Political Advances amid Litigational Defeats:
The Indirect Effects of Crimtort Causes1
William Haltom
University of Puget Sound
Michael McCann
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 advantages activists and advocates have obtained via criminalization of companies, especially
through the use of a hybridization of civil and criminal tactics and strategies called “crimtorts.” 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 reveals, in sum, both considerable potential of and considerable constraints on reform or
regulation through civil suits.
Prepared for presentation to the
Western Political Science Association
San Antonio TX
2011
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 Causes
William Haltom and Michael McCann
Western 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 temptation is “Oversimplified Scorekeeping” – a tendency to tote immediate costs and benefits
of verdicts, judgments, and settlements but to overlook the indirect ramifications of litigation and the cultural consequences of alternatives to ordinary politicking. In previous papers for the WPSA, we have presented evidence that activists have succeeded in deploying 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 successful 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 irresponsibility or duplicity3 of companies is a strategy or tactic the utility of which varies with cultural, 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 eventual, 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 benefits 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,” syntheses 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: tobacco suits, firearms suits, implant suits, and food suits. Having underscored such ramifications of civil and crimtort actions for the reputations and images of manufacturers and
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.
2
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 partook 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.
1
Political Advances amid Litigational Defeats: The Indirect Effects of Crimtort Causes
William Haltom and Michael McCann
Western Political Science Association 2011
marketers and justified our suspicions about “Oversimplified Scorekeeping,” we then
score “Oversimplified Emulation.” This we do by revealing the costs at which criminailzation 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 benefits 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 beyond 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, albeit 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 scorecard but not far enough to include some political and cultural gains that tobacco and leadpigment litigation may have yielded.7
We have profited from these concrete, seemingly calculable assessments of litigative attempts to remedy or to regulate powerful concerns. To complement such scoring, however, we have urged attention to symbolic and cultural consequences that, while less immediate, less direct, and less quantifiable, may matter greatly for politics and policies and
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).
4
Peter Bell and Jeffrey O’Connell (1997) conducted an explicitly dialogic survey of the dilemmas inherent in tort litigation, a dualistic investigation with great pertinence for litigation for social or policy change.
5
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?
2
Political Advances amid Litigational Defeats: The Indirect Effects of Crimtort Causes
William Haltom and Michael McCann
Western Political Science Association 2011
for those who would alter some status quo. While lawsuits anticipated, threatened, or
filed may focus issues, test arguments, and alter the calculations of reformers and defenders 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 wouldbe 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 underreporting of factual and legal predicates that studies of civil-justice disputes have uncovered (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 disadvantageous publicization just as it often has in aforementioned scholarship. If publicized litigation makes reformers and their causes look ridiculous, then news media radiate assessments 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 individuals should choose and take responsibility for their own choices] with characterizations 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
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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Political Advances amid Litigational Defeats: The Indirect Effects of Crimtort Causes
William Haltom and Michael McCann
Western Political Science Association 2011
especially of municipal suits against gun corporations might under those circumstances
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, misrepresentations, and frauds to advertise their wares, to camouflage their misdeeds, and to promote their images solid corporate citizens. Whistleblowers and troves of secreted documents 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 gamechanger 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 activists view as malefactors. These quasi-criminal “stylings” to some degree were fortified 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 allegations that manufacturers and marketers of tobacco products had behaved irresponsibly 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-tobacco 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
4
Political Advances amid Litigational Defeats: The Indirect Effects of Crimtort Causes
William Haltom and Michael McCann
Western Political Science Association 2011
Graph One―Plaintiffs’ Frames, Defendants’ Frames, and Governmental Frames
in Articles concerning Tobacco in the New York Times 1984-2005
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
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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Political Advances amid Litigational Defeats: The Indirect Effects of Crimtort Causes
William Haltom and Michael McCann
Western Political Science Association 2011
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 inference 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 public 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 Administration 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 became law (Layton 2009). Internal communications from Philip Morris commented on the
corporation’s concerns about the lawsuits highlighting “the deceptive practices of the industry” 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, political 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 Tobacco. Both the increasing stakes and substantive reframing of litigation arguably contributed 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 Winning,” (Haltom and McCann 2010) we found that manufacturers and marketers of
firearms had taken many hits over their dishonesty or irresponsibility in various newspapers 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. Perhaps firearms companies – far less well heeled than tobacco companies – tired of extensive fees for legal defenses. Nonetheless, defenders of the manufacturers, marketers, and
owners of firearms moved quickly to induce legislatures to ban lawsuits against firearms
interests. 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.
