large plaintiff attorney payoffs yes no no

Public-private litigation partnership yes yes no

Aggressive defendant legal strategy yes yes yes

Aggressive defendant legislative strategy yes yes yes

International implications yes no yes

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Readers might disagree with McIntosh and Cates regarding this or that judgment.13 Such disagreements lie to the side of our point in reproducing their pithy scheme. McIntosh and Cates posit some similarities and some differences among causes that may condition the immediate, instrumental, direct results of litigation for social changes. Similarities in-clude that across causes and cases defendant manufacturers and marketers will pursue ag-gressive legal and legislative strategies and hardball tactics. Beyond those invariants, sympathetic victims will sometimes advantage plaintiffs and make litigation more pro-mising and will at other times make litigation more challenging. The cause lawyer must align proper victims to proper villains to enhance the odds of success either in the instant suit or in the eventual crusade. McIntosh and Cates also note that firearms and food plaintiffs reduced or eliminated attorneys’ fees14 as an issue by undertaking cases without direct, immediate mercenary interests evident. The ability of advocates to fend off dis-tractions and defamation, then, may also condition the degree to which one set of cases is like another set and thus that one cause may emulate another cause. A third difference between causes identified by McIntosh and Cates is the degree of partnership between governmental and private plaintiffs, partnerships present in tobacco and firearms suits to a far greater extent than in food suits.15 This difference, too, may qualify the expected re-turns from emulation.

We extend McIntosh and Cates’s strategic analyses to include some less direct outcomes of tobacco, firearms, and food cases. [We also consider coverage of implants, an issue not taken up by McIntosh and Cates.] In Table Two we add contingencies that make emulation of tobacco and firearms strategies and tactics even more problematic in food and implants litigation. We proceed below from tobacco to firearms to implants to food causes, the order from top to bottom of Table Two.

13 For example, McIntosh and Cates’s summary characterizations of the universality or sympathy of plain-tiffs lack nuance and seem to overlook the degree to which universality or sympathy of plaintiffs and defendants alike is socially, politically, and jurally constructed. Many actual, let alone potential, plaintiffs in food cases are far from sympathetic or “universal,” as McIntosh and Cates themselves demonstrate (2010:); many survivors of the carnage wrought by tobacco or firearms could not be more sympathetic and, alas, too often seem quite ordinary in their suffering.

14 Attacks on plaintiffs’ attorneys for profiting from suing corporations were common from the mid-1990s on and may be a form of vilification of victims’ causes and cases without directly attacking the victims themselves.

15 McIntosh and Cates demonstrate governmental interventions in their discussion of regulation of food via litigation, so they must realize that their “no” in the row associated with public-private partnership may mislead those who have not been reading McIntosh and Cates carefully.

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Table Two―Political and Cultural Characteristics of Tobacco, Firearms,Implants, and Food Causes and Cases16

Framing Litigants’ Unity/Coherence

Popular Culture

Tob

acco

Reduce “Individual Responsibility” by non-consent: nicotine addiction; choices made underage; involuntary second-hand smoke; & public health expenses borne by taxpayers.

Increase “Corporate Responsibility” by how products made/marketed: manipulating levels of nicotine; advertising to minors; & denying carcinogens and other harms.

Increase “Corporate Duplicity” by docu-menting dishonesty: phony science; per-jury; confidentiality agreements & intimi-dation of whistleblowers.

Enduring moral/policy co-operation: Big Tobacco’s chronic challengers [health experts, scientists, & private lawyers] share cause with novel challengers [kids' ad-vocates, public officials, & states’ AGs].

vs.

Enduring monetary/policy confluence of interests: Big Tobacco’s defenders share interests in profits, campaign contributions, legal fees, state and U. S. taxes, and jobs in factories or on farms.

Thank You for Smoking (1995)

The Runaway Jury (1999)

“The Insider” (1999)

“Thank You for Smoking” (2006)

Fire

arm

s

Reduce “Individual Responsibility” by focus-ing on victims: innocents shot; accidents, especially involving children; & public health expenses borne by taxpayers.

Increase “Corporate Responsibility” via cor-porate misdeeds: misleading marketing; large-volume sales; inadequate background checks; willingness to get firearms to con-victs; unsafe design of weapons; & willfully inadequate policing of distribution.

Increase “Corporate Duplicity” by cover-ups & corruption: straw purchases; dealings with corrupt dealers & accommodations of illegal markets; & punishing whistleblowers & hiding tracing data.

Temporary alliance around issues: police chiefs, kids groups, city attorneys, & NAACP support specific suits by longstanding oppo-nents of firearms practices or firearms rights [e.g., the Brady Center].

vs.

Enduring alliance around rights: NRA, longtime allies, & makers & marketers of firearms mutually commit to rights & liberties of owner-ship & use of firearms.

Thank You for Smoking (1995)

“Thank You for Smoking” (2006)

“Runaway Jury” (2003)

“Bowling for Columbine” (2002)

More Guns, Less Crime (2000)

16 While we welcomed information from many sources for construction of this table, we especially relied on McIntosh and Cates (2010) regarding litigation over tobacco, firearms, and food.

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Silic

one

Bre

ast I

mpl

ants

Reduce “Individual Responsibility” by refo-cusing attention: non-cosmetic implants; limited information limited patients’ consent; autoimmune & other side-effects not known or acknowledged.

Increase “Corporate Responsibility” by shift-ing burdens to makers or marketers: manufacturers incurious about “concerns”17 failed to prove implants safe.

Increase “Corporate Duplicity” by attacking secrecy: makers/marketers fail to warn MDs about nearly inevitable ruptures and leakage.

Trial lawyers and hopeful plaintiffs but not much of a "movement."

Science/Expert opinion divided.18

FDA moratorium & House subcommittee [Ted Weiss] hearings.

FDA processes attacked [AfJ 11].

Plastic surgeons energeti-cally lobby to keep implants on market.

Science on Trial (1997)

“Breast Men” (1997)

Connie Chung

Informed Consent (1997)

Fast

/Fat

ty F

oods

Reduce “Individual Responsibility” by de-fects in consumers’ choices: unawareness of calories; marketing to children; evidence of addictiveness of fast/fatty foods.

