On Analyzing Legal Culture: A Reply to Kagan

© 2006 American Bar Foundation.

739

Law & Social Inquiry

Volume 31, Issue 3, 739–755, Summer 2006

Blackwell Publishing LtdOxford, UKLSILaw & Social Inquiry0897-6546© 2006 American Bar Foundation.313Original Article

Analyzing Legal CultureLAW & SOCIAL INQUIRY

On Analyzing Legal Culture: A Reply to Kagan

Michael

McCann

and

William

Haltom

We thank Robert Kagan for his thorough, gracious, and provocativecommentary on our book,

Distorting the Law: Politics, Media, and the LitigationCrisis

. Our initial intent to respond briefly was challenged by the wide scopeof his arguments and the complex ways that they do and do not addressthe core concerns of our book. Nevertheless, we have attempted to be as directand pithy as possible in our response, postponing some bigger discussionsfor another forum.

In this article, we first heartily commend Kagan’s reading of our book(Section I) in all regards but one. His summary nicely captures the manypieces of our argument. It is one of the best efforts that we have read toprovide such a summary. However, Kagan says almost nothing about our over-all process-based analytical framework that fuses those pieces together. Thisis not a small oversight, we think, for it creates the basis for translation ofour approach into a more standard positivistic and behavioral analysis—onethat is quite at odds with our own analytical approach. In particular, instru-mental actors—especially conservative tort reformers—at times are high-lighted in the review and divorced from larger institutional and ideologicalcontexts, departing from our own constructivist understanding and producingsome contentions grounded in a misreading of our argument. These featuresof the review are subtle but, we think, important and worthy of attention.

We next address (Section II) Kagan’s most developed arguments aboutthe limited “impact” of tort reformers and his more general interpretationabout cultural cross-currents at work in contemporary America. We concludethat he has shown how

Distorting the Law

might be put into conversationwith arguments that he has raised in his important book

Adversarial Legalism:

Michael McCann

is the Gordon Hirabayashi Professor for the Advancement of Citizenshipat the University of Washington.

William Haltom

is Professor of Politics and Government at the University of Puget Sound.The authors thank Robert A. Kagan for his assistance in the writing of this article.

LAW & SOCIAL INQUIRY740

The American Way of Law

(Kagan 2001), and that other scholars he hasinvoked have advanced regarding legal culture. That our book might haveimplications for others’ research is, of course, gratifying to us, and we thankhim for drawing attention to these implications. We also appreciate his frankacknowledgment that his primary concerns bypass or transcend our projectto some degree. However, it is on these substantive issues that Kagan’s tendencyto impose a positivist and behavioral reading of our work obscures both par-allels and differences in our respective projects that we would underline.

I. KAGAN’S TOUR OF

DISTORTING THE LAW

We are mostly pleased and impressed with Kagan’s clear, insightful,sophisticated summary of our book in the first section of his article. This isnot surprising, for Kagan is a leading scholar in the law and society tradition,who is very familiar with many of the issues and literatures that inform ourproject.

We are especially gratified that Kagan recognizes and respects our effortto remain above or apart from the contentious debates over tort reform thatcharacterize many other scholarly works on related subjects. Kagan recognizesthat our focus in the book is to explore and explain the evolution of thecultural narrative about hyperlexis over the last quarter century in the UnitedStates, a historical phenomenon in which the tort reform debate is just oneconstitutive element. Our book does not take a clear position about the meritsof either the contemporary U.S. tort law system or of specific proposals fortort reform. We do acknowledge that the U.S. tort system performs relativelypoorly in delivering on the promises of efficiently deterring injurers and com-pensating the injured, and we express, toward the end of the book, our viewthat judicial institutions are often not the best policymakers or forms of sys-tematic policy implementation. We offer no specific policy proposals to “fix”these problems, although in various places we note a variety of plausiblealternative

types

of policy debate that are precluded by the prevailing culturalstory and its pop tort reform kin.

With regard to tort reform itself, in our view, our most important con-tribution is to distinguish between “pop” tort reformers who dominate thepublic discourse and “serious” analysts who may have better grounded reformproposals and reasons to support them. It is clear that we find relatively littlemerit in the former, but we do not weigh the merits of the latter. Indeed,one of our central arguments is that pervasive cultural narratives about alitigation crisis largely overwhelm any serious public discussion about therelative merits, deficiencies, and desirable reforms of our tort law system, muchless about serious supplemental reform policies. The litigation crisis narrativeand pop reform undermine many public efforts to discuss compensating theinjured and regulating injurers more effectively. Our Chapter 3 explains why

Analyzing Legal Culture 741

serious scholarly engagements about the need for reform, which no doubtinclude some reforms favored by Kagan, rarely make it into our mass-mediatedpolitics. This analysis of mass legal knowledge, how it is generated, what itexcludes, and how it matters is our focus in the book. We appreciate thatKagan recognizes our primary interest in explaining popular legal knowledgeproduction and our transcendence of contemporary debates about legalreforms.