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.
6
Political Advances amid Litigational Defeats: The Indirect Effects of Crimtort Causes
William Haltom and Michael McCann
Western Political Science Association 2011
Graph Two― Plaintiffs’ Frames, Defendants’ Frames, and Governmental Frames
in Articles concerning Firearms in Various U. S. Newspapers 1984-2005
In each Western paper and in other researches (Haltom and McCann 2009), we have emphasized that “Individual Responsibility” frames – presumptions, expectations, or de-
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Political Advances amid Litigational Defeats: The Indirect Effects of Crimtort Causes
William Haltom and Michael McCann
Western Political Science Association 2011
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 products – declined relative to frames emphasizing the responsibilities and sometimes even
the criminal culpability of producers. Attributions of personal accountability and individuated 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 responsibilizing 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 tobacco 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 beyond 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 corporate 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 lawsuits and litigative campaigns against Big Tobacco and against far smaller makers and
11
We display line-graphs that illustrate this point in Appendix B.
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.
12
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Political Advances amid Litigational Defeats: The Indirect Effects of Crimtort Causes
William Haltom and Michael McCann
Western Political Science Association 2011
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 admonition to analysts be mistaken for advice to activists who would apply “lessons” of suits
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 implants 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 deployment 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 thinking 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 litigation
characteristics 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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Political Advances amid Litigational Defeats: The Indirect Effects of Crimtort Causes
William Haltom and Michael McCann
Western Political Science Association 2011
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 include that across causes and cases defendant manufacturers and marketers will pursue aggressive legal and legislative strategies and hardball tactics. Beyond those invariants,
sympathetic victims will sometimes advantage plaintiffs and make litigation more promising 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 distractions 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 returns 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.
For example, McIntosh and Cates’s summary characterizations of the universality or sympathy of plaintiffs 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.
13
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.
14
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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Political Advances amid Litigational Defeats: The Indirect Effects of Crimtort Causes
William Haltom and Michael McCann
Western Political Science Association 2011
Table Two―Political and Cultural Characteristics of Tobacco, Firearms,
Implants, and Food Causes and Cases16
Framing
Firearms
Tobacco
Reduce “Individual Responsibility” by nonconsent: 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.
Litigants’
Unity/Coherence
Enduring moral/policy cooperation: Big Tobacco’s
chronic challengers [health
experts, scientists, & private
lawyers] share cause with
novel challengers [kids' advocates, public officials, &
states’ AGs].
Popular Culture
Thank You for Smoking
(1995)
The Runaway Jury (1999)
“The Insider” (1999)
“Thank You for Smoking”
(2006)
vs.
Increase “Corporate Duplicity” by documenting dishonesty: phony science; perjury; confidentiality agreements & intimidation of whistleblowers.
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.
Reduce “Individual Responsibility” by focus- Temporary alliance around
ing on victims: innocents shot; accidents,
issues: police chiefs, kids
especially involving children; & public
groups, city attorneys, &
health expenses borne by taxpayers.
NAACP support specific
suits by longstanding oppoIncrease “Corporate Responsibility” via cor- nents of firearms practices or
porate misdeeds: misleading marketing;
firearms rights [e.g., the
large-volume sales; inadequate background Brady Center].
checks; willingness to get firearms to convicts; unsafe design of weapons; & willfully
vs.
inadequate policing of distribution.
Enduring alliance around
Increase “Corporate Duplicity” by cover-ups rights: NRA, longtime
& corruption: straw purchases; dealings
allies, & makers & marketers
with corrupt dealers & accommodations of
of firearms mutually commit
illegal markets; & punishing whistleblowers to rights & liberties of owner& hiding tracing data.
ship & use of firearms.
16
Thank You for Smoking
(1995)
“Thank You for Smoking”
(2006)
“Runaway Jury” (2003)
“Bowling for Columbine”
(2002)
More Guns, Less Crime
(2000)
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.
11
Silicone Breast Implants
Political Advances amid Litigational Defeats: The Indirect Effects of Crimtort Causes
William Haltom and Michael McCann
Western Political Science Association 2011
Reduce “Individual Responsibility” by refocusing attention: non-cosmetic implants;
limited information limited patients’ consent;
autoimmune & other side-effects not known
or acknowledged.
Increase “Corporate Responsibility” by shifting 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.
