The Mechanisms behind Litigation's “Radiating Effects”: Historical Grievances against Japan

Abstract

Scholars argue that litigation can have positive and negative “radiating” or indirect effects for social movements, irrespective of formal judicial decisions. They see litigation as a dynamic process with distinctive features yet nonetheless intertwined with advocacy in other forums. Litigation can indirectly shape collective identities, reframe debates, or provide political leverage. However, the mechanisms behind these radiating effects are poorly understood. Through an analysis of lawsuits and related activism by Korean survivors of Japanese actions in the first half of the twentieth century, this article disaggregates the mechanisms behind litigation's productive indirect effects. It theorizes and illustrates mechanisms such as attribution of similarity, brokerage, issue dramatization, political cover, and intergroup discussions. These mechanisms help us understand how litigants obtain litigation's indirect effects and thus also the broader impact of postwar compensation lawsuits in East Asia, despite few judicial victories. The article contributes non‐Western and transnational cases to scholarship on litigation's indirect effects.

Rethinking Supreme Court power in the study of judicial impact

“…Second, they show that the "compliance" approach to the study of judicial impact is fundamentally limited in two ways: (1) it can only speak to a subset of the Court's decisions, and (2) even for decisions to which it can be applied, the compliance approach can tell only a partial story of impact. 9 Third, Supreme Court decisions can have a huge range of impacts on politics and policy that radiate from, but are not directly caused by, the court exercising its power: they can increase the salience of an issue, provoke legislative or executive responses, and spur interest group or mass activism, to name just a few (see especially Arrington, 2019). I draw out each of these points below.…”

“…Compliance studies are but one type of impact study focusing on the direct outcomes of court decisions (i.e., the implementation of court orders). Impact studies more broadly, especially those conducted in the sociolegal tradition, tend to focus on the myriad downstream and indirect effects of judicial action (see, e.g., Arrington, 2019;Brigham, 1987;Sarat, 1985). This distinction highlights an important divide in the impact literature: compliance studies seek to study court power, but have typically done so in an overly narrow way; sociolegal impact studies frequently focus on policy impact, and not necessarily court power.…”

“…Rosenberg (2008) famously described the Supreme Court as a "hollow hope" for activists who seek to change policy through litigation, because, on his account, it lacks any real power to directly alter policy on the ground. A number of scholars have pushed back against Rosenberg's thesis, typically by highlighting judicial contributions to policy development in some area of policy (e.g., Feeley & Rubin, 1998;Frymer, 2003;Hall, 2011) or by focusing on downstream effects of Court action, such as spurring subsequent activism (e.g., Andersen, 2006;Arrington, 2019;Keck, 2009;McCann, 1994).…”

Introduction to the Research Handbook on Law and Courts

“…In structuring dialogue across institutions and with civil society groups, courts may sometimes reinforce democracy, rather than acting as a countermajoritarian force (Cichowski, 2007). Even losing cases may have spillovers that civil society groups value (Arrington, 2019). "[S]ilicon and electromagnetic connections" (Silbey, 2005: 358) solidify debates about courts, as they do those about other political institutions.…”

History Is Not Destiny: Colonial Compensation Litigation and South Korea–Japan Relations

“… 7 For analysis of the 2012 and 2018 Korean Supreme Court cases, see, among others, Arrington (2019); Lee and Cho (2014); Lee and Lee (2019); Nam et al (2014); Richardson (2016); Son (2019); Yamamoto et al (2019). …”