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What lies beneath the asbestos crisis

What Lies Beneath the Asbestos Crisis
USC Dornsife associate professor Jeb Barnes discusses congressional efforts to reform asbestos litigation in his recent book.

When thousands of workers filed lawsuits against employers in search of asbestos injury compensation, Congress planned to create a national social insurance program for asbestos claims but failed.

A new book written by USC Dornsife College of Letters, Arts and Sciences professor Jeb Barnes unscrambles the complexities of the congressional inactivity – not by analyzing specialized government departments but by probing how the various branches interact.

Understanding Congress’ failure to act will come by recognizing how developments in the courts – whether the recognition of new rights or novel uses of existing procedures such as Chapter 11 reorganizations – shape the interests of stakeholders and affects how rules and policies are modified. That’s the assertion made in the book Dust-Up: Asbestos Litigation and the Failure of Commonsense Policy Reform (Georgetown University Press, 2011).

“Asbestos litigation is the poster child for all that’s wrong with the American litigation system and yet Congress has failed to take action,” said Barnes, associate professor of political science at USC Dornsife. To solve this puzzle, he supports an interbranch perspective, which purports American politics and policymaking emanate from ongoing interactions among all branches and levels of government and courts.

For seven years, Barnes investigated Congress’ failure to reform asbestos litigation in the United States, a move that could have saved billions of dollars and provided quicker compensation to victims of asbestos-related diseases. The United States has dealt with the asbestos crisis since the late 1960s when those afflicted by the mineral fiber turned to the courts in search of compensation. Courts have since designed a system that allows businesses individually to file Chapter 11 bankruptcies to exit the tort system. Consequently, some businesses are being sued while others are able to sidestep lawsuits.

Through an interbranch perspective, Barnes determined litigation makes building reform coalitions difficult, as the winning businesses in litigation fight to preserve the status quo while the losers fight for change, resulting in an impasse among the key stakeholders.

“What surprised me was the direct impact that litigation had on people’s position in lobbying,” he said. “There were some companies that, before they filed bankruptcy, went to Capitol Hill and vigorously argued for Congress to replace asbestos litigation, and after filing bankruptcy, they are some of the biggest opponents of it.”

Barnes determined that plaintives who have asbestos-related diseases and achieve favorable results in court are not likely to support replacing litigation, whereas those who fear they may not be successful in the courtroom likely will support the creation of a payment structure. Litigation creates a complex mix of winners and losers and makes building reform coalitions very difficult, he said.

“The standard story of American politics is that Congress is gridlocked,” Barnes said. “I found that Congress may be gridlocked for reasons other than just party polarization in that the process of litigation may fragment stakeholder interest. But equally important is that congressional inertia has spurned judicial innovation.

“The standard story of nothing gets done in Washington does not mean that we are not making policy. But it does mean that policy is being made by branches of the government, such as courts and agencies that are often invisible to the public.”

Classic examples, he said, are when businesses being sued use bankruptcy funds to create asbestos compensation trusts. The trusts significantly have changed who pays and to whom, and how much is paid. But the compensation trusts hardly have made front-page news.

Barnes’ fascination with the various branches of government was sparked as a child when he listened to his parents’ lively conversations as the Watergate scandal unfolded on television. The political debates sparked a lifelong curiosity in Barnes. Since 1994, the Boston native has examined how courts shape American politics and policymaking.

“Living in a household where two perspectives were presented affected my drive to see things from multiple perspectives,” Barnes said. “I really do value arguments and counterarguments and trying to see things from the other side.”

Rather than study specific courts individually, Barnes said taking a holistic view of branches of courts provides a more complete understanding of the system.

In 1994, Barnes left his position as a commercial litigator to pursue a doctorate in political science at the University of California, Berkeley, where he dedicated his studies to understanding how lobbying and litigation interact.

Barnes’ holistic approach to the study of politics and the judicial system is a central theme in his research and transcends into the classroom. Since his arrival at USC Dornsife in 2001, he has taught classes in law and public policy; the theory and practice of American democracy; and special interest group politics. This spring, he will teach the First-Year Investigations (FYI) interdisciplinary course, “The Art of Political Bargaining.” In that course, freshmen will learn how to bargain for a collective – and sometimes individual – advantage in politics.

Students will represent specific political parties and negotiate in an attempt to resolve an issue and gain the upper hand over other parties through various class exercises meant to show how Congress, the courts and branches of government interact and intersect.

“Part of the USC Dornsife mission is to make the case to students that, in order to understand the world, you have to understand it from a variety of perspectives,” he said. “If you really want to understand political bargaining, you have to understand something about history, law, economics and psychology – and of course politics and institutions.”

A broader knowledge of the intricate government and courts systems better prepares students who hope to make an impact.

“I want to provide students with a better understanding of how to make a difference through the American political process,” Barnes said. “There are tremendous opportunities to make change, but you have to understand it is a complicated, three-dimensional chess game.

“There are many entries into the political process.”

Barnes is at work on a forthcoming book that will examine how litigation shapes politics and helps guide political scientists and educators in their study of the fields of politics and law.

“Hopefully,” Barnes said, “by gaining a holistic perspective on politics, scholars will be encouraged to broaden their outlook on how to study American policymaking.”

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