Fast/Fatty Foods
Reduce “Individual Responsibility” by defects in consumers’ choices: unawareness
of calories; marketing to children; evidence
of addictiveness of fast/fatty foods.
Increase “Corporate Responsibility” by
negligence/recklessness of vendors: failures 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 profiting from “attractive nuisances” that lure
children and product placements on children’s programming.
Trial lawyers and
hopeful plaintiffs but not
much of a "movement."
Science on Trial (1997)
Science/Expert opinion
divided.18
Connie Chung
“Breast Men” (1997)
Informed Consent (1997)
FDA moratorium & House
subcommittee [Ted Weiss]
hearings.
FDA processes attacked
[AfJ 11].
Plastic surgeons energetically lobby to keep implants
on market.
Ad hoc amalgam of litigators: Cross-cutting interests
among health experts concerned about obesity, nutritionists 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)
Increase “Corporate Duplicity” by
mendacity: deceptive marketing, false
advertising, or fraud [including McDonald’s
cooking “vegetarian” fries in beef tallow].
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 accomplishments of tobacco plaintiffs and cases. What advantages did emulators espy? First,
anti-tobacco activists found a way to overcome default “Individual Responsibility” framings. If smokers and chewers elected to smoke or to chew, their consent was attenuated
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.”
17
18
Alliance for Justice in “Independent Justice” [p. 4] pronounces science underlying silicone unsettled.
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Political Advances amid Litigational Defeats: The Indirect Effects of Crimtort Causes
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Western Political Science Association 2011
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 Responsibility” for advertising to minors, manipulation of levels of nicotine to keep smokers addicted, and denial that tobacco was carcinogenetic [among other perils of tobacco
consumption] especially through pseudo-science and public relations. Third, whistleblowers, documents, and discovery as part of suing yielded ample evidence of “Corporate
Duplicity:” mendacity and manipulation of information and of those who held it. Diminishing consumers’ responsibility or assumption of risk while augmenting the responsibility 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 tactics that had worked in tobacco lawsuits. Yet, even before the Heller majority constitutionalized 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 Responsibility” by way of corporate liability, responsibility, or criminality. The makers of firearms accommodated activists by practices and pronouncements easily characterized as
irresponsible or reprehensible. Unlike tobacco reformers, firearms activists faced the formidable 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 support from popular culture.
Implants Lawsuits
The obstacles that litigation over silicone breast implants had to surmount were more imposing than those overcome by tobacco and firearms activists, so emulation of “successful” litigation would demand overlooking disadvantages that burdened opponents of implants. 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 behind the other 80%. Evidence of irresponsible manufacture or marketing was slim even
before epidemiological findings began to undermine any defects or shortcomings in implants. 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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Political Advances amid Litigational Defeats: The Indirect Effects of Crimtort Causes
William Haltom and Michael McCann
Western Political Science Association 2011
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 immovable object against which food fighters could marshal no irresistible force or argument. 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. Litigators 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 compete against the lobbying and electoral clout of the NRA, which effectively deprived litigators 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 products 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 firearms and the rights of owners (Lott 2000). Legal and political mobilization against silicone implants encountered grave difficulties vilifying makers and manufacturers, especially 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.
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Political Advances amid Litigational Defeats: The Indirect Effects of Crimtort Causes
William Haltom and Michael McCann
Western Political Science Association 2011
The factors arrayed by McIntosh and Cates in Table One above may account for the inability of other causes to emulate efforts to regulate or restrict tobacco. The factors adduced 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 inveighing 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 defendant makers and marketers even when lawsuits are conspicuously unsuccessful in courtrooms and in settlement negotiations. This finding, of course, undermines “Oversimplified Scorekeeping.” Second, press coverage also bears out the differential expectations
for lawsuits regarding tobacco, firearms, implants, or foods articulated above. The reframing 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 newspapers” as grouped by LexisNexis Academic [for firearms, implants, and food issues] according 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 relevance for this paper, ordered from the frames most advantageous to defendants [“Individual Responsibility”] to those most advantageous to plaintiffs [“Corporate Responsibility” 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.
