Framed? Judicialization and the Risk of Negative Episodic Media Coverage

Abstract

Activists on the left and right have increasingly turned to the courts to make policy, raising questions about the potential risks of judicialization. One possibility is that litigation is more prone to negative episodic media coverage than alternative modes of policymaking. Using across-and within-policy area comparisons of stories about the Federal Black Lung Program, collective asbestos litigation strategies, and individual asbestos tort suits, we find that coverage becomes steadily more episodic and critical as it focuses on policy regimes that feature increasing amounts of adversarial legalism. Moreover, even the broadest coverage of asbestos litigation fails to explain why victims of asbestos turned to the courts, how powerful interests constrained their policy options, or how judges urged Congress to act. This limited and relatively critical anecdotal reporting implies that litigation may engender less favorable media coverage than its alternatives and that activists should weigh this risk when deciding to litigate. the anonymous reviewers for insights that greatly improved our analysis. Of course, any remaining errors are entirely our own.

Judicialization and Its Effects: Experiments as a Way Forward

“…They are: (1) case selection that is akin to "matching" and is supplemented with controls; (2) "as-if" randomization of the treatment; (3) identifying treatments that can be considered "dose" effects, followed by (4) "post-test" evaluations of the treatment and control conditions along a variable of interest. In an illustration of this approach, Barnes and Hevron identify two regimes (asbestos litigation and black lung compensation) that exist within a single policy area (injury compensation in the area of occupational disease) yet rely on differing levels of judicialization (Barnes and Hevron 2018). To shorten an otherwise lengthy story, asbestos compensation is a paradigmatic judicialized policy that also provides within-case variation.…”

“…An impressive body of research vividly documents judicialization in the United States (see also Derthick 1 To avoid diving headlong into the welter of terms used to describe judicialized policymaking, this article refers to the complicated and multi-faceted phenomenon of court-based policymaking as "judicialization." For a more extensive explanation of the logic behind this approach, see Barnes and Hevron (2018). 2005 ;Kirkland 2016;Sandler and Schoenbrod 2003). Scholars have also thought systematically about how to compare levels of judicialization cross-sectionally and over time.…”

“…Regardless of the efficacy of law and courts at resolving political disputes, broad agreement exists that they have deeply penetrated into American policymaking (Silverstein 2009;Kagan 2001). This "judicialization" of politics has been explored in diverse policy areas, from the administration of America's prisons (Feeley and Rubin 2000), to injury compensation (Barnes 2007;Barnes and Burke 2015;Barnes and Hevron 2018), to playground safety (Epp 2009;see additionally Farhang 2008see additionally Farhang , 2010Kagan 2001;Burke 2002;Silverstein 2009). 1 This article suggests that the time is ripe to utilize research designs-namely, experiments-that provide analytic leverage as we attempt to explore the effects of judicialization.…”

“…Broadly, there are two sets of hypotheses about judicialization's effects: (1) its effects on politics (see Barnes and Burke 2015;Barnes and Hevron 2018); and (2) its effects on attitudes (see Haltom and McCann 2004;Barclay and Flores 2017). This article suggests two prescriptions for public law scholars interested in both of these effects and provides examples of implementation.…”

“…They are inherently susceptible to "missing variable" criticisms that may proffer that unaccounted-for variables are responsible for the outcome instead of the causal variable identified in the research design. In statistical modeling, those using regression analyses to estimate the relationships among independent and dependent variables must "control" for potential alternative explanations that could be responsible for affecting the value of the outcome variable (see Barnes and Hevron 2018 for an illustration of this approach). On the other hand, survey and laboratory experiments may involve significant concessions to external validity.…”