Increase “Corporate Responsibility” by negligence/recklessness of vendors: fai-lures to warn or disclose nature of products; negligence in hawking foods high in fat, cholesterol, sugar, salt, and other unhealthful ingredients, which promote obesity; and pro-fiting from “attractive nuisances” that lure children and product placements on chil-dren’s programming.

Increase “Corporate Duplicity” by mendacity: deceptive marketing, false advertising, or fraud [including McDonald’s cooking “vegetarian” fries in beef tallow].

Ad hoc amalgam of litiga-tors: Cross-cutting interests among health experts con-cerned about obesity, nutri-tionists opposed to fast food; exercise gurus, moralists, anti-corporate reformers.

Fast Food Nation (2005)

“Fast Food Nation” (2006)

“Super Size Me” (2004)

“Food Inc.” (2008)

Tobacco Lawsuits

Scorekeepers’ accounts of tobacco litigation do not detract from tobacco’s example for follow-on cases and campaigns. That attorneys and advocates in each of the other issues expressly patterned their efforts after tobacco suggests some satisfaction with the accom-plishments of tobacco plaintiffs and cases. What advantages did emulators espy? First, anti-tobacco activists found a way to overcome default “Individual Responsibility” fram-ings. If smokers and chewers elected to smoke or to chew, their consent was attenuated

17 Alliance for Justice in “Independent Justice” [p. 3] “Through the litigation process―and despite the efforts of manufacturers―company documents emerged that revealed strong internal concerns about the implants and established a startling lack of research into implant safety.”

18 Alliance for Justice in “Independent Justice” [p. 4] pronounces science underlying silicone unsettled.

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by Big Tobacco’s marketing to consumers under the age of consent, by non-smokers’ non-consent to second-hand smoke, and by states’ expenditures on health problems attendant on consumption. Next, emulators saw how plaintiffs played up “Corporate Re-sponsibility” for advertising to minors, manipulation of levels of nicotine to keep smo-kers addicted, and denial that tobacco was carcinogenetic [among other perils of tobacco consumption] especially through pseudo-science and public relations. Third, whistle-blowers, documents, and discovery as part of suing yielded ample evidence of “Corporate Duplicity:” mendacity and manipulation of information and of those who held it. Dimin-ishing consumers’ responsibility or assumption of risk while augmenting the responsibili-ty or venality of corporations through framings and re-framings unified various political forces around a common cause, so plaintiffs were able to contest the hegemony of Big Tobacco outside courtrooms if not so much inside them. We also note in Table Two pairs of novels and of films that spread the anti-tobacco cause through popular culture.

Firearms Lawsuits

Litigators who sought to regulate or restrict firearms explicitly adapted strategies and tac-tics that had worked in tobacco lawsuits. Yet, even before the Heller majority constitu-tionalized an individual right to keep and bear arms, forces battling firearms and rights to keep and bear arms faced fearsome obstacles (Sugarman 2006). Like tobacco causes, regulation or eradication of firearms depended on getting around “Individual Responsi-bility” by way of corporate liability, responsibility, or criminality. The makers of fire-arms accommodated activists by practices and pronouncements easily characterized as irresponsible or reprehensible. Unlike tobacco reformers, firearms activists faced the for-midable National Rifle Association and other long-time defenders or firearms and of rights with a make-shift alliance desperate to contest in courtrooms what they seldom could contest effectively elsewhere. In that fight, however, reformers enjoyed some sup-port from popular culture.

Implants Lawsuits

The obstacles that litigation over silicone breast implants had to surmount were more im-posing than those overcome by tobacco and firearms activists, so emulation of “success-ful” litigation would demand overlooking disadvantages that burdened opponents of im-plants. Although plaintiffs could point out that perhaps a fifth of implants were not “merely cosmetic,” such a showing might alert elites and masses alike to the motives be-hind the other 80%. Evidence of irresponsible manufacture or marketing was slim even before epidemiological findings began to undermine any defects or shortcomings in im-plants. Plaintiffs sometimes hid the variety of positions and interests behind a loosely unified front, and juggling interests and issued almost guaranteed ad hoc agitation more than a movement. In the realm of popular culture, opponents of implants enjoyed no advantages comparable to the fiction and nonfiction books and the compelling and much watched movies that assisted tobacco lawyers in vilifying Big Tobacco.

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Lawsuits concerning Fast, Fatty, or Junk Foods

Food causes, too, sought to follow the tobacco model, but each of the strategies on which we focus in Tale Two was deeply problematic. However defective that advocates might make consumers’ choices seem, judges, jurors, and the citizens in general likely would hold consumers responsible for what they ate, so “Individual Responsibility” was an im-movable object against which food fighters could marshal no irresistible force or argu-ment. Marketers zealously hawked junk food, fast food, and fatty foods, but lawyers could not easily portray iconic chains and popular restaurants as reckless or negligent in a society suffused with advertising and commercialism. “Corporate Responsibility” frames fashioned along the lines of efforts against tobacco ran into “consumer sovereignty.” “Corporate Duplicity” frames could make little headway by emphasizing that marketing was deceptive, advertising exaggerated, or corporate public relations less than candid, so Ronald McDonald was far more resistant to denunciation than Joe Camel.

Our sketch of similarities in strategies and differences in circumstances across tobacco, firearms, implant, and food issues illustrates perils of analogizing across issues. Litiga-tors crusading against firearms, implants, or defective foods patterned their efforts after what they regarded as successes that brought Big Tobacco to the bargaining table if not “the bar of Justice.” But lawyers and strategists for the firearms industry could not com-pete against the lobbying and electoral clout of the NRA, which effectively deprived liti-gators of their venues, nor the popular resonance of gun rights and culture (Kohn 2005; Kahan, Braman, and Gastil 2006). Lawyers and strategists for opponents of implants could not marshal science against the silicone makers because science repeatedly and emphatically supported defendants rather then plaintiffs. Persuading jurors and citizens that nicotine was habit-forming corresponded to experiences or observations of tens of millions over decades; analogizing to addictions to fast food, fats, salts, and similar pro-ducts contradicted the experiences and observations of tens of millions over decades.