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Political Advances amid Litigational Defeats: The Indirect Effects of Crimtort Causes
William Haltom and Michael McCann
Western Political Science Association 2011
Table Three―Six Common Frames in Tobacco, Firearms,
Implants, and Food Causes and Cases
Tobacco
Individual Responsibility
Attorneys’ Fees
Governmental Responsibility
Public Costs
Corporate Responsibility
Corporate Duplicity
Total
Firearms
Individual Responsibility
Attorneys’ Fees
Governmental Responsibility
Public Costs
Corporate Responsibility
Corporate Duplicity
Total
Silicone Breast Implants
Individual Responsibility
Attorneys’ Fees
Governmental Responsibility
Public Costs
Corporate Responsibility
Corporate Duplicity
Total
Fast, Fatty, Junk Foods
Individual Responsibility
Attorneys’ Fees
Governmental Responsibility
Public Costs
Corporate Responsibility
Corporate Duplicity
Total
Litigation-Light
Sample
n
col %
85
16%
0
0%
167
31%
103
19%
101
19%
86
16%
542
101%
Litigation-Light
Sample
n
col %
93
19%
1
0%
152
30%
61
12%
143
29%
49
10%
499
100%
Litigation-Light
Sample
N
col %
73
30%
14
6%
30
12%
18
7%
51
21%
61
25%
247
101%
Litigation-Light
Sample
n
col %
767
45%
1
0%
288
17%
69
4%
475
28%
93
5%
1693
99%
Litigation-Heavy
Sample
n
col %
186
16%
81
7%
68
6%
108
9%
379
32%
364
31%
1186
101%
Litigation-Heavy
Sample
N
col %
252
15%
78
5%
112
7%
273
16%
540
32%
446
26%
1701
101%
Litigation-Heavy
Sample
N
col %
25
5%
82
18%
1
0%
8
2%
203
44%
142
31%
461
100%
Litigation-Heavy
Sample
N
col %
588
41%
98
7%
62
4%
17
1%
463
33%
193
14%
1421
100%
Both Samples
n
col %
271
16%
81
5%
235
14%
211
12%
480
28%
450
26%
1728
101%
Both Samples
n
col %
345
16%
79
4%
264
12%
334
15%
683
31%
495
23%
2200
101%
Both Samples
n
col %
98
14%
96
14%
31
4%
26
4%
254
36%
203
29%
708
101%
Both Samples
n
1355
99
350
86
938
286
3114
col %
44%
3%
11%
3%
30%
9%
100%
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
Political Advances amid Litigational Defeats: The Indirect Effects of Crimtort Causes
William Haltom and Michael McCann
Western Political Science Association 2011
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 litigation-light articles.
o Coverage of causes with few or no lawsuits worked far less vilification or criminalization 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
We note that “Individual Responsibility” held steady at 16% in each sample of coverage of tobacco
causes.
20
Although coders had “Attorneys’ Fees” frames available for coding for every article, attacks on contingency fees and lawyers’ profiting from suits against tobacco companies proliferated in the mid-1990s and
faded thereafter.
21
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Political Advances amid Litigational Defeats: The Indirect Effects of Crimtort Causes
William Haltom and Michael McCann
Western Political Science Association 2011
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 suggest 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 Tobacco.22 We turn now to more nuanced scrutiny of gains and losses in litigating for regulation 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 proplaintiff frames. When causes were covered amid cases―the Litigation-Heavy Sample
―“Science” and “Government Responsibility” frames were far less common., and “Corporate 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 Litigation-Heavy Sample. “Individual Responsibility” frames also were found far more frequently 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 enjoyment and now dared to sue companies for providing what consumers wanted. Still, Individual Responsibility and Attorneys’ Fees frames combined constitute in the LitigationHeavy 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.