A. The Missing Conceptual Framework

While Kagan for the most part accurately reproduces our themes andthe specific pieces of our argument in his summary, he curiously overlookswhat we intended to be one of the major achievements and contributionsof the book.

1

We were interested in developing a general approach to under-standing discourse about law in mass-mediated culture, its multiple originsand dimensions, and how it matters. We thus introduced and worked throughthree dimensions of power crucial for the production of mass knowledge,what we labeled the “3 i’s”—the instrumental, institutional, and ideologicaldimensions. We meant to be very clear that our project was not to assessthe relative causal significance of these independent factors but to stress theirinterdependence. As we put it, “our particular approach . . . emphasizes that thesocial construction of legal knowledge is a complex, dynamic, multidimen-sional process” (Haltom and McCann 2004, 13). While these three dimen-sions can be distinguished analytically, each must be addressed as interrelatedparts of the same process. Therefore,

instrumental

actors matter in our account,but only as they participate in and reconstruct and contest common

ideological

norms within various

institutional

forums, including especially the mass media.In such a formulation, it makes no sense to claim that ideology matters morethan institutions or particular instrumental political advocates. No dimensionis more “real” or fundamental than the others, as they are all part of socialpractice. We did begin with an analysis of instrumental actors, both becausethat is where traditional realist analyses begin and because we thought someof the most important players—although they are important because of theirrelative ineffectiveness—were left out of most accounts. But both ideological

1. In fairness to Kagan, every reviewer must make choices about what to emphasize andwhat to deemphasize in a review. Moreover, he wrote his initial article as one of four separatecommentaries on our book presented at the Law and Society Association meetings. His originalcharge and intent was not to write a comprehensive account of our book, but rather to engageit from an angle that reflected his research interests and commitments. His article is interestingprecisely for the creative ways that he connects our book’s themes to larger questions, alternativetraditions, and challenging arguments. But, alas, every analytical angle highlights some dimen-sions and overlooks, diminishes, or distorts other dimensions of a text, especially a complicatedand ambitious text like ours.


and institutional dimensions are crucial parts of the discussion in Chapters2–4, just as instrumental actors are pivotal to discussion of mass media insti-tutions and ideological production in Chapters 5–7. Chapter 8 focuses onhow various actors maneuver within the context generated by this processof produced cultural knowledge about law, but ideology and institutionalmatters, again, are no less important to our analysis.

In these regards, we perceived our general project to build on a traditionassociated with Murray Edelman, Joseph Gusfield, and Stuart Scheingoldregarding the “symbolic politics” of legal discourse, updated by contributionsfrom contemporary media studies, cultural studies, and agenda-setting scholars.

2

Our three-dimensional model unabashedly owes a great deal to the classicmodel of power developed in the 1970s by Steven Lukes (Lukes 1974) andapplied brilliantly by John Gaventa in his classic 1980 book

Power and Pow-erlessness

. As we cite from Gaventa, “(T)he dimensions of power . . . must beseen as interrelated in the totality of this impact . . . such that each dimensionserves to re-enforce the strength of the other” (Haltom and McCann 2004,14n20). We also were influenced by many more contemporary scholarsaddressing U.S. political culture, including, most recently, James Morone(2003), George Lakoff (2002), and various analysts addressing the ideologicalpolitics of the “culture wars.” One common theme in all of these works isthe fundamentally reactionary moralism—and even absurdity—of muchAmerican political discourse and the ways in which it at once justifies andobscures—in our youth we might have said “mystifies,” but now we say “nor-malizes” and “naturalizes”—the radical inequalities of American society.

3

We attempt, finally, to connect all of these important scholarly insightsto contemporary sociolegal research about legal culture. “This book’s moregeneral subject is law and legal culture,” we state at the outset (Haltom andMcCann 2004, 10). Our general claim is that constructions of law in mass-mediated cultural forums of news media, films, novels, television, rumor mills,folk humor, etc., fundamentally shape and constitute legality and legal mean-ing, and that these constructions permeate and contribute to the constitutionof official law itself. As we put it,

Such narratives of legal practice not only take on a life of their ownin mass culture, we suggest. In addition, alluring stories that circulatein the media

about

law often pervade and profoundly reshape—or, again,

distort

—legal policymaking and ordinary legal practice itself. Accountsof disputing practices or courtroom dramas thus may vary in important

2. In this regard, we were building on but hopefully pushing further the work of othercontemporary sociolegal scholars—Stephen Daniels, Joanne Martin, and Marc Galanter (Danielsand Martin 1995; Galanter, 1996; 1998)—similarly influenced by the aforementioned scholars.