In sum, the tobacco lawyers blazed trails that other litigators found difficult to traverse. Emulation of what litigators [but perhaps not scorekeepers] regarded as triumphs over Big Tobacco was at best tricky and at worst tantalizing. Anti-firearms actions enjoyed some successes while municipalities and other government could be mobilized on behalf of complainants, and such actions had some resonance in movies and books, albeit that in nonfiction at least intellectually respectable cases could be marshaled on the side of fire-arms and the rights of owners (Lott 2000). Legal and political mobilization against sili-cone implants encountered grave difficulties vilifying makers and manufacturers, espe-cially when heart-wrenching anecdotes and medical conjecture collided with monolithic epidemiological studies. Science stood against implants plaintiffs every bit as imposingly as science backed tobacco plaintiffs. Legal and political actions against purveyors of fast food had going for them almost no resources that opponents of Big Tobacco enjoyed: an addiction argument that might be true to some extent but contradicts to a great extent the experience of most consumers; a consumer culture suffused with fast, fatty, salty, and yummy treats against which the arrayed lawyers and nutritionists seem to be spoilsports and scolds; and cultural productions too high-brow to overcome frequent household guests, corporate icons, and royalty such as the Burger King and the Dairy Queen.

14


The factors arrayed by McIntosh and Cates in Table One above may account for the in-ability of other causes to emulate efforts to regulate or restrict tobacco. The factors ad-duced by us in Table Two may complement McIntosh and Cates’ account in Table Two. Either or both sets of factors, in our view, stand as admonitions against facile emulation of strategies and tactics at least somewhat successful against Big Tobacco.

RE-SCORING TOBACCO, FIREARMS, IMPLANTS, AND FOOD LITIGATION

We now marshal data that reinforce the two oversimplifications against which we are in-veighing in this paper. First, newspaper coverage of mobilizations against the four “causes” we are considering [Big Tobacco, firearms, silicone implants, and foods] show that threatening and filing lawsuits consistently accentuates the criminalization of defen-dant makers and marketers even when lawsuits are conspicuously unsuccessful in court-rooms and in settlement negotiations. This finding, of course, undermines “Oversimpli-fied Scorekeeping.” Second, press coverage also bears out the differential expectations for lawsuits regarding tobacco, firearms, implants, or foods articulated above. The re-framing that opponents or critics of tobacco practices and policies were able to work has proved at least more complicated and in many respects counterproductive in the three other issue-areas. Sic transit “Oversimplified Emulation.” Taken together, then, the data we review below reinforce our narratives and arguments in sections 1 and 2 above.

Sampling Litigation-Heavy and Litigation-Light Reportage

We sampled articles from the New York Times [for tobacco issues] or from “major news-papers” as grouped by LexisNexis Academic [for firearms, implants, and food issues] ac-cording to protocols in Appendix A of this paper. Our sample was targeted at articles that most and least emphasized specific litigation. We matched the tails of an imagined distribution of articles between those without mention of a specific suit at one end and those with multiple mentions of lawsuits at the other end.

Litigation-Heavy and Litigation-Light Scorecards

Roughly to approximate the difference that lawsuits make for coverage of the four causes we selected, we constructed Table Three. Table Three presents six frames of greatest rel-evance for this paper, ordered from the frames most advantageous to defendants [“Indi-vidual Responsibility”] to those most advantageous to plaintiffs [“Corporate Responsi-bility” and “Corporate Duplicity”] with “Governmental Responsibility” in between.19

19 The entire array of frames detected in each of the four sorts of causes may be found in Appendix D.

15


Table Three―Six Common Frames in Tobacco, Firearms,Implants, and Food Causes and Cases

TobaccoLitigation-Light

Sample n col %

Litigation-Heavy Sample

n col %

Both Samples

n col %Individual Responsibility 85 16% 186 16% 271 16%Attorneys’ Fees 0 0% 81 7% 81 5%Governmental Responsibility 167 31% 68 6% 235 14%Public Costs 103 19% 108 9% 211 12%Corporate Responsibility 101 19% 379 32% 480 28%Corporate Duplicity 86 16% 364 31% 450 26%Total 542 101% 1186 101% 1728 101%

FirearmsLitigation-Light

Sample n col %


N col %

Both Samples


Silicone Breast ImplantsLitigation-Light

Sample N col %


N col %

Both Samples


Fast, Fatty, Junk FoodsLitigation-Light

Sample n col %


N col %

Both Samples


The overall “scorecard” that Table Three presents suggests that reports of or comments on litigation tended to emphasize Corporate Responsibility and Corporate Duplicity frames far more and Individual Responsibility far less than reports of or comments on causes without the focus on lawsuits. Looking at the table in greater detail, we see that

16


o “Individual Responsibility” framings – detection of the frame that we have labeled the default and one that consistently redounds in favor of defendants by assigning choices and consequences to consumers – overall factored into coverage that featured specific cases less than in reports about causes that did not focus on specific cases.20 [In food causes, the decline in such framings was minimal for case-centered coverage and in each sample made up more than 40% of all frames detected; this key advantage to makers or marketers of fast or fatty foods will interest us more as an indicator of differences across causes than it does regarding differences between suit-intensive coverage and other reportage.]

o “Attorneys’ Fees” frames, by contrast, were far more common in litigation-heavy reports than in litigation-light reports but made up such small portions of framings in either litigation-heavy reports and litigation-light reports that they conferred a seemingly modest advantage on corporate defendants.21

o Frames that highlight the responsibility or irresponsibility of makers or marketers of products were detected far more often in litigation-heavy articles than in litiga-tion-light articles.

o Coverage of causes with few or no lawsuits worked far less vilification or crimi-nalization than did coverage of lawsuits, we see from the bottom-most rows for each issue-area. Corporate Duplicity frames increase impressively in coverage of tobacco and firearms cases over levels in reports of causes without cases and increase noticeably in coverage of implants and food cases over levels of coverage that does not concern specific suits.

o Attention to Public Costs―expenses of consumption borne by governments and taxpayers―was minimal and declined in litigation-heavy coverage, so litigation does not appear to have increased attention to that frame.

o Invocations of “Government Responsibility” frames consistently figure more in articles that do not concern or contain lawsuits than in articles concerned with or containing lawsuits, albeit that “Government Responsibility” is a theme far more prominent in coverage of tobacco and firearms causes than in coverage of implants and food causes.

Our Table Three “scorecard” indicates that the frames most advantageous to makers or marketers―“Individual Responsibility” and “Attorneys’ Fees”―manifest at most modest and occasional gains in litigation-heavy coverage relative to litigation-light coverage. By

20 We note that “Individual Responsibility” held steady at 16% in each sample of coverage of tobacco causes.

21 Although coders had “Attorneys’ Fees” frames available for coding for every article, attacks on contin-gency fees and lawyers’ profiting from suits against tobacco companies proliferated in the mid-1990s and faded thereafter.