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Political Advances amid Litigational Defeats: The Indirect Effects of Crimtort Causes
William Haltom and Michael McCann
Western Political Science Association 2011
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
Sample
Litigation-Light
Litigation-Heavy
Corporate Duplicity
Corporate Duplicity
Corporate Responsibilty
Frame Detected
Corporate Responsibilty
Public Costs
Public Costs
Government Responsibility
Government Responsibility
Good or Junk Science
Good or Junk Science
Attorneys' Fees & Motives
Attorneys' Fees & Motives
Individual Responsibility
Individual Responsibility
500
400
300 200
100
0
100
Count
19
200 300 400
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Political Advances amid Litigational Defeats: The Indirect Effects of Crimtort Causes
William Haltom and Michael McCann
Western Political Science Association 2011
Diagram Two―Use of Selected Frames in Reportage of Firearms
Causes and Cases in “Major Newspapers” Split by Minimal Attention
to Specific Suits versus Maximal Attention to Specific Suits
Sample
Litigation-Light
Litigation-Heavy
Corporate Duplicity
Corporate Duplicity
Corporate Responsibilty
Corporate Responsibilty
Public Costs
Frame Detected
Public Costs
Government Responsibility
Government Responsibility
Attorneys' Fees & Motives
Attorneys' Fees & Motives
Individual Responsibility
Individual Responsibility
600
500
400
300
200
100
0
100
200
300
400
500
600
Count
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
Political Advances amid Litigational Defeats: The Indirect Effects of Crimtort Causes
William Haltom and Michael McCann
Western Political Science Association 2011
Diagram Three―Use of Selected Frames in Reportage of Implants
Causes and Cases in “Major Newspapers” Split by Minimal Attention
to Specific Suits versus Maximal Attention to Specific Suits
Sample
Litigation-Light
Litigation-Heavy
Corporate Duplicity
Corporate Duplicity
Corporate Responsibility
Corporate Responsibility
Public Costs
Frame Detected
Public Costs
Government Responsibility
Government Responsibility
Science
Science
Attorneys' Fees
Attorneys' Fees
Bankruptcy
Bankruptcy
Individual Responsibility
Individual Responsibility
400
300
200
100
0
Count
21
100
200
300
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Political Advances amid Litigational Defeats: The Indirect Effects of Crimtort Causes
William Haltom and Michael McCann
Western Political Science Association 2011
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 LitigationHeavy 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 Responsibility,” 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 owing 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 overstatements 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
Political Advances amid Litigational Defeats: The Indirect Effects of Crimtort Causes
William Haltom and Michael McCann
Western Political Science Association 2011
Diagram Four―Use of Selected Frames in Reportage of Food
Causes and Cases in “Major Newspapers” Split by Minimal Attention
to Specific Suits versus Maximal Attention to Specific Suits
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Political Advances amid Litigational Defeats: The Indirect Effects of Crimtort Causes
William Haltom and Michael McCann
Western Political Science Association 2011
Sample
Litigation-Heavy
Litigation-Light
Corporate Duplicity
Corporate Duplicity
Corporate Responsibility
Frame Detected
Corporate Responsibility
Public Costs
Public Costs
Governmental Responsibility
Governmental Responsibility
Attorneys' Fees
Attorneys' Fees
Individual Responibility
Individual Responibility
800
600
400
0
200
200
400
600
800
Count
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
Political Advances amid Litigational Defeats: The Indirect Effects of Crimtort Causes
William Haltom and Michael McCann
Western Political Science Association 2011
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 articles. We tried to pick up a few percent of the most lawsuit-oriented and least lawsuit-oriented 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 promulgated 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 messages 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 “Attorneys’ 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
24
Remind readers McIntosh and Cates note that food lawyers publicized their pro bono or nonprofit
postures.
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Political Advances amid Litigational Defeats: The Indirect Effects of Crimtort Causes
William Haltom and Michael McCann
Western Political Science Association 2011
in myriad marketing practices at best irresponsible and at worst criminal. By contrast, the
science of silicone implants contradicted the claims of victims and trial attorneys in implants 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
Alliance for Justice. 2006. “Independent Justice: How Our Civil Justice System Protects Consumers and Patients in Ways the Regulatory System Does Not.”
www.afj.org/assets/resources/independentjustice.pdf; accessed 12 March 2011.
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
Politics. Washington, D.C.: CQ Press (2nd Edition).
. 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.
26
Political Advances amid Litigational Defeats: The Indirect Effects of Crimtort Causes
William Haltom and Michael McCann
Western Political Science Association 2011
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:
Harvard University Press.
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.
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William Haltom and Michael McCann
Western Political Science Association 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.
McIntosh, Wayne V., and Cynthia L. Cates. 2010. Multi-Party Litigation: The Strategic
Context. Vancouver: University of British Columbia Press.
Melnick, R. Shep. 1983. Regulation and the Courts: The Case Of The Clean Air
Act. Washington, D.C.: Brookings Institution Press.
Peretti, Terry J. 1999. In Defense of a Political Court. Princeton: Princeton University
Press.
Rabkin, Jeremy. 1989. Judicial Compulsions: How Public Law Distorts Public
Policy. New York: Basic Books.
Rosenberg, Gerald. 1991. The Hollow Hope: Can Courts Bring About Social Change?
Chicago: University of Chicago Press.