3. It is clear to us that our identification with these traditions places us at odds withKagan. His scholarship has consistently labored to identify reason, prudence, and good senseat work in the prevailing institutions of American corporate society and government.


ways among practicing attorneys, sitting judges, plaintiffs and defend-ants, scholars, news journalists, screenwriters, novelists, and even come-dians or cartoonists, but they all contribute to a complexly constructed“reality” of cultural understandings that we identify with law or legality.As such, knowledge of and about law is routinely produced, reproduced,and reconstructed through the complex circuitry of mass mediatedculture. (11)

In this regard, we intended our project to contribute to the growing bodyof cultural studies of law associated with the humanities, work that we thinkdeserves serious attention from social scientists. Moreover, we see our projectas a “logical extension of legal study that addresses commonplace knowledgeabout law in routine social interaction” (11). In particular, we set out tomake a particular contribution to, and connection with, studies of legalconsciousness. Whereas the latter traditions emphasize individual and groupconstructions of “legality” in everyday interactions, we hoped to introduce somemacrolevel analysis regarding the mass production of the broader inter-subjective context in which such constructions take place. In very shorthandterms, we were adding to the understandings about the “hegemonic” forcesthat sustain the unequal and unjust social order in which we are embedded.We are frank that we did not study how these prevailing narratives matterin individuals’ “legal consciousness,” but we hoped to generate understandingsthat could help to connect the macro, meso, and micro levels of such studies.

4

We were also quite frank that this was a self-consciously postrealist,postpositivist project in the tradition of social constructivist scholarship. Butwe were at the same time committed to a study that was theoretically andempirically rigorous. Such terms are rarely applied to the type of project thatwe undertook, but that reflects much more about the prevailing mythologiesof realist /behavioral/positivist discourse in social science disciplines than acommitment to rigor per se. That our book has won two high-profile pro-fessional awards from social science associations is extremely gratifying, inthat we have demonstrated that projects can be “respectable” and yet rejectthe prevailing epistemologies celebrated in the social science disciplines.

5

One of our primary hopes was that this general analytical framework mightserve as a template or at least catalyst to other studies about the productionof legal knowledge and narratives that figure prominently in various culturalcontexts.

4. David Engel and Laura Beth Nielsen each amplified the linkages of our study toscholarship on legal culture and legal consciousness in their presentations on the “AuthorsMeet Readers” panel for which Kagan wrote his review. We underline these points in theirabsence from this written exchange.

5. We shamelessly note that our book won the Herb Jacob Book Prize from the Lawand Society Association as well as the C. Herman Pritchett Book Prize from the Law andCourts section of the American Political Science Association.


We rehearse these theoretical foundations of our project here becausethey receive almost no recognition in Kagan’s review. This oversight notonly unwittingly diminishes our aspiration and, hopefully, our achievement.These theoretical commitments also stand in bold contrast with Kagan’s morerealist policy-oriented interests and are at the heart of his occasional subtlemischaracterizations of our analysis. As we shall soon suggest, Kagan, at variouspoints, takes issue with arguments that are not our own and other timesmisses some surprising parallels between his and our analyses. This is especiallytrue in his reading of our last chapter, which apparently sparked his mostanimated and critical challenges. In our view, Chapter 8 shifts the centralquestion from how a particular narrative developed considerable culturalpower to a more speculative inquiry into how that narrative matters in politicalinteraction, but our process-based constructivist framework remained very muchthe core approach. This point is critical to our engagements with Kagan’sspecific arguments in the remainder of this comment.

II. KAGAN’S CONTENTIONS, CHALLENGES, AND CONCLUSIONS

Having outlined both the insights and oversights in Kagan’s summaryof our book, we now turn to his specific challenges, contentions, andconclusions regarding our analysis. We emphasize again that Kagan himselffrankly and fairly acknowledges that his primary points often range beyondour concerns. “These questions are not the central empirical focus of

Distortingthe Law

” (1). In general, his line of inquiry suggests that he is far more inter-ested in developing a critique of the existing U.S. tort regime than we arein our book. But we would go further and suggest that more than the centralquestions puts distance between his article and our book. Kagan’s analysisat times mischaracterizes our study by translating it into a familiar positivist/behavioral framework that emphasizes the instrumental roles of social agents,especially conservative tort reformers, as the primary causal factors, divorcingthem from the institutional and ideological forces with which we triangulateconstructions of “common sense” about civil litigation. We will cite examplesof these tendencies as we address some of his contentions.

6

We restrict ourselves to three primary issues, each concerning therelative impact or significance of what we demonstrate about the litigationcrisis narrative. When we find that our book actually supports what Kagan posesas a challenge to us, we express our bemused agreement. When Kagan and

6. Of course, it would have been fair game for Kagan to have critically assessed and challengedour framework relative to traditional behavioral/positivist models. We would have welcomedan exchange on that score. But we already noted that he instead largely ignored our generaltheoretical approach in his summary, and later reinterpreted our account on terms closer toa preferred model of causal explanation.


we tend to conceptualize the issues at stake rather differently, our responsesraise larger issues about our fundamentally different approaches to under-standing and studying legal culture.