17


contrast, the frames most advantageous to advocates―“Corporate Responsibility” and “Corporate Duplicity”―were often more common and usually substantially more common in articles concerned with specific suits than in articles about causes but not cases. “Government Responsibility,” more prominent when specific cases were not involved, was not very prominent when articles mentioned or profiled specific suits.

Scoring the Emulators’ Suits

Gains in advantageous frames, we concede, only rough indicate cultural, symbolic, and political gains from litigation in pursuit of product-related reforms, but those gains sug-gest why advocates of reform went after those who manufacture and those who market firearms, implants, and fast foods via tactics and strategies similar to those that had worked [in the view of the reformers if not that of sociolegal scholars] against Big Tobac-co.22 We turn now to more nuanced scrutiny of gains and losses in litigating for regula-tion of consumer goods and services. That subtler review will reveal many similarities but many differences between tobacco litigation and the other three sorts of causes.

Tobacco―Diagram One reviews framing in coverage of tobacco causes and cases in the New York Times between 1984 and 2005 so that the causes and cases most emulated by the other three sets of causes and cases may be inspected.23 In coverage of causes without cases―that is, the Litigation-Light Sample―we find that “Science” frames dominated articles and that “Government Responsibility” frames outpaced pro-defense or pro-plaintiff frames. When causes were covered amid cases―the Litigation-Heavy Sample ―“Science” and “Government Responsibility” frames were far less common., and “Cor-porate Responsibility” and “Corporate Duplicity” dominated other frames. Indeed, the three frames that plaintiffs preferred and sought―“Corporate Responsibility,” “Corporate Duplicity,” and “Public Costs”―make up almost 70% of the frames detected in the Liti-gation-Heavy Sample. “Individual Responsibility” frames also were found far more fre-quently in coverage laced with specific suits, which may indicate that tobacco defendants were successful at focusing on consumers who chose years or decades of tobacco enjoy-ment and now dared to sue companies for providing what consumers wanted. Still, In-dividual Responsibility and Attorneys’ Fees frames combined constitute in the Litigation-Heavy Sample less than one-third the frames for which plaintiffs argued, so coverage of specific suits seems to have favored reformers and their causes.

22 We have rehearsed earlier in this paper and in previous papers considerable evidence of the efficacy of litigation against Big Tobacco and against other companies.23 Appendix C preserves results of all frames.

18


Diagram One―Use of Selected Frames in New York Times Reportage of Tobacco Causes and Cases, Split by Minimal Attention to Specific Suits

versus Maximal Attention to Specific Suits

Corporate Duplicity

Corporate Responsibilty

Public Costs

Government Responsibility

Good or Junk Science

Attorneys' Fees & Motives

Individual Responsibility

Fram

e D

etec

ted

500 400 300 200 100 0

Count

Corporate Duplicity


Public Costs


Good or Junk Science



5004003002001000

Litigation-HeavyLitigation-LightSample

19


Diagram Two―Use of Selected Frames in Reportage of FirearmsCauses and Cases in “Major Newspapers” Split by Minimal Attention

to Specific Suits versus Maximal Attention to Specific Suits

Corporate Duplicity


Public Costs




Frame

Detec

ted

600 500 400 300 200 100 0

Count

Corporate Duplicity


Public Costs




6005004003002001000


Firearms―Coverage of causes and cases concerned with manufacturer, marketing, and uses of firearms differed from coverage of tobacco to some degree but resembled coverage of tobacco in enough respects that we see why firearms reformers and plaintiffs might follows tobacco reformers’ lead. One difference between tobacco and firearms causes jumps from the Litigation-Light Sample in Diagram Two: When suits were not threatened or forming, reformers complaints about firearms and firearms rights got far less coverage or comment than when suits were imminent or under way. Beyond that stark difference between tobacco and firearms crusades, the Litigation-Heavy articles in Diagram Two assume a profile much like the profile for tobacco in Diagram One. The three frames preferred by fire-arms plaintiffs make up more than 70% of all frames in Diagram Two. The two frames most advantageous to firearms companies again hover at around one-fifth of all frames in Diagram One. Like tobacco causes and cases, “Governmental Responsibility” is more common when specific suits are not being covered than when specific suits elicit articles.

20


Diagram Three―Use of Selected Frames in Reportage of ImplantsCauses and Cases in “Major Newspapers” Split by Minimal Attention


Corporate Duplicity

Corporate Responsibility

Public Costs


Science

Attorneys' Fees

Bankruptcy


Fram

e D

etec

ted

400 300 200 100 0

Count

Corporate Duplicity


Public Costs


Science

Attorneys' Fees

Bankruptcy


4003002001000


21


Implants―If firearms and tobacco causes and cases strongly suggest some ramifications of press coverage of litigation strategies and tactics, coverage of implants differed from coverage of the first two sorts of policies and practices, as Diagram Three discloses. In implants causes and cases alike, frames related to science dominate coverage [albeit that science frames make up about 60% of Litigation-Light frames but about 40% of Litigation-Heavy frames]. The role of epidemiological studies was such in silicone implants causes and cases that the coverage seems to follow the science. Still, implants reveal some advantages to suits. Corporate Responsibility and Corporate Duplicity frames are far more common when suits are foci of articles than when suits are not the foci, much as was the case with tobacco and firearms disputes. Unlike the data for tobacco and firearms disputes, Individual Responsibility nearly disappeared in Litigation-Heavy coverage. Balancing those advantages to plaintiffs in coverage of suits to an extent were “Bankruptcy” frames, which were far more common in Litigation-Heavy coverage than in Litigation-Light coverage, and “Attorneys’ Fees” frames, which were many times more common in Litigation-Heavy coverage than in Litigation-Light coverage, if still sparse. Coverage of lawsuits also appears to have played down issues of femininity and feminism relative to coverage of implants when suits were not involved.