Rubin, Edward, and Malcolm Feeley. 2003. “Judicial Policy-Making and Litigation
against the Government.” University of Pennsylvania Journal of Constitutional
Law 5: 617-63.
Sandler, Ross, and David Schoenbrod. 2003. Democracy By Decree: What Happens
When Courts Run Government. New Haven, CT: Yale University Press.
Schattschneider, E. E. 1975. The Semi-Sovereign People: A Realist's View of
Democracy in America. Wadsworth.
Schuck, Peter. 1986. Agent Orange on Trial: Mass Toxic Disaster in
Courts. Cambridge, MA: Belknap Press.
Silverstein, Gordon. 2009. Law's Allure: How Law Shapes, Constrains, Saves, And Kills
Politics. New York: Cambridge University Press.
Sugarman, Stephen D. 2006. “Comparing Tobacco & Gun Litigation.” Ch. 8 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.
Wagner, Wendy E. 2007. “When All Else Fails: Regulating Risky Products through
Tort Litigation.” Georgetown Law Journal 95: 693-732.
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Political Advances amid Litigational Defeats: The Indirect Effects of Crimtort Causes
William Haltom and Michael McCann
Western Political Science Association 2011
APPENDIX A
SEARCHES AND CODING OF FRAMES FOR FOUR CAUSES
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
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Political Advances amid Litigational Defeats: The Indirect Effects of Crimtort Causes
William Haltom and Michael McCann
Western Political Science Association 2011
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
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 nondomestic 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
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Political Advances amid Litigational Defeats: The Indirect Effects of Crimtort Causes
William Haltom and Michael McCann
Western Political Science Association 2011
Paragraphs, Terms.’ ” Please note that we did not search for those key terms in the entire
texts of newspaper articles.
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
IR
Frame
Individual/User
Responsibility
CR
Corporate Responsibility
GR
Government
Responsibility
CD
Corporate
Duplicity/Disclosure
SR
Shared Responsibility
Description
Tobacco 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.
Tobacco/cigarette manufacturers and sellers are
responsible for properly warning consumers,
providing accurate information, producing safer
products, educating the public about addiction
and quitting.
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.
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.
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.
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William Haltom and Michael McCann
Western Political Science Association 2011
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
GS
Good Science
PR
Parental Responsibility
PC
Public Costs
Allegations that the science/research associated
with tobacco, smoking, and second-hand smoke
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.
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.
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.
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
IR
Frame
Individual/User
Responsibility
CR
Corporate Responsibility
GR
Government
Responsibility
Description
Gun 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”
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
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Political Advances amid Litigational Defeats: The Indirect Effects of Crimtort Causes
William Haltom and Michael McCann
Western Political Science Association 2011
simply that government has a duty to do
something about guns.
CD
Corporate
Duplicity/Disclosure
Firearm manufacturers/retailers knowingly
engage in lax or negligent sales practices.
SR
Shared Responsibility
AF
Attorney’s Fees and
Motives
Shared responsibility mixed in one claim –
manufacturer/retailer responsible for safety and
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”
RE
Racial 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
IR
Frame
Individual Responsibility
CR
Corporate (or
Professional)
Responsibility
GR
Government
Responsibility
Description
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.
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
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Political Advances amid Litigational Defeats: The Indirect Effects of Crimtort Causes
William Haltom and Michael McCann
Western Political Science Association 2011
CD
Corporate
Duplicity/Disclosure
SR
Shared Responsibility
AF
Attorney’s Fees and
Motives
PC
Public Costs
JS
Junk Science
GS
Good Science
F
Femininity
B
Bankruptcy
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
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.
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.
Claims that breast implants are a public health
issue.
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.)
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.
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.
References to the financial burden imposed on
implant manufacturers (Dow, for example) by
the implant lawsuits.
