How Much Do Conservative Tort Tales Matter?

Abstract

Distorting the Law: Politics, Media, and the Litigation Crisis (2004) is a pathbreaking study of the shaping of legal culture in contemporary, mediasaturated societies. It focuses particularly on the construction of a predominantly negative public image of the American tort law system. With impressive research and wit, William Haltom and Michael McCann show how and why the media has spread distorted antitort tales while neglecting sociolegal scholars' more realistic portrait of the system. One consequence, Distorting the Law indicates, is that conservative tort reformers have dominated the social construction of the tort law system in the mass media, mass culture, and political debate. My purpose in this article is not to question Distorting the Law's excellent account of how that negative image of the tort system was shaped but to raise a perennial question about the relationship between popular discourse and political and legal change. What has been the impact of that politically inspired, media-amplified disparagement of the tort system? How much has it actually changed public opinion, the behavior of litigants, lawyers and juries, the substance of tort law, and the litigation process? These questions are not the central empirical focus of Distorting the Law. The questions focus more directly on concrete political and legal consequences than does the book as a whole. Yet Haltom and McCann do offer a speculative argument regarding how the prevailing constructions of civil litigation in the mass media culture matter. (Haltom and McCann 2004, 29). Those constructions matter a great deal, they say in the book's final chapter, and imply the same