Food―Implants coverage diverged significantly from coverage of firearms and tobacco despite some attempts to emulate the successes of tobacco and firearms agitation and litigation; coverage of fatty, junk, and fast foods deviated from tobacco and firearms coverage still more. Diagram Four nearly shouts the persistence of “Individual Responsi-bility,” the favored frame of corporate defendants and the default frame that media and publics tend to attach to causes and cases. Beyond that stark difference and perhaps ow-ing to the predominance of Individual Responsibility framings, Corporate Responsibility frames were about the same in coverage of causes without cases as in coverage of causes with cases, and Corporate Duplicity frames, though increased in frequency, made up only one frame in seven on the Litigation-Heavy side of Diagram Four.

Considered together, the four diagrams permit us a sketchy overview of each of the over-statements at issue in this paper. Each diagram shows some gains in press coverage from litigation or settlement activities, so scorekeeping inside courtrooms or boardrooms seems to neglect some payoffs to causes that might justify even losing lawsuits. These results reinforce our arguments and findings regarding “Oversimplified Scorekeeping” earlier in this paper. Regarding “Oversimplified Emulation,” the diagrams are if anything more compelling. We ourselves oversimplify our findings for heuristic purposes:

o Implants plaintiffs and clients ran smack into scientific findings that undermined their cases and perhaps causes about as much as science aided tobacco plaintiffs and clients and statistics [on sales and distribution, for example] favored firearms plaintiffs and clients.

o Food plaintiffs and clients did not overcome the “Individual Responsibility” of consumers for selecting fast foods, junk foods, and fatty foods and could not much criminalize the marketing or distribution practices of companies that make such offerings convenient and ubiquitous.

22


Diagram Four―Use of Selected Frames in Reportage of FoodCauses and Cases in “Major Newspapers” Split by Minimal Attention


23


Corporate Duplicity


Public Costs

Governmental Responsibility

Attorneys' Fees

Individual Responibility

Fram

e D

etec

ted

800 600 400 200 0

Count

Corporate Duplicity


Public Costs

Governmental Responsibility

Attorneys' Fees

Individual Responibility

8006004002000


SUMMARY AND DISCUSSION

The whirlwind tour of four sorts of causes and cases above has, we believe, established reasons for concern about facile scoring and about simplistic copycatting, the two foci of our paper. We have uncovered evidence, however crude, that lawsuits induce coverage

24


in newspapers that confers at least some advantages on plaintiffs, victims, and crusaders against consumer ills and, perhaps more important, denigrates producers and vendors for practices irresponsible or even criminal. We have uncovered as well evidence from news paper coverage of barriers to easily adapting tactics and strategies efficacious in one issue-area to other issue-areas.

We urge readers to recall that we sampled for the tails of the distributions of relevant arti-cles. We tried to pick up a few percent of the most lawsuit-oriented and least lawsuit-ori-ented articles. As a result we cannot speak to more than 90% of all the article we might have examined. This, of course, can be seen to fortify as well as to qualify our results. The qualification is obvious: Follow-up studies will show how common the frames we have detected are near the middle of the distributions of coverage. The fortification may be less obvious: our charts and tables do not reflect the sheer quantities of frames prom-ulgated through the New York Times [our tobacco articles], “Major Newspapers” in LexisNexis academic [articles of the other three sorts], and by extension the broadcast and print media cued by or reliant on the newspapers whose coverage we have analyzed.

In addition, we have separately reviewed four policy-domains in this paper but must note overlaps that may affect the political, cultural, or social significance of our results. The most significant overlaps might be temporal. If “copycat” suits occur soon after or amid the suits they are copying, some criminalization or other denigration may build on mes-sages already suffusing the press. Our going issue-area by issue-area has advantages but may miss interactions between or among frames. We anticipate additional studies in which we shall look at timelines for each of the four issue-areas to speculate how much or how little we might attribute to the sequencing and coincidence of litigation.

For the sake of simplicity, we have not discussed another aspect of temporality in these data. Some frames are “periodized.” “Attorneys’ Fees” frames, for instance, were much ballyhooed in commentaries and comments on suits by states’ attorneys general against Big Tobacco. Once pundits and reporters started to respond to developments in tobacco causes or cases by noting which private attorneys had gotten rich on asbestos or other causes and cases, the middle to late 1990s yielded greater attention to “Attorneys’ Fees” than has been the case before or since.24 Our review of the data disclosed that “Attor-neys’ Fees” did not long endure as response, comeback, talking point, distraction, or diatribe, but we should be more comfortable with more intensive study of this matter.

Results and qualifications noted, we conclude with a fascinating possibility. Perhaps this and follow-up studies will reveal that use of litigation to further reform and regulation works far better than critics have allowed. What we found above permits the conjecture that crimtort tactics and criminalization strategies worked better in tobacco and firearms causes than in implants or food causes. Big Tobacco had systematically distorted science ―the physiology, chemistry, and psychology of nicotine―and covered up what tobacco companies knew and when they realized what they knew. Firearms companies engaged in myriad marketing practices at best irresponsible and at worst criminal. By contrast, the 24 Remind readers McIntosh and Cates note that food lawyers publicized their pro bono or nonprofit postures.

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science of silicone implants contradicted the claims of victims and trial attorneys in im-plants cases to the extent of creating overwhelming doubt that those with implants were victims of manufacturers at all, although marketing practices showed the companies and their sales staff to be remarkably uncurious and deceptive. Although McDonald’s had engaged in flat-out deceptive marketing of allegedly vegetarian fries that were blanched in beef tallow to the horror of, among others, observant Hindus, most cases involving fast foods, fatty foods, or junk foods strained credulity even if causes and concerns in general were points well taken.

Let us end this paper with a question that stirs us and, we hope, incites further researches: What if civil justice to no small extent works to supplement less jural, more political means by which to redress grievances, ameliorate problems, or moderate excesses?

REFERENCES

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Barnes, Jeb. 2007. “Bringing the Courts Back In: Inter-branch Perspectives on the Role of Courts in American Politics and Policy-Making.” Annual Review of Political Science 10: 25-44.

Bell, Peter, and Jeffrey O’Connell. 1997. Accidental Justice: The Dilemmas of Tort Law. New Haven: Yale University Press.

Bogus, Carl T. 2001. Why Lawsuits Are Good for America: Disciplined Democracy, Big Business, and the Common Law. New York: New York University Press.

Canon, Bradley C., and Charles A. Johnson. 1998. Judicial Policies: Implementation and Impact. Washington, D.C.: CQ Press (2nd Edition).

Derthick, Martha. 2005. Up in Smoke: From Legislation to Litigation in Tobacco

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. 2010. “From Litigation to Legislation in Tobacco Politics: The Surrender of Philip Morris.” APPAM Research Conference (Boston, November 5).

