Courts and the Puzzle of Institutional Stability and Change Administrative Drift and Judicial Innovation in the Case of Asbestos

The institutional development literature has begun to move beyond the concept of punctuated equilibrium and consider how the forces of stability and change interact. A central theme involves drift-the shifting of the effect of stable institutions through changing circumstances. This article uses the case of asbestos injury compensation to highlight how the very features of American government that make drift likely also promise to displace it, as courts step in when Congress fails to act. The broader implication is that drift is best understood as a transitional stage of development, not a dominant mode of change, in fragmented policy-making systems with multiple access points. Keywords: institutional change; American political development; court-Congress relations Until recently, leading accounts of institutional and policy development invoked models of punctuated equilibrium, which assume that external shocks or critical junctures produce abrupt shifts that briefly interrupt extended periods of continuity (e.g., Katznelson 2003; Weingast 2002; Mahoney 2000; Pempel 1998; Collier and Collier 1991; Krasner 1988). An emerging body of work questions this view, arguing that the forces of stability and change cannot be neatly compartmentalized into historical periods. Instead, scholars must grapple with the "puzzle of institutional stability and change" the ways in which these seemingly contradictory forces coexist (e.g., Streeck and Thelen 2004; Thelen 2003, 2004; Hacker 2002, 2004, 2006; Schickler 2001; Clemens and Cook 1999; Weir 1992; see generally Orren and Skowronek 2004; Campbell 2004). In an important synthesis of this recent literature, Hacker (2004) identifies three modes of change in addition to the formal revision of rules, each of which envisages how old and new elements combine to transform the status quo. They are drift, the alteration of the effect of existing institutions on social life because of changing circumstances; conversion, the adaptation of existing institutions and policies to new ends; and layering, the creation of new institutions or policies without the elimination of existing ones. In a critical move, Hacker also posits the preconditions for each mode of change, suggesting that different policy areas and configurations of institutions should promote distinct modes of institutional development with characteristic policy trade-offs. Building on these arguments, Hacker (2004, 248) contends that, while examples of conversion and layering are not hard to find, drift has been the "most pervasive dynamic" in U.S. social policy since the 1980s. Indeed, American politics seems a virtual recipe for drift, which occurs when institutions and policies remain fixed while new risks emerge. Consistent with these conditions, the United States combines fragmented political institutions that are notoriously status quo oriented and a vibrant economy that generates waves of unforeseen risks from market shifts, technological innovations, and new products. Hacker's argument is not an academic quibble over the description of institutional and policy evolution. Drift matters. Theoretically, it forces scholars to join policy and institutional analysis and consider how shifting environments and evolving practices affect programs and policies. At the grassroots level, drift may leave ordinary people vulnerable to growing risks and uncertainties (Hacker 2006). This article uses the case of asbestos injury compensation to take a closer look at Hacker's influential typology and, along the way, examines the evolving politics of compensating victims of asbestos-related diseases. It argues that the asbestos case began as a textbook example of drift but that drift only partially captures its dynamics because courts stepped in and implemented "court-based tort reforms" - the use of existing legal procedures to create alternative dispute resolution mechanisms (Barnes 2007). This finding, it is contended, highlights a central irony in American institutional and policy development: the very features of American government that make administrative drift likely also make its attenuation possible, as the fragmented U. …