A. Conversion vs. Reinforcement

The general challenge advanced by Kagan is that we have exaggeratedthe impact of the manufactured common sense about a litigation crisis. Oneexpression of this criticism is that pop reform “probably reinforced existingdoubts at least as much as it lured previous tort law supporters into dissent”(Kagan 2006, 732). At the ideological level, we are in heated agreementwith him. We take it to be axiomatic that general conformity to prevailingintersubjective norms, values, and cultural logics always or almost alwaysoutpaces conversion. Common knowledge, after all, facilitates communicationamong citizens and sustains some minimal degree of routinized order. Wealso agree with Kagan that neither conversion nor reinforcement may bemeasured reliably or accurately, a point to which we return shortly. And weemphatically agree that the specific discourse privileging individual respon-sibility has a long history and is deeply ingrained in American political culture.For example, in our introductory chapter, we cite well-known studies thatput the individualistic “responsibilizing” ethic—from Tocqueville throughFoucault, Nicholas Rose, and George Lakoff—at the heart of the Americantradition. Our second chapter, focusing on tort reformers, is quite explicit:

(W)e urge appreciation of the ideological power conveyed by the valuesthey invoke as a constitutive force binding them to their audience. Afterall, the discourse of individual responsibility [and, we would add, the relatednorm of anti-paternalistic suspicion of government redistribution] iswhat Robert Bellah and his colleagues famously called the “first languageof American moral life” (1985:154). The norm was invoked by ournation’s founders, verified long ago by the incomparable French visitorTocqueville, and resuscitated in new forms repeatedly through our his-tory, most recently by both “neoconservative” and “neo-liberal” activists(Rose 1999). It is hardly surprising that, as self-appointed guardians of ourmoral heritage, tort reformers, and their conservative moralistic kin, invokea particular version of these familiar values—celebrating self-relianceand embracing an older conception of rights against the purportedlyobsessive, destructive entitlement-claiming of perpetual victims—as thecenterpiece of their campaign. (Haltom and McCann 2004, 61)

Indeed, our analysis would be far less plausible if this were not the case.Longstanding ideological currents explain how adaptable, accessible, affirmative,and thus everywhere available “pop tort” rhetoric was. We argue further thatsocial science research, lacking connection to core cultural values or norms, could


not compete with moralistic narratives in mass-mediated society. Sauce forthe academic gooses in Chapter 3—that is, that no one reads their refutationsof popular appeals and political rhetoric—is sauce for the ganders whose workKagan so eruditely recounts. When “common sense” drowns out uncommoninsights, perspicuous perspectives on every side of every issue are inundated.

Despite our general agreement, however, we find that Kagan’s term “rein-forcement” seems unduly mechanical and simplistic. After all, as we outlineat length in our opening chapter, a constructivist approach begins from thepremise that salient cultural discourses (or forms of knowledge, or ideologies)are neither closed nor static; cultural logics and norms may endure, but theydo so by being reconstructed in different ways for different purposes in differentmoments of history. This very indeterminacy, accessibility, and adaptabilitysustain the vitality of enduring discursive conventions. Such an understandingis critical to our conception of hegemonic order, which dynamically channels,tames, and absorbs as much as it represses challenges to the status quo. Andso for the individual responsibility ethic: it has been an enduring feature of theAmerican political landscape but also has marked out a diversely appropriatedand frequently contested cultural terrain.

Our scholarly interest thus concerns how the discourses of individualresponsibility have been

reconstructed and redirected

for particular ends inrecent decades, and how these particular constructions in the litigation crisisnarrative

parallel and converge

with other neoliberal and neoconservative dis-courses in the so-called modern culture wars. In short, the ethos of individualresponsibility and its linkage to distrust of litigation is old, but its specificterms of mobilization by a well-organized movement and its saturation ofmass media coverage and public discourse represent new variations on oldthemes. To sum up, we agree at some general level with Kagan’s point, butwe aim for a far more complex, subtle form of analysis regarding culturalchange than a false dichotomy between conversion and reinforcement.

Beyond ideology, moreover, we are not so convinced by Kagan’s argu-ment that “the tort system had a low reputation, with a substantial proportionof Americans,

independently

of the conservative effort to disparage the system”(Kagan 2006, 723). In the first place, Kagan here may be read to imply thatour own analysis puts most emphasis on the instrumental efforts of popreformers, which radically oversimplifies our argument.

