Courts and the Puzzle of Institutional Stability and Change

• Author: Jeb Barnes
• DOI: 10.1177/1065912908317028
• Date: 01 December 2008
• Published date: 01 December 2008
• Subject Matter: Articles

636

Political Research Quarterly

Volume 61 Number 4

December 2008 636-648

© 2008 University of Utah

10.1177/1065912908317028

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Courts and the Puzzle of

Institutional Stability and Change

Administrative Drift and Judicial Innovation in the Case of Asbestos

Jeb Barnes

University of Southern California, Los Angeles

The institutional development literature has begun to move beyond the concept of punctuated equilibrium and con-

sider how the forces of stability and change interact. A central theme involves drift—the shifting of the effect of sta-

ble 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 criti-

cal 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 sta-

bility 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 lay-

ering are not hard to find, drift has been the “most per-

vasive 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 frag-

mented political institutions that are notoriously status

Jeb Barnes, Associate Professor of Political Science, University of

Southern California; e-mail: barnesj@usc.edu.

Author’s Note: Thanks to Annie Barnes, Thomas F. Burke, John

Ellwood, Charles Epp, Malcolm Feeley, Howard Gillman, Robert

Kagan, Diana Kapiszewski, Thomas Keck, R. Shep Melnick, Paul

Pierson, Stephen Sugarman, Kathleen Thelen, and the editors and

anonymous reviewers at PRQ for their thoughtful comments during

various stages of this project. The author also gratefully acknowl-

edges the insights of participants in the 2005 Law & Society

Summer Institute at Oxford University,the 2005 American Political

Science conference, the 2005 and 2006 Western Political Science

Association conferences, and the 2006 workshop on institutional

change and the law at Northwestern University, where earlier ver-

sions of this work were presented. Finally, the author thanks the

Robert Wood Johnson Foundation for its generous support through

the Scholar in Health Research Program. Of course, the author is

solely responsible for any errors that survived these fine scholars’

attempts at correction.