Feeley, Malcom and Edward Rubin. 1998. Judicial Policy-Making And The Modern

State: How The Courts Reformed America’s Prisons. New York: Cambridge University Press.

Fuller, Lon. 1978. “The Forms and Limits of Adjudication.” Harvard Law Review 92:

353-409.

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Gifford, Donald G. 2010. Suing the Tobacco and Lead Pigment Industries: Government Litigation as Public Health Prescription. Ann Arbor: University of Michigan Press.

Haltom, William, and Michael McCann. 2004a. Distorting The Law: Politics, Media,

And The Litigation Crisis. Chicago: University of Chicago Press.

. 2004b. Framing the Food Fights: How Mass Media Matter for Public Interest Litigation. Portland, Oregon: Western Political Science Association.

. 2009. “Framing Fast Food Litigation.” Fault Lines: Tort Law as Cultural Practice

Haltom, William, and Michael McCann. 2010. “Litigation, Reputation, and Vilification: How Gun Activists Cannot Lose for Winning.” San Francisco: Western Political Science Association.

Horowitz, David. 1977. The Courts and Social Policy. Washington, DC: Brookings

Institution Press. Kagan, Robert A. 2001. Adversarial Legalism: The American Way of Law. Cambridge:

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Kahan, Dan M., Donald Braman, and John Gastil. 2006. “A Cultural Critique of Gun Litigation.” Ch. 4 in Suing the Gun Industry: A Battle at the Crossroads of Gun Control and Mass Torts. Timothy D. Lytton (ed.). Ann Arbor: University of Michigan Press.

Kohn, Abigail A. 2005. Shooters: Myths and Realities of America’s Gun Cultures. Oxford University Press.

Mather, Lynn. 1998. “Theorizing About Trial Courts: Lawyers, Policymaking, and Tobacco Litigation.” Law and Social Inquiry 23: 897-940.

McCann, Michael. 1994. Rights At Work: Pay Equity Reform and The Politics Of Legal

Mobilization. Chicago: University of Chicago Press.

McCann, Michael, and William Haltom. 2004. “Framing the Food Fights: How Mass Media Construct and Constrict Public Interest Litigation.” Papers Presented in the Center for the Study of Law and Society Bag Lunch Speaker Series at the University of California, Berkeley. Paper # 19. repositories.cdlib.org/csls/lss/19; last accessed 6 March 2011.

McCann, Michael, William Haltom, and Shauna Fisher. 2009. “Criminalizing Big Tobacco: Legal Mobilization and the Politics of Responsibility for Health Risks in the United States.” Vancouver, B. C.: Western Political Science Association.

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McIntosh, Wayne V., and Cynthia L. Cates. 2010. Multi-Party Litigation: The Strategic Context. Vancouver: University of British Columbia Press.

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Policy. New York: Basic Books. Rosenberg, Gerald. 1991. The Hollow Hope: Can Courts Bring About Social Change?

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APPENDIX A

SEARCHES AND CODING OF FRAMES FOR FOUR CAUSES

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http://bsos.umd.edy/gvpt/lpbr/subpages/reviews/silverstein0809.htm

http://bsos.umd.edy/gvpt/lpbr/subpages/reviews/silverstein0809.htm

http://bsos.umd.edy/gvpt/lpbr/subpages/reviews/rosenberg1108.htm

http://bsos.umd.edy/gvpt/lpbr/subpages/reviews/peretti.htm


All searches were conducted using the LexisNexis Academic search-templates provided prior to 2006.

1. Sampling Tobacco Articles

A. Litigation

In \General News” and \Major Papers” libraries, we entered in the first search-term box the expression “tobacco or cigarette” and the “Headline, Lead Paragraph(s), Terms” in the box to the right; we used “AND” to connect to the second search-term box, into which we inserted “lawsuit or litig! or sue! or suit” while leaving “Headline, Lead Paragraph(s), Terms” in the box on the right as above. We searched only in the New York Times.

To get a total litigation sample of approximately 300, we sought 60 relevant articles from each of the 5 periods. We anticipated irrelevant articles, so we saved 75 articles from each period after LexisNexis Academic sorted hits by relevance to our search terms. We nonetheless fell short of 60 relevant articles for period one. Articles for each period were coded up until at least 60 relevant articles were found (in the order in which they were presented in Lexis Nexis after sorting for relevancy). In some cases, this means not all 75 articles were coded. In other periods, coders coded all 75 articles but fewer than 60 relevant articles were found.

B. Non-Litigation

In “General News” and \Major Papers” libraries, we entered in the first search-term box the expression “tobacco or cigarette” alongside “Headline, Lead Paragraph(s), Terms” in the box to the right; used an “AND” to connect to the second search-term box, then entered “health or cancer or risk” in “Headline, Lead Paragraph(s), Terms;" and we connected to next search-term box with an “AND NOT” into which we inserted “lawsuit or litig! or sue! or suit” alongside “Full Text." We searched only in the New York Times and within periods to achieve some temporal balance. To approximate a total litigation sample N of 300, we aimed for 60 relevant articles from each of five periods. To anticipate irrelevant articles, we saved 75 articles from each period after sorting by LexisNexis Academic relevance.

2. Sampling Firearms Articles

A. Litigation

In the “General News” and “Major Papers” libraries, we entered in the first search-term box the expression (gun or arm or weapon or firearm or handgun) w/1 (maker or manufacturer or industry) and clicked “Headline, Lead Paragraph(s), Terms” in the box to the right; we used an “AND” to connect to the second search-term box, into which we

29


inserted the expression “lawsuit or litig! or sue! or suit” alongside “Headline, Lead Paragraph(s), Terms” as above.

B. Non-Litigation

In “Lexis-Nexis Academic,” in the ”General News” and ”Major Papers” libraries, enter in the first search-term box the expression (gun or arm or weapon or firearm or handgun) w/1 (maker or manufacturer or industry) and click “Headline, Lead Paragraph(s), Terms” in the box to the right; use an “AND” to connect to the second search-term box, into which insert the expression (gun or arm or weapon or firearm or handgun) w/1 (control or regulation or law! or legislation) and leave “Headline, Lead Paragraph(s), Terms” as above; use an “AND NOT” to connect to the third search-term box, litigation or suits or lawsuits in “Full Text”.