7

More generally, our

7. Consider also this version of our argument: “(I)f the conservative tort critics havedone such a successful job in instilling a critical attitude toward the tort system in the media,the public mind, and the rhetoric of many politicians” (Kagan 2006, 712) or the claim that“the case they investigate is the conservative political campaign, beginning in the 1970s,‘to challenge, roll back, and otherwise reconstruct’ the intensified American tort law regime”(713). These lines misrepresent our book. We labored to show that this familiar “realist”argument was radically simplistic and misleading; our approach offers a far more complexmultidimensional panorama that decenters the tort reform movement’s role in producing legalknowledge.


experience in teaching students, in presenting our research to diverseaudiences, and in talking to other people suggests that most citizens knowvery little about our tort law system beyond simple tort tales. Where wouldmost people learn about developments in tort law, key concepts and categoriesat stake, and the like? They are not taught about this in school (outside oflaw school), as far as we know. We cite studies suggesting that the bulk oflegal knowledge for most people, even for elites, comes from mass media.We thus studied the media and found little content at all in the early 1980sand later content that was mostly supportive of simplistic tort tales and lawsuitcrisis homilies. Whatever etiology he would suppose for the public’s doubts,Kagan must suppose that popular doubts followed actual changes in tort lawyet preceded the campaigns to convince ordinary folk that these changeswere bad. But this temporal sequence, in which sophisticated learning wouldhave taken place, strains credulity. The primary reforms took place incre-mentally, almost invisibly in the 1960s and 1970s, while the tort reform move-ment did not rev up until the late 1970s, and mass media did not extensivelycover reform efforts until the mid-1980s. Are we to believe that the publicdeveloped sophisticated knowledge of these obscure changes before popularmedia covered such matters? No doubt some individuals actually involvedin tort litigation during the 1970s came away disturbed, but others, no doubt,came away happy, and in any case—apart from auto accidents—such involve-ment was limited to a few and inaccessible to the many except through massmedia.

8

Hence, we would expect that the tort system had virtually “no” ratherthan “low” reputation among most Americans prior to the 1980s. At theleast, Kagan’s claim evades once again our argument about the far greaterinfluence of media coverage in promoting the lawsuit crisis narrative. Thatclaim demands empirical support. Based on our study of the matter, we findthat contention implausible.

9

8. Kagan makes uncanny leaps between events that he can cite from social science studiesand what ordinary people probably know. For example, he writes that “Engel’s Sander Countyrespondents probably had some strong inkling of other morally troubling aspects of the tortsystem” (Kagan 2006, 722). He then cites various social scientific studies of disputing practicesfrom the late 1980s to 2005. How could Engel’s respondents know what studies years or decadeslater revealed? And why might we assume that anyone besides a few academic specialists andpolicy wonks would even know about those studies once published? Moreover, Engel’s ownevidence shows that the hostility to personal injury litigants thrived despite very low, stablerates of actual litigation. Engel argues that the animus against legal claiming was groundedin the nostalgic romance with a myth about a traditional moral community than never actuallyexisted. In short, Engel’s argument and evidence match our argument; indeed, Engel’s workwas an inspiration for our analysis.

9. We add one caveat here. We dwell at length in Chapter 4 on the longstanding antipathyto personal injury lawyers and to litigation generally in our culture. This clearly figures intothe power of the common sense about the lawsuit crisis. But this traditional logic, like theindividual responsibility ethos to which it is connected, had to be mobilized, reconstructed,and revitalized to generate the contemporary lawsuit crisis narrative. Analyzing the mix ofinstrumental actions and institutional processes that revitalized these ideological norms wasthe project we undertook.


We echo Kagan’s skepticism about whether reliable empirical evidencecan be generated for such a claim, but for a more fundamental reason thanKagan suggests. We doubt that we could understand or generalize about whatthe entire public, the masses, the majority, or most people in a culture thinkabout issues. As we state in the first chapter of our book, “It is importantto emphasize that our direct focus in this book is on the

mass production oflegal knowledge

rather than the variable ways in which that knowledgebecomes meaningful in the legal consciousness of variously situated citizens”(Haltom and McCann 2004, 12). While we do point to public opinion pollsat times, each time we express great caution about what we can learn fromsuch data. Our focus, instead, throughout the book is on the disseminationof knowledge by committed elites (Chs. 2–4) and, more important, by themass media (Chs. 5–7).

We do contend that this commonsense knowledge—mostly in theform of simplistic anecdotes, contemptuous moralizing, and ungroundednumbers—loads the intersubjective circuits of our cultural life. Mostcitizens are exposed to this knowledge; many are bombarded with it.But we shy away from making claims about how the mass of people reason,reflect, or act in light of this knowledge. To identify powerful currents ofknowledge circulation is not to suggest that they “mean” the same thingto all people in the same way or to the same degree in all settings.Beginning from the premise that cultural knowledge is plural, indeterminate,and diversely constructed and used by differently situated persons indifferent contexts, we find efforts to gauge some stable, identifiableestimate of “public opinion” or value structures in whole “cultures” relativelyfutile and misleading. This is a core difference between positivist behavioralanalysis of attitudes or opinions and the type of cultural study focusingon common knowledge in which we engage. We do think that this con-ventional wisdom matters a great deal, but overgeneralizing about publicopinion and presuming that popular understandings mirror elite under-standings distort the character and significance of ordinary knowledge. Weshortly will recount how we did address the issue of impact in more subtle,specific ways.

