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BOOK REVIEWS
A. Scott Catey
University of Florida
Distorting the Law: Politics, Media, and the Litigation Crisis
William Haltom and Michael McCann (Chicago: University of Chicago Press, 2004)
The postwar “legalist reformation” in America entailed the turn to rights-based claims
midcentury and significant changes to existing civil law (Nelson 2001). These changes
included tort law, as courts took the initiative in the New Deal era to broaden reme-
dies, increase accountability, lower procedural barriers, and generally increase access
to litigation and redress for social injustices. This expansion of legal instruments and
legal agency, and the optimism for rule-based solutions to perduring social problems,
spawned a counter-movement of “too much law” characterized by an idiom of “liti-
gation crisis” and alarmist tort reform rhetorics. This latter narrative, which Galanter
(2006) calls the “jaundiced view” of law, is presently a reigning legal common sense
in the U.S. As such, it continues to shape legal culture and legal consciousness. In
Distorting the Law, Haltom and McCann contend that this common sense assumes
“an ‘epidemic’ of civil litigation, a surfeit of rights claiming, and a legal system
run amok” (p. 6). This conventional wisdom of excessive American litigiousness,
capricious use of the law by greedy plaintiffs, and unscrupulous lawyers is the object
of this book. Haltom and McCann ask how this logic has been created, sustained,
and reified despite much evidence to the contrary. Their retort is a compelling crit-
ical assessment of the role of media, public intellectuals, policy and business elites,
and the general public in the ascendancy and hegemony of the “litigation crisis”
narrative.
Distorting the Law is an important contribution to our understanding of the multi-
dimensional relations between law, politics, and society. The authors’ adopt a social
constructionist account which explicitly cognizes social practice and which artic-
ulates a theory-driven analysis informed by a deeply empirical sensibility. Haltom
and McCann examine three general analytical dimensions in order to fill out their
constructionist account: the instrumental, the institutional, and the ideological. The
instrumental dimension takes account of the texts, scripts, discourses, and strategic
activities of three primary interest-oriented groups of actors: “populist tort reform-
ers,” “the plaintiffs’ bar,” and “realist sociolegal scholars” (pp. 15–16). The institu-
tional dimension focuses on the reporting conventions of the media that shape ideas
about the legal system and legal practice. The ideological dimension examines the
primacy of individualist cultural logics and moral expectations of personal respon-
sibility. These dimensions are not discrete but are rather triangulated elements of
social activity that operate to create and sustain some narratives, while foreclosing
or marginalizing others. This triangulation shapes the book’s general argument that
PoLAR: Political and Legal Anthropology Review, Vol. 32, Numbers 1, pps. 124–155. ISSN
1081-6976, electronic ISSN 1555-2934. C
2009 by the American Anthropological Association.
All rights reserved. DOI: 10.1111/j.1555-2934.2009.01027.x.
May 2009 Page 125
“simplistic narratives disseminated by policy-driven tort reformers have at once rein-
forced and been reinforced by everyday news reporting along with enduring ideolog-
ical commitments endorsing individual responsibility and disparaging legalistic state
paternalism” (p. 24).
In this general argument, Haltom and McCann focus on the mass media, espe-
cially print media, as a key participant in the construction, circulation, and dis-
semination of legal lore and legal knowledge. They assert that “knowledge of
and about law is routinely produced, reproduced, and reconstructed through the
complex circuitry of mass-mediated culture” (p. 11). They do not assert that re-
porters and journalists are intentionally complicit with pop tort reformers, however;
rather, they demonstrate the multilayered ways in which the instrumental claims
of reformers and pundits are reinforced and reproduced through the institutional
constraints of news reporting: norms and conventions, coverage selection, formu-
las and routines, and the pressures of information gathering and deadline-driven
presentation. This confluence of instrumental and institutional concerns is supple-
mented by and reaffirms cultural tendencies of law avoidance, romantic notions of
communal harmony, rhetorics of minimal state action, and the ethic of personal
autonomy.