Have “LexisNexis Academic” sort the hits by “relevance” within each period and select the appropriate number of articles to sum to 350. Excluding 48 articles from non-domestic newspapers, 303 domestic NON-litigation articles remained.

3. Sampling Silicone Implant Articles

A. Litigation

In ”General News” and ”Major Papers” libraries, we entered in the first search-term box the expression (breast) w/1 (implant or surgery or augment!) and selected “Headline, Lead Paragraph(s), Terms” in the box to the right; we used an “AND” to connect to the second search-term box, into which we inserted the expression “lawsuit or litig! or sue! or suit” alongside “Headline, Lead Paragraph(s), Terms” as above.

B. Non-Litigation

In ”General News” and ”Major Papers” libraries, we entered in the first search-term box the expression (breast) w/1 (implant or surgery or augment!) alongside “Headline, Lead Paragraph(s), Terms” in the box to the right; we used an “AND NOT” to connect to the second search-term box, into which we inserted the expression “lawsuit or lawsuits or litig! or sue! or suit!” alongside “Full Text” as above.

4. Sampling Food-Related Articles

A. Litigation

In ”General News” and ”Major Papers” libraries, we deployed the search string “(obesity OR obese) AND (fast food) AND (litig! OR lawsuit OR sue!) alongside ‘Headlines, First Paragraphs, Terms.’ ” Please note that we did not search for those key terms in the entire texts of newspaper articles.

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B. Non-Litigation

In ”General News” and ”Major Papers” libraries, we entered “(obesity OR obese) AND (fast food)” alongside “Headlines, First Paragraphs, Terms.” However, we qualified the search with the third condition “AND NOT (litig! OR lawsuit OR sue!)” alongside ‘Full Text’ rather than ‘Headlines, First Paragraphs, Terms.”

5. Tobacco-Frame Protocol:

Code Frame DescriptionIR Individual/User

ResponsibilityTobacco users and cigarette smokers are responsible for their own health. Smoking is a personal choice and people have been aware of the possible harmful effects for a long time now.

CR Corporate Responsibility Tobacco/cigarette manufacturers and sellers are responsible for properly warning consumers, providing accurate information, producing safer products, educating the public about addiction and quitting.

GR Government Responsibility

May appear in multiple forms. Government has a duty to protect citizens from and inform citizens about harmful substances. Or government has a duty to protect manufacturers from frivolous lawsuits. Or simply that government has a duty to do something about tobacco.

CD Corporate Duplicity/Disclosure

Tobacco/cigarette manufacturers knowingly concealed information regarding the potential risks associated with tobacco and cigarettes. Tobacco companies purposefully misled the public in order to addict people to their product.

SR Shared Responsibility Shared responsibility mixed in one claim – manufacturer and sellers responsible for informing the public, safety, and distribution; consumer (smoker) responsible for their own health and personal choices. This frame emphasizes both Individual Responsibility and Corporate Responsibility.

AF Attorney’s Fees and Motives

Includes the belief that monetary gain for lawyers is the driving force behind litigation.. This frame puts the focus on attorneys rather than tobacco and cigarette makers.

JS Junk Science Allegations that the science/research associated with tobacco, smoking, and second-hand smoke

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and their potential health effects is questionable, untrustworthy, unscientific, invalid, and so forth. Can be in reference to either “side” of the debate or a particular case.

GS Good Science The opposite view of junk science claims. Allegations that the science/research associated with tobacco, smoking, second-hand smoke and the associated potential health effects is sound, valid, trustworthy, and so forth.

PR Parental Responsibility Parents have the responsibility to teach their children healthy habits and about the health risks associated with smoking. This frame includes assertions that kids today are smoking because parents don’t do a good job, or because parents are irresponsible.

PC Public Costs Public costs of tobacco, cigarettes, and smoking. Public costs of smoking in medical bills and insurance must be paid by state or national government; may be raised positively or negatively.

6. Firearms-Frame Protocol:

Code Frame DescriptionIR Individual/User

ResponsibilityGun owners are responsible for safe gun handling and proper use; individual negligence and carelessness are to blame for accidents; criminals to blame for violent actions; “guns don’t shoot people, people shoot people”

CR Corporate Responsibility Firearm manufacturers and retailers are responsible for ensuring the safety, accuracy, reliability of their products; for controlling the distribution of firearms; for making/selling products suitable only for “legitimate” purposes.


May appear in multiple forms. Government has a duty to protect citizens from crime and gun violence. Or government has a duty to protect manufacturers from frivolous lawsuits. Or simply that government has a duty to do something about guns.


Firearm manufacturers/retailers knowingly engage in lax or negligent sales practices.

SR Shared Responsibility Shared responsibility mixed in one claim – manufacturer/retailer responsible for safety and

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distribution, gun owner responsible for safe handling and proper use, both at once. This frame emphasizes both Individual Responsibility and Corporate Responsibility.


Includes the belief that the real problems come from lawyers or/and money. This frame puts the focus on attorneys rather than gun manufacturers and retailers.

PC Public Costs Public costs of gun violence, treating gunshot victims . . . “nation riddled by gun violence”

RERacial causes or implications of harm by guns

Indirect or direct efforts to distinguish responsible users of guns (white) from unsafe users (minority, inner city, crimogenic). Will often go with the IR frame at top.

7. Silicone-Implant Frame Protocol:

Code Frame DescriptionIR Individual Responsibility Emphases on the elective nature of breast

implant surgery. Claims that women enjoy freedom of choice and are responsible for decisions they make regarding their bodies.

CR Corporate (or Professional) Responsibility

Manufacturers are responsible for testing products, performing clinical follow-ups on product trials, and generally ensuring the safety of products before releasing them for mass use. Also includes belief that doctors who conduct implant surgery are responsible for ensuring the safety of the procedures and products they use.


May appear in multiple forms. Includes the belief that breast implants is a public health issue and that it is the government’s responsibility to facilitate research, ensure the safety of medical devices and products, monitor the complications and illnesses women have suffered following implant surgery, and so on.


Implant manufacturers/makers and doctors who perform implant surgery are responsible for full disclosure of accurate information about products (often in connection to idea of corporate

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duplicity) – this is often a key issue. Look for allegations that implant manufacturers concealed information about potential risks associated with implants or knew (or should have known) that implants were potentially harmful and let them be used (or operated) anyways.