B. Why So Little Reform?

A second element in Kagan’s challenge builds on the observationthat tort reformers have actually achieved only very limited success inimposing formal reforms of tort law: “Have the conservative efforts . . .rolled back the major changes in the tort system that emerged in the1960s and ’70s? The answer is ‘no’ or ‘not very far.’ ” Tort reform hasonly “nibbled at the edge” of existing law, he adds. This seems to be thegrounds for his charge that “Haltom & McCann claim (or imply) too


much about the

impact

of the public discourse they skillfully present”(Kagan 2006, 723).

10

If we had focused on the scope and significance of changes in officialwritten law, we would indeed be guilty of claiming too much significancefor the common wisdom about hyperlexis. However, we do not attribute muchsignificance to tort reform policy success at all. As Kagan notes, we fullyacknowledge that the impact of the litigation crisis narrative has been limitedin that specific regard. Reforms were passed in all states over the last twentyyears, but they have been limited in number and reach and often undonethrough litigation orchestrated by trial lawyers. Once more, Kagan’s obser-vations match our own.

Kagan’s claim to offer an argument for

why

more far-reaching reformshave not been achieved, by contrast, takes up a question that was not impor-tant to our analysis. However, both the general types of factors and the specificfactors themselves that he offers parallel our argument in remarkable fashion.As his able summary demonstrated anew, we posited, in

Distorting the Law

,that to understand discourse and disputes about the law, analysts shouldtriangulate among the instrumental, the institutional, and the ideological.Contrast those three “i’s” to Kagan’s own proffered list (Sec. V) of variablesthat we have neglected: “material and political interests, the ‘stickiness’ ofentrenched institutional and legal arrangements, and the complex interplayof competing values.” Is there a dispute here about how scholars might explorethe question? Material and political interests (and strategies and tactics) arepretty much what we meant by instrumental forces that shaped discourse,policy, and culture. Although we did not explore at length the viscosity oflegislatures, courts, or other “legal arrangements,” we regard our analyses of“entrenched institutional” standards and practices in news media (Haltomand McCann 2004, ch. 5) along with state court rulings for trial lawyers asa contribution to understanding better that “variable.” We read Kagan’s sum-mary of our book to concede that our inquiries into ideologies underlyingpopularized arguments and appeals explored “the complex interplay of com-peting values” (Kagan 2006, 732). Thus, we are somewhat perplexed by theconclusion of his critique, which mimics our own argument that no accountof civil litigation in America would be complete without attention to theinstrumental, the institutional, and the ideological, although he does put amore positivist spin on these factors.

The more troublesome aspect of Kagan’s critique is that he seems notto recognize how and why he and we assess “impact” in very different ways,through quite different conceptual lenses. We came to realize early on inour studies that official policy change in tort law was not necessarily the

10. Of course, the reasons why the mass media participated in generating the imaginedcivil litigation crisis had little to do with journalists’ or editors’ commitments to tort reformas well. Again, our key questions in the book concern the development of the litigation crisisnarrative and its implications, both of which involve far more than tort reform.


overriding goal of pop reformers or the key consequence of the broader hyper-lexis narrative. As we try to demonstrate, leading pop reformers were drivenby a mix of material and moralistic motives, and they aimed for far largertargets than simply trimming back earlier legal reforms. Rather, they imagineda society-wide “battle of ideas,” in which the goal was to win back “popularculture” from the political Left who ostensibly had stolen it in the 1960s(Haltom and McCann 2004, ch. 2). At this point we recognized the impor-tant connection of pop reformers with other moralists in the culture wars.Their “responsibilizing” rhetoric was the same, and the menu of values andpolicy issues addressed by leading think tanks and advocacy groups joinedtort reform to assaults on the welfare state, on crime, on family disintegration,and other familiar laments. We focused analysis on just where the activistsaimed—on the battle of ideas that to a large degree transcended tort reform.This is also why we devoted the bulk of our study to mass media, the primaryforum for such ideological reproduction of public knowledge among the cit-izenry, as well as to the power of the individual responsibility ethic itselfthroughout American culture.

In Chapter 8, we took up this challenge of looking at the impact onideas. However, unlike behavioral models that focus on inert public opinionand attitudes, we were interested in ideas in action, on the maneuveringsamong ideas in specific contexts of social practice. Do these narratives ofthe lawsuit crisis, which permeate our culture, matter in actual interactions?Do people act on, or enact, them? Do these narratives play a constitutiverole in social practice, at once shaping and expressing agency? Moreover,we clearly stated that the effort was “speculative and suggestive rather thanconclusive” (Haltom and McCann 2004, 267). Our goal was to point tofuture agendas of research in this area, not to provide definitive judgments.