Distorting the Law constitutes a critical contribution to our understanding of the role
of media in the construction and dissemination of legal knowledge. It also informs us
regarding the development of legal consciousness and legal culture in America. For
this reason alone it is a significant addition to the law and social science literature.
Haltom and McCann appreciably extend the significance of the text, however, in
their specific examination of the historical development of the litigation crisis nar-
rative, its current salience, and the concomitant tendency to locate responsibility for
manifold social ills with this putative crisis. One of their central insights is the deep
connection between the logics and moral convictions of tort reform with broader
sociopolitical debates (“culture wars”) in the United States. They maintain that the
pop reformers’ anecdotal and hyperbolic portrayal of the civil law’s failings has “nar-
rowed the discursive terrain of politics” by asserting and reinforcing the expectations
for personal accountability and moral normativities (p. 282). This narrowing not only
implicates the legal commonsense, but also affects inclusive social justice efforts, the
transformation of social hierarchies and social relations, democratic politics, and the
overall functioning of the polity. Their discussion of the instrumental, institutional,
and ideological aspects of legal knowledge production imbricates wider sociopo-
litical venues in which law, mass media, and popular culture are embedded. This
contention is central to the book, and the authors’ discussion adeptly navigates the
politics and discursive frames of the “culture wars.” In addition, the authors examine
disciplinary concerns within the contemporary law and social science community,
regarding, for example, the divisions between realist and constructionist efforts to
understand the relations between law and the social. The book deserves a wide read-
ing by law and society scholars, policy elites and public intellectuals, and the general
public.
Page 126 PoLAR: Vol. 32, No. 1
The claims advanced in the book are thoroughly researched, the theoretical appara-
tus and conceptual categories are sophisticated, and the evidence deployed is clear,
convincing, and substantial. The book is a disciplined accounting of extant problems
which beset current cultural and political struggles in the United States, as well as
those within the academy and the various disciplines of law and society scholarship.
The authors clearly have a stake in the debates and have adopted a position based
on their meticulous scholarship and detailed analysis. The text is not a polemic and
there is no simplistic vilification of any particular group or narrative. Haltom and
McCann are deeply committed to the norms of scholarly rigor and validity; their col-
laboration has created a very strong merger of realist and constructionist preferences
and analysis. Their epistemological and methodological cooperation is mirrored in
their datasets and the writing of the text itself. They deploy an extraordinary quanti-
tative content analysis of more than 20 years of tort litigation coverage gleaned from
leading newspapers, complemented by in depth case study analysis of two leading
“tort tales”: Stella Liebeck’s “McDonald’s coffee” suit and recent tobacco litigation.
In keeping with the standards of quality social scientific research, expectations of
replicability, and interpretive dissent, the authors have designed and maintain a web-
page (www.lawslore.info) that houses their quantitative data and statistical analyses,
further information on the case studies they include in the text (plus others besides),
and additional material on each chapter of the text. It is more or less constantly under
construction, and is worth perusing. It is an excellent source for teaching; I have
had students examine and evaluate their data to very successful effect in my own
Anthropology of Law course.
While Haltom and McCann do not intend to articulate an encompassing strategic
alternative to the tort reform agenda and discourse, they do note the ways that
opposition agents among the plaintiffs’ bar and the realist social science community
have failed to make significant inroads in the public debate. In addition, the final
chapter moves beyond the theorizing of the social construction of legal knowledge to
address its mobilization “in identifiable, consequential social practices by variously
situated citizens” (p. 270) and the “mobilized bias” of agenda setting (p. 271). This
discussion of the mobilization of legal knowledge is an important aspect of the
book that should receive attention from researchers and teachers of law and social
science.
References Cited
Galanter, Marc
2006 In the Winter of Our Discontent: Law, Anti-Law, and Social Sci-
ence. Annual Review of Law and Social Science 2:1–16.
Nelson, W.E.
2001 The Legalist Reformation: Law, Politics, and Ideology in New
York, 1920–1980. Chapel Hill: University of North Carolina Press.