SR Shared Responsibility Shared responsibility mixed in one claim – producer responsible for full disclosure, and women responsible for informed decision making, both at once. This frame emphasizes both Individual Responsibility and Corporate Responsibility.


Includes the belief that the real problems come from lawyers and money. This frame puts the focus on attorneys rather than implant manufacturers/makers and plastic surgeons.

PC Public Costs Claims that breast implants are a public health issue.

JS Junk Science Allegations that the science/research associated with breast implants and their potential health effects is questionable, untrustworthy, unscientific, invalid, and so forth. Can be in reference to either “side” of the debate or a particular case. (Include a special place to mark whether the “Daubert” case is mentioned.)

GS Good Science The opposite view of junk science claims. Allegations that the science/research associated with breast implants and their potential health effects is sound, valid, trustworthy, and so forth.

F Femininity Appeals to ideals of femininity, particularly as justifications for implants. Equating femininity and what it means to be female with “real” or “natural” looking breasts of a particular size/shape.

B Bankruptcy References to the financial burden imposed on implant manufacturers (Dow, for example) by the implant lawsuits.

8. Food-Frame Protocol:

IR—Individual responsibility of specific plaintiff or consumers generally (consumers are responsible for what they eat; enjoy freedom of choice; should blame themselves for conditions they might have anticipated; tend to eat too much; usually take responsibility for their own decisions; sometimes litigate to avoid responsibility for outcome)

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CR—Corporate responsibility to consumer/plaintiff for healthy food, or offering healthy food choices/options (watch out – not the same as CORPORATE DUPLICITY below)

CD—Corporate producer responsible for full disclosure of accurate information about products (often in connection to fact of corporate duplicity) – this is often the key issue for lawsuits, not unhealthy food but deception

SR—Shared responsibility mixed in one claim – producer responsible for full disclosure, and consumer responsible for smart choice, both at once

AF—Attorneys’ fees and motives – real issue is the lawyers or/and money

PC—Public costs in medical bills and insurance must be paid by state or national government

APPENDIX B

TOBACCO COVERAGE IN THE NEW YORK TIMES

2005

2004

2003

2002

2001

2000

1999

1998

1997

1996

1995

1994

1993

1992

1991

1990

1989

1988

1987

1986

1985

1984


120

100

80

60

40

20

0

Sum

s of M

entio

ns o

f Fra

mes

120

100

80

60

40

20

0

Litigation-L

ight Sample

Litigation-H

eavy Sample

Samples

Governmental Responsibilities

Plaintiff-Preferred Frames

Defense-Preferred Frames

35


APPENDIX C

FIREARMS FRAMES BY LITIGATION-HEAVY & LITIGATION-LIGHT SAMPLES

2005

2004

2003

2002

2001

2000

1999

1998

1997

1996

1995

1994

1993

1992

1991

1990

1989

1988

1987

1986

1985

1984

1983

1982

1981

1980

1978


400

200

0

Sum

s of M

entio

ns o

f Fra

mes

400

200

0

Litigation-L

ight Sample

(n=499)L

itigation-Heavy Sam

ple (n=1701)

Samples

Governmental Responsibilities

Defense-Preferred Frames

Plaintiff-Preferred Frames

36


APPENDIX D

ALL FRAMES BY LITIGATION-HEAVY & LITIGATION-LIGHT SAMPLES

TobaccoLitigation-Light

Sample n col %


n col %

Both Samples

n col %Attorneys’ Fees 0 0% 81 6% 81 3%Corporate Deceit/Disclosures 86 8% 364 28% 450 19%Corporate Responsibility 101 10% 379 29% 480 20%Good Science 355 34% 38 3% 393 17%Governmental Responsibility 167 16% 68 5% 235 10%Individual Responsibility 85 8% 186 14% 271 12%Junk Science 58 6% 25 2% 83 4%Public Costs 103 10% 108 8% 211 9%Parental Responsibility 11 1% 0 0% 11 0%Shared Responsibility 12 1% 19 1% 31 1%Uncoded or Uncodable 69 7% 35 3% 104 4%Total 1047 101% 1303 99% 2350 99%

FirearmsLitigation-Light

Sample n col %


N col %

Both Samples

n col %Attorneys’ Fees 1 0% 78 4% 79 3%Corporate Deceit/Disclosures 49 8% 446 25% 495 21%Corporate Responsibility 143 23% 540 31% 683 29%Governmental Responsibility 152 25% 112 6% 264 11%Individual Responsibility 93 15% 252 14% 345 15%Public Costs 61 10% 273 16% 334 14%Racial Elements 1 0% 5 0% 6 0%Shared Responsibility 20 3% 17 1% 37 2%Uncoded or Uncodable 95 15% 34 2% 129 5%Total 615 99% 1757 99% 2372 100%

Silicone Breast ImplantsLitigation-Light

Sample n col %


N col %

Both Samples

n col %Attorneys’ Fees 14 2% 82 8% 96 5%Bankruptcy 18 2% 168 15% 186 10%Corporate Deceit/Disclosures 61 7% 142 13% 203 11%Corporate Responsibility 51 6% 203 19% 254 13%Femininity 131 16% 18 2% 149 8%Governmental Responsibility 30 4% 1 0% 31 2%Good Science 195 23% 262 24% 457 24%Individual Responsibility 73 9% 25 2% 98 5%Junk Science 189 23% 129 12% 318 16%Public Costs 18 2% 8 1% 26 1%Shared Responsibility 12 1% 6 1% 18 1%Uncoded or Uncodable 48 6% 49 4% 97 5%Total 840 101% 1093 101% 1933 101%

Fast, Fatty, Junk FoodsLitigation-Light

Sample n col %


N col %

Both Samples

n col %

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Attorneys’ Fees 1 0% 98 6% 99 3%Corporate Deceit/Disclosures 93 4% 193 12% 286 8%Corporate Responsibility 475 22% 463 30% 938 26%Governmental Responsibility 288 14% 62 4% 350 10%Individual Responsibility 767 36% 588 38% 1355 37%Public Costs 69 3% 17 1% 86 2%Parental Responsibility 275 13% 59 4% 334 9%Shared Responsibility 130 6% 63 4% 193 5%Uncoded or Uncodable 27 1% 8 1% 35 1%Total 2125 99% 1551 100% 3676 101%

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