Our approach was very focused and specific. Following various post-structural understandings of cultural discourse, we identified two contextsof practice to consider. The first context was official political discourse by(mostly elected legislative) elites, which we subjected to the analytical scru-tiny of “agenda setting” analysis. The key insight at stake is that identifyingwhat issues matter and what debates are about represents important elementsof relational power. As such, political interaction is as much about thedefinition, deflection, diversion, and displacement of contests. And to theextent that elites “cue” political issues for ordinary citizens, agenda settingpractices are likely to matter a great deal. Building on our examples, we thuscall for more efforts to link such studies of elite agenda setting to interview-intensive studies of how ordinary citizens know and think about law, abouttheir “legal consciousness.”

The second context consisted of interactions among disputants priorto and during trials in personal injury cases. We pointed to abundant evidenceshowing how the lawsuit crisis greatly shaped the predispositions of many jurors,elevating the hurdles faced by trial lawyers and forcing palpable shifts in their


tactics. This was the locus of the “quiet” revolution in tort law, we argued,extending the classic analysis of other leading scholars (Eisenberg and Henderson1992). Moreover, we also acknowledged that jurors and judges often overcometheir negative predispositions when they hear the presentations of argumentsand evidence in specific cases. Both of these suggested routes for research provide,in our view, more dynamic, subtle, context-specific understandings of legal ideasin practice than broad generalizations about mass attitudes and opinions.

C. Cultural Contestation

Kagan also contends that we exaggerate the scope, depth, and impact ofthe litigation crisis narrative relative to competing values and narratives inAmerican life. He poses the question of whether “tort tales have displaced aliberal political agenda” (Kagan 2006, 730). Earlier in the article, Kagan invokesLawrence Friedman’s argument about the powerful ethos of a “pro tort” “totaljustice” in America, and Aaron Wildavsky’s argument about the conflictbetween “egalitarian” and “individualistic” responsibilizing values. Kagan’s pointis that we give inadequate attention to the thriving justice-oriented and egal-itarian visions in our focus on the individualistic ethos.

We begin by noting once again that we do not argue that, as he putsit, the “conservative tort law campaign . . . diverted journalistic and politicalattention from other important issues” (730). We emphasize that, while popreformers made efforts to “saturate” the news media, their instrumentalefforts account in only small part for the developing trends in media coverage.The institutional proclivities of news media business reporting practicesand ideological pull of the individualist responsibilizing ethic are evenmore important in the complex mix, we insist (see, for one example, Bennett2006).

Moreover, we hardly suggest that the responsibility ethic has goneuncontested and reigned in some unilateral, totalizing fashion. We here repriseour general approach and specific argument in the case study to illustrateour position. Our introductory chapter outlines our general theory in thisway: “(I)t is undeniable that a wide variety of legal knowledges and narrativescirculate in modern society. In fact, we identify some of the accounts aboutlaw that challenge, complicate, deepen, or undermine the significanceof the specific critical narratives about the litigation explosion and excessiverights claiming at the core of our study” (Haltom and McCann 2004, 12).

11

Indeed, the intellectual traditions by which we were guided place plurality,

11. Consider also this caveat from our conclusion: “Of course, the alleged lawsuit crisisrepresented just one narrative among many discourses supporting the contemporary corporateorder. We should be careful not to exaggerate its influence in the grander scheme of things”(Haltom and McCann 2004, 294).


indeterminacy, and contestation among discourses and discursive construc-tions at the very heart of analysis. And some of these alternative traditionscould be identified as more egalitarian in nature, although we prefer to stickto the actual language of political discourse itself.

In principle, then, we find ourselves in another warm agreement withKagan. If we differ, it is in emphasizing that ideas and norms matter only asthey are mobilized in practice; multiple cultural logics may be available withinany cultural setting to make sense of particular issues, and the interestingpuzzle for us is which logics are and are not mobilized, by whom, and to whateffect. Again, we emphasize analysis of cultural practices in specific contexts.

We follow through from these principles in development of our casestudy about the lawsuit crisis narrative. Chapter 3 critiques social scientistsfor failing to link their empirical studies to larger visions that adapt corevalues to new ends and include alternative values. Indeed, we recall thattort reform arose precisely to challenge earlier modes of “liberal” reform that“hailed law, courts, legal processes, juries, rights, and the like as the veryfoundations of justice, freedom, and other basic ideals revered in Americansociety” (Haltom and McCann 2004, 108). Chapter 4 makes a parallel caseabout trial lawyers, who know that they can invoke “silver bullet” (Haltomand McCann 2004, 128) arguments about rights to jury trial and compen-sation for injury, but are averse to taking part in public contests. Chapter6 looks for invocations of these same familiar alternative frameworks andvalues to challenge critics of the McDonald’s coffee case, but could find fewvoices. Chapter 7 does allege that the “individual responsibility” frame dom-inates political debate and media coverage, but this owes largely to the grossmismatch in resources between tobacco interests and their rivals, as well asto news framing conventions. Despite the resource imbalance, we note, trialproceedings revealed copious evidence of corporate deception that, for a brieftime in the mid-1990s, expanded attention to alternative frames of “corporateresponsibility” and “collective responsibility” in media coverage and publicattention. And Chapter 8 is all about contests over ideas. We focus on theways in which the lawsuit crisis and individual responsibility narratives havebeen mobilized to trump or neutralize specific challenges in particular settings.But these arguments are merely suggestive and we urge further study andcarefully avoid broad claims about impact.

