The legal mobilization of victims of DES

From individual redress to the development of a collective cause, 2015

Abstract

Taking as a case study a drug that caused serious damage across large populations – diethylstilbestrol – this article offers a sociological analysis of legal mobilization by victims. It takes a two-pronged approach: on the one hand, analysing the work done by victims within and on the law; and, on the other, how the law in turn has an impact on victims – their collective and their cause – throughout the different stages of legal procedures. We highlight a constant tension between an individual’s experience of the law, marked by isolation and opacity, and the development of a “DES litigation” which plays a key role in collectivizing and publicizing a public health cause.

Introduction

Over the course of the past 30 years or so, “legal recourse” has become a major subject of political sociology in the United States and, more recently, in France. Within this broad field, the processes of juridification and judicialization must first be differentiated. As it operates in a number of different legal systems, the latter is itself a polymorphic phenomenon. In addition, work on judicialization focuses on different actors (practitioners and theoreticians of the law, stakeholders in legal cases, political personnel) and courts of varying nature and scope. In the sociology of mobilisation, the study of “legal action repertoires” has been based on investigations concerning how social causes are publicised and spread, whether this be through the use of cause lawyering or the work of victims’ associations.

While drawing on such recent work, this article offers a new perspective: we argue that “legal recourse”, rather than being merely the encounter between those fighting for a cause and the legal mechanisms at their disposal, can profoundly reshape a cause, transform the groups and individuals involved, and in turn, change the law. From an empirical perspective, we are interested in “how legal practical know-how is acquired during the course of legal proceedings”, as well as in the socio-political context framing the work of support and advocacy organisations that encourages – or prevents – recourse to the law. DES (diethylstilbestrol, marketed as Distilbène in France) was a drug prescribed to pregnant women and which caused harm to their offspring. This case allows us to examine the various uses of legal recourse, thanks to the large number of court cases and the long-lasting scandal it has provoked: since 2002, the drug has been the subject of over 90 rulings made by appellate courts and the Court of Cassation in France.

This legal corpus allows us to take a different approach than the one adopted by many existing studies on victims, which are largely split between two extremes. At one end of the spectrum, there are studies that focus on associations supporting accident and disaster victims or the victims of recurring harm: in such cases, legal action is the focal point of their collective existence. At the other end of the spectrum, there are studies that concentrate on groups that are already well organised around a cause but for whom legal mobilisation is a new element in their repertoire of action. This is largely the case for organisations that have taken legal action against potentially hazardous sites and against discrimination on the grounds of disability, union membership, or gender. Tensions between the legal repertoire and other forms of collective action have not been thoroughly studied. In this article, we further this work by studying how small support and advocacy organisations, as well as some of their individual members, express and at times adjust their complaints to enter the legal arena as victims, demanding reparations for the harm they have suffered.

Our analysis of legal action also makes a third departure from earlier works, which have traditionally dealt with the three main judicial operations separately (complaints, trials, and rulings). Where studies have focused on complaints, they have shown how specific causes prompt collectivisation and publicity, as well as how they express the plaintiffs’ shared experience of injustice. Disputes generally follow three stages: naming the harm suffered; blaming those responsible; and claiming adequate compensation. When the trial process is studied, its public dimension is often emphasised, described as producing at least a “moment of compassion”, but sometimes provoking a full-blown “scandal”. The political exploitation of trials has also been studied in depth, for example with regard to how actors invoke civil disobedience as a rationale for action when they have deemed a law illegitimate. The use of strategic litigation, where advocates of a cause bring a model case to trial in order to influence extrajudicial arenas, has likewise been analysed at length. Finally, research has been conducted on judicial rulings and the consequences of a cause’s legitimisation (or de-legitimisation) by the courts, as well as the effective realisation (or non-realisation) of individual rights. Unlike the kinds of studies mentioned above, in