Asbestos Litigation and the Failure of Commonsense Policy Reform

Jeb Barnes

"A concisely written and very accessible review. . . . which ultimately help the reader identify institutional constraints embedded within policy formation."
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In an era of polarization, narrow party majorities, and increasing use of supermajority requirements in the Senate, policy entrepreneurs must find ways to reach across the aisle and build bipartisan coalitions in Congress. One such coalition-building strategy is the “politics of efficiency,” or reform that is aimed at eliminating waste from existing policies and programs. After all, reducing inefficiency promises to reduce costs without cutting benefits, which should appeal to members of both political parties, especially given tight budgetary constraints in Washington.

Dust-Up explores the most recent congressional efforts to reform asbestos litigation—a case in which the politics of efficiency played a central role and seemed likely to prevail. Yet, these efforts failed to produce a winning coalition, even though reform could have saved billions of dollars and provided quicker compensation to victims of asbestos-related diseases. Why? The answers, as Jeb Barnes deftly illustrates, defy conventional wisdom and force us to rethink the political effects of litigation and the dynamics of institutional change in our fragmented policymaking system.

Set squarely at the intersection of law, politics, and public policy, Dust-Up provides the first in-depth analysis of the political obstacles to Congress in replacing a form of litigation that nearly everyone—Supreme Court justices, members of Congress, presidents, and experts—agrees is woefully inefficient and unfair to both victims and businesses. This concise and accessible case study includes a glossary of terms and study questions, making it a perfect fit for courses in law and public policy, congressional politics, and public health.

Table of Contents


PART I: Background

1. Today’s Challenging Legislative Environment and the Politics of Efficiency

2. The Asbestos Crisis in the United States

PART II: Case Study

3. Asbestos Litigation Reform as a “Likely” Case for the Politics of Efficiency

4. The Puzzling Politics of the FAIR Act

PART III: Implications

5. The Asbestos Case and the Politics of Efficency

6. The Asbestos Case, Institutional Change, and the Judicialization of American Policymaking


A. The Case Method and “Likely” Cases

B. Chronology of Selected Events

C. Classroom Discussion Questions

Glossary of Key Legal Terms


"A concisely written and very accessible review. . . . which ultimately help the reader identify institutional constraints embedded within policy formation."—Choice

"Barnes has produced an intriguing case study about the failure of asbestos reform amid 'the politics of efficiency,' a study admirably designed for courses in political science and public policy. This tragic failure, Barnes shows, can only be understood by attending closely to the intricate interactions among different institutions and interests in an era of sharply polarized parties."—Peter H. Schuck, Simeon E. Baldwin Professor Emeritus of Law, Yale University

"Dust-Up offers sophisticated analysis of both courts and Congress, explaining how court action affected Congress and how Congress’s failure to act influenced judicial action. This will be a great book for law and politics courses. It forces students to think about the subtleties of policymaking and how the branches interact in unexpected ways."—R. Shep Melnick, Thomas P. O'Neill Jr. Professor of American Politics, Boston College


Supplemental Materials


About the Author

Jeb Barnes is a professor and the director of graduate studies in the Department of Political Science at the University of Southern California. He is the author of Overruled? Legislative Overrides, Pluralism, and Contemporary Court-Congress Relations and coeditor of Making Policy, Making Law: An Interbranch Perspective.

152 pp., 5.5 x 8.5
7 figures, 11 tables
Jul 2011

152 pp., 5.5 x 8.5
7 figures, 11 tables
ISBN: 978-1-58901-766-5
Jul 2011

152 pp.
7 figures, 11 tables
ISBN: 978-1-58901-786-3
Jul 2011

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