In short, there is ample contestation in our account. If much of thiscontestation is unequal in character and outcome, we try to explain why.

12

12. This point is critical to our understanding of “hegemony,” a term that we invokewith great caution in our study. Hegemonic relations do not repress or prevent contestation somuch as shape, channel, absorb, and co-opt the contours and scope of contests so as to sustainstatus quo hierarchies. We document in the book many active challenges and challengers tothe litigation crisis narrative in American society, and we suggest even more potential foreffective challenge drawing on alternative traditions, but our primary goal is to explain how andwhy these challenges have not been more consequential in the preceding quarter of a century.


After all, the book is about the development and implications of the lawsuitcrisis narrative in a particular historical period. But we also provide plentyof leads for those who want to contemplate the contextual conditions inwhich the balance of power among narratives might shift. Finally, while atvarious points we identify alternative values that are or could be mobilizedto challenge the lawsuit crisis narrative, we do not go far in advocating anyalternative frame. “Our project is not to develop . . . challenges or counter-narratives but to anticipate some the visions that have so far been stifledby legal lore” (Haltom and McCann 2004, 10). The primary project, at stakefor us, was to interrogate the complexities of knowledge as power. In ourframework, the instrumental, the institutional, and the ideological dimen-sions of power are critical to understanding the contested character of legalculture. We leave it to another venue or other scholars to develop and assessour approach relative to those very different approaches of Friedman, Wil-davsky, and Kagan, which again would have to return to the differences inour overall process-based, constructivist approach discussed earlier in thiscomment. Suffice it to say that, as mentioned previously, such studies focusprimarily on the behavioral construct of “attitudes” rather than on knowledgeand practical consciousness, and they tend to posit whole categories of beliefsystems in conflict within culture rather than the more fractured, dynamic,fluid, indeterminate play of norms and logics presumed in our approach.American political discourses concerning “equality,” “justice,” and “individ-ualism” are complex, multilayered, interdependent, and contingent. Someversions of each norm clash, other versions merge easily, and yet otherscombine to form hybrid values in the constructions of various subjects atdifferent times. Indeed, far from identifying a basic clash among norms, moststudies of ordinary legal consciousness have found that highly individualistic,responsibility-oriented understandings of justice and equality are very com-monly articulated by nonelite and elite Americans alike (Merry 1990; Ewickand Silbey 1998).

13

We take this opportunity, finally, to add that our current NSF-fundedresearch looks more closely at the contestation over core ideas in a varietyof specific areas. Our new research question concerns how the legacy of thelawsuit crisis has influenced various types of public interest litigation regardingproducts and practices with widespread implications for public health, safety,and opportunity. Specifically, we are researching public debates and mediacoverage over litigation involving tobacco, fast food, guns, breast implants,

13. It is useful to recall, in this regard, Engel’s argument that different versions of theindividualistic ethic both support and question rights claiming practices, and these vary furtherwith different types of claims (Greenhouse, Yngvesson, and Engel 1984). Or consider SallyMerry’s classic argument about the “legal consciousness of working class Americans” (Merry1990, 199). She found that it is the mix of “individualism and egalitarian values” that leadcitizens to seek justice through litigation and to challenge local norms of family or work. Indi-vidualism grounds the justice and equality that most Americans seek, although different versionsof those norms often conflict as well (172–82).


and disabilities accommodations. Our aim again is not to take a side in thesecontests, but to use them as case studies for examining public contests overdifferent allocations of responsibility and blame—individual, corporate,collective—for securing citizen welfare. Our general hypothesis, supportedby pilot studies, is that public interest litigation does draw attention to com-peting issues of responsibility, but lawyers, plaintiffs, and lawsuits have drawnsuch negative attention from opponents and reporters that they undermineas much as advance constructive debate about the issues at stake. In short,our new case studies will, we expect, illustrate further the high hurdles facingadvocates of more “egalitarian” claims about even limited types of civil justicein the contemporary political context.

III. CONCLUSION

We thank Robert Kagan again for providing such a detailed and spiritedengagement with our book. He has forced us to rethink some dimensionsof our research that might have been framed differently and to reconstructour own understandings about what we were trying to achieve. This commentwas not easy to write, which says a lot for the intelligence of his interpretationsand challenges. This was an edifying exchange. We emerge reinvigoratedabout our commitment that rigorous cultural studies of legal knowledgeproduction and power in modern society make extremely important contri-butions to sociolegal scholarship.

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On Analyzing Legal Culture: A Reply to Kagan

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