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Political Advances amid Litigational Defeats: The Indirect Effects of Crimtort Causes
William Haltom and Michael McCann
Western Political Science Association 2011
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)
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
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Political Advances amid Litigational Defeats: The Indirect Effects of Crimtort Causes
William Haltom and Michael McCann
Western Political Science Association 2011
APPENDIX C
FIREARMS FRAMES BY LITIGATION-HEAVY & LITIGATION-LIGHT SAMPLES
Litigation-Heavy Sample
(n=1701)
200
Samples
0
Litigation-Light Sample
(n=499)
Sums of Mentions of Frames
400
400
200
0
1
9
7
8
1
9
8
0
1
9
8
1
1
9
8
2
1
9
8
3
1
9
8
4
1
9
8
5
1
9
8
6
1
9
8
7
1
9
8
8
1
9
8
9
1
9
9
0
1
9
9
1
1
9
9
2
1
9
9
3
1
9
9
4
1
9
9
5
1
9
9
6
1
9
9
7
1
9
9
8
Year Article Published
36
1
9
9
9
2
0
0
0
2
0
0
1
2
0
0
2
2
0
0
3
2
0
0
4
2
0
0
5
Plaintiff-Preferred
Frames
Defense-Preferred
Frames
Governmental
Responsibilities
Political Advances amid Litigational Defeats: The Indirect Effects of Crimtort Causes
William Haltom and Michael McCann
Western Political Science Association 2011
APPENDIX D
ALL FRAMES BY LITIGATION-HEAVY & LITIGATION-LIGHT SAMPLES
Tobacco
Attorneys’ Fees
Corporate Deceit/Disclosures
Corporate Responsibility
Good Science
Governmental Responsibility
Individual Responsibility
Junk Science
Public Costs
Parental Responsibility
Shared Responsibility
Uncoded or Uncodable
Total
Firearms
Attorneys’ Fees
Corporate Deceit/Disclosures
Corporate Responsibility
Governmental Responsibility
Individual Responsibility
Public Costs
Racial Elements
Shared Responsibility
Uncoded or Uncodable
Total
Silicone Breast Implants
Attorneys’ Fees
Bankruptcy
Corporate Deceit/Disclosures
Corporate Responsibility
Femininity
Governmental Responsibility
Good Science
Individual Responsibility
Junk Science
Public Costs
Shared Responsibility
Uncoded or Uncodable
Total
Fast, Fatty, Junk Foods
Litigation-Light
Sample
n
col %
0
0%
86
8%
101
10%
355
34%
167
16%
85
8%
58
6%
103
10%
11
1%
12
1%
69
7%
1047
101%
Litigation-Light
Sample
n
col %
1
0%
49
8%
143
23%
152
25%
93
15%
61
10%
1
0%
20
3%
95
15%
615
99%
Litigation-Light
Sample
n
col %
14
2%
18
2%
61
7%
51
6%
131
16%
30
4%
195
23%
73
9%
189
23%
18
2%
12
1%
48
6%
840
101%
Litigation-Light
Sample
n
col %
37
Litigation-Heavy
Sample
n
col %
81
6%
364
28%
379
29%
38
3%
68
5%
186
14%
25
2%
108
8%
0
0%
19
1%
35
3%
1303
99%
Litigation-Heavy
Sample
N
col %
78
4%
446
25%
540
31%
112
6%
252
14%
273
16%
5
0%
17
1%
34
2%
1757
99%
Litigation-Heavy
Sample
N
col %
82
8%
168
15%
142
13%
203
19%
18
2%
1
0%
262
24%
25
2%
129
12%
8
1%
6
1%
49
4%
1093
101%
Litigation-Heavy
Sample
N
col %
Both Samples
n
col %
81
3%
450
19%
480
20%
393
17%
235
10%
271
12%
83
4%
211
9%
11
0%
31
1%
104
4%
2350
99%
Both Samples
n
col %
79
3%
495
21%
683
29%
264
11%
345
15%
334
14%
6
0%
37
2%
129
5%
2372
100%
Both Samples
n
col %
96
5%
186
10%
203
11%
254
13%
149
8%
31
2%
457
24%
98
5%
318
16%
26
1%
18
1%
97
5%
1933
101%
Both Samples
n
col %
Political Advances amid Litigational Defeats: The Indirect Effects of Crimtort Causes
William Haltom and Michael McCann
Western Political Science Association 2011
Attorneys’ Fees
Corporate Deceit/Disclosures
Corporate Responsibility
Governmental Responsibility
Individual Responsibility
Public Costs
Parental Responsibility
Shared Responsibility
Uncoded or Uncodable
Total
1
93
475
288
767
69
275
130
27
2125
0%
4%
22%
14%
36%
3%
13%
6%
1%
99%
38
98
193
463
62
588
17
59
63
8
1551
6%
12%
30%
4%
38%
1%
4%
4%
1%
100%
99
286
938
350
1355
86
334
193
35
3676
3%
8%
26%
10%
37%
2%
9%
5%
1%
101%