Its broad title notwithstanding, this book addresses a focused question involving the respective virtues, vices, and politics of bureaucratic versus adversary legalist modes of governance. The former operates according to formal, hierarchically determined rules and procedures that value consistency and socializing costs. The latter proceeds by privately initiated, (past) event, and bilateral litigant-focused disputes resolved by blame-assigning, triadically structured courts of law. As such, the book is part of an extensive academic literature on the pros and cons of adversary legalism. That literature was initially motivated in part by the claim that adversary legalist modes of governance were atypically prominent in the United States—allegedly to ill effect. It was subsequently fueled by the observation that the rest of the world seemed to be moving in the same direction (“judicialization”).
Since it was launched in earnest in the 1970s, this literature has become so voluminous and sprawling, and flies under so many different guises, that Jeb Barnes and Thomas Burke are concerned that it is no longer clear what we know and whose findings are relevant to whom. Not the least of the accomplishments of How Policy Shapes Politics is that in its opening chapter, the authors hack their way through this dense overgrowth, skillfully cutting, pruning, organizing, and systematizing. They then move on to the rigorous and methodical testing and assessment of that literature’s core question. This is an adjudicatory study of adjudication.
The authors approach their comparative accounting of the relative virtues, vices, and politics of bureaucratic versus adversary legalism through an ingeniously designed study of injury-compensation regimes. They justify their choice of this policy domain as a “hard case” test of the literature’s reigning understandings of adversary legalism—because injury compensation is inherently redistributive, and thus especially likely to prove highly contentious, thus confirming the literature’s conventional understandings. While this book may seem on first blush to be a case study, it is actually a painstakingly designed comparative assessment: This well-chosen policy domain provides a range of variation along an array of axes.
Barnes and Burke examine three injury-compensation regimes: Social Security Disability Insurance (SSDI), harm from asbestos exposure, and harm from vaccines. These vary by their orienting institutional structure (bureaucratic versus adversary legalist, with due recognition that no regime fully tracks ideal types) in ways that both are durable and also alter developmentally across time (inception, expansion, revision, reform, retrenchment, shifts in salience, and interaction effects involving related initiatives and institutions within the same policy environment). As such, the study is structured by cross-sectional and longitudinal comparisons. The book is anchored in intricate but clear narrative accounts of the creation and temporal evolution of each of these three injury-compensation regimes, in conjunction with well-targeted, data-driven quantitative comparisons and assessments.
Like others before them, Barnes and Burke find “sharp and clear differences between the politics of adversary legalism and the politics of bureaucratic legalism” (p. 190). Their major contribution here is to demonstrate that, in this important area at least, those differences do not track the premises of most of the current academic literature on adversary legalism. That literature, they explain, has frequently argued (asserted, even) that the turn to litigation as a form of policymaking crowds out other forms of goal-directed political participation, like lobbying and electoral and social movement mobilization. So far as injury compensation is concerned, they find that this was not the case. The literature has argued that adversary legalism is highly path dependent—it tends to lock in early policy determinations on a set course, blocking adjustment and evolution. Barnes and Burke find, however, that when it comes to injury-compensation regimes at least, adversary legalism is no more path dependent than bureaucratic legalism; indeed, consistent with patterns typical of common law evolution, it was arguably even less so. The literature has argued that adversary legalism is especially susceptible to triggering “a polarizing backlash that hinders the creation of diverse coalitions” (p. 196). Again, not true, the authors find.
The one claim of the literature for which the authors find support is that “by organizing social issues as discrete conflicts between individuals, adversarial legalism individualizes politics, undermining social solidarity.” Here, they confirm the literature’s findings, but offer a refinement by observing that adversary legalism individualizes and fractures through two chief mechanisms: distributional effects (creating “unequal, unpredictable, and unstable costs and benefits”) and blame assignment (p. 196).
This—and here the book’s title, How Policy Shapes Politics, is most apt—sparks conflict and contention. The authors’ data show that participation in hearings on adversarial legalist policies in Congress is more diverse—indeed, “a melee, in which a range of groups descend on Washington, representing a mix of business, claimants, consumer groups, legal experts, and lawyers from both sides of the payer/payee divide” (p. 46)—while that on bureaucratic legalist politics is “spikier” (p. 43) (as mapped on a radar graph) and “much more sedate” (p. 47), largely dominated by government officials, on the one hand, and claimants, on the other. These are significant, substantive findings, which any scholars writing in this area will need to assimilate or address.
Barnes and Burke devote considerable care and attention to matters of research design, measurement, and method, and the book aspires to influence on this score as well. The authors creatively collect and assess data on interest-group participation in relevant congressional hearings, as divided by type (hearings on bureaucratic politics, hearings on adversarial politics, “referral hearings,” “budgetary hearings,” and “oversight hearings” [pp. 34–35]). They make sense of that data not simply in crude terms but in ways that take into account the character of the congressional committee (as mapped by seniority, ideology, and other relevant dimensions) and the hearing’s conflictual versus consensual dynamics. And, critically, the authors do so across a 40-year time span. Departing from the atemporal assumptions of much of the empirical literature in the law and courts subfield, this book boldly confronts the public policy landscape of “downtown Tokyo” (in Karen Orren and Stephen Skowronek’s vivid metaphor)—that is, in the world as it is, with all of its temporally constituted layerings, intercurrences, interactions, and complexities (what Paul Pierson has called “politics in time”).
In significant part because the authors bring to bear both a deep, substantive understanding of the history and politics of these policy areas and of the political science of public policy more generally—they are substantively knowledgeable generalists—their measurements are much more finely calibrated than is typical of recent empirical work in the law and courts subfield, which problematically aspires to ever-greater precision in measurement through increasing technical sophistication, at the price of a decreasing substantive knowledge and conceptual facility. Barnes and Burke’s (quantitative) measurements offer an impressive contrast: They are laser guided, and a model for future (mixed-methods) empirical work in this area—and, one hopes, in others.
The authors scrupulously itemize their study’s potential limitations, including questions about generalizability. But their ambitions are grand: In concluding, they call for a new departure in the study of the politics of judicialization, characterized by precision and consistency in definitions and the broad adoption of a comparative/developmental approach (both of which, of course, they impressively model here). Their hope is that the long period during which scholars of judicialization “speak past each other rather than learning from each other’s efforts” is over, and that there will be “greater collaboration among scholars interested in studying the consequences of burgeoning judicial power” (p. 199).
While this is a book about social insurance and regulation and not about everything, Barnes and Burke ask an important question, and design and execute an exceptionally well-specified study to arrive at a new baseline with which all future research in this area will have to reckon. How Policy Shapes Politics represents a major step forward in sorting out the nature, causes, and consequences of litigation as a form of governance. Students of Congress, interest groups, political voice and representation, public policy, and the temporal dimensions of politics, moreover, will also learn a lot from this book—not least about substantively motivated and empirically sophisticated mixed-methods research design. To the extent that real-world politics can be understood scientifically, this is an impressive attempt to do it well.
