chapter  5
26 Pages

Under- Estimating and Over- Estimating Litigation: How Activist Plaintiffs may Advance their Causes Even as they Lose their Cases


For more than three decades scholars and other analysts have debated whether the benefits of resorting to courts to pursue social change outweighed the costs of litigation to litigants, litigators, the economy, and society. Critics have questioned the net benefits of litigating as opposed to changing policies or practices through markets or in legislative, bureaucratic, electoral, or other non-judicial arenas (Horowitz 1977; Melnick 1983; Rosenberg 1991; Sandler and Schoenbrod 2003). Some of these criticisms have been general, systemwide if not always systematic, and even cultural (Glendon 1993; Kagan 2001). Other critiques have focused on specific cases or issues and have assessed concrete benefits and, especially, demonstrable costs (Derthick 2010a; Schuck 1986). Of course, legal scholars and practitioners have answered such questions and such questioning vigorously, especially by emphasizing advances and setbacks beyond winning or losing trials and other calculable, concrete outcomes (Bogus 2001; Feeley and Rubin 1998; Koenig and Rustad 2001; McCann 1994; Mather 1998; Rubin and Feeley 2003; Scheingold 1974; Wagner 2007). Points and counterpoints regarding appropriate uses and inappropriate abuses of courts, lawsuits, or threats of courtrooms and lawsuits have each and all enhanced our understanding of adjudication as a strategy and tactic for reform, regulation, and change as well as arenas and venues within which changes and continuities in policies and practices might be contested. These dialogues and debates, however, promote at least two temptations. The first temptation is “Scorekeeping”—a tendency to tote proximate, direct costs and benefits of verdicts, judgments, and settlements but to overlook both longer-term, more indirect ramifications of litigation and the cultural consequences of alternatives to ordinary politicking. A second temptation is “Overgeneralization”—a tendency to exaggerate the facility or capacity of litigation to re-frame issues and contests and to overlook obstacles to successful re-framing. In this chapter we review news coverage of litigation over tobacco, firearms, implants, and food to show that diminishing the responsibility of consumers by attacking the alleged irresponsibility or duplicity1 of companies is a strategy

or tactic the utility of which varies with cultural, legal, ideological, and political contexts. Our narrower objective is to urge analysts and activists alike to attend to costs and benefits both immediate and eventual, both straightforward and roundabout, and, maybe most important, both monetary and symbolic when striving to understand the culture and practice of litigation for social change. Our broader objective in this chapter is to deepen and complexify appreciation of the impacts and ramifications of litigation as tool, tactic, and strategy so that scholarly dialogue might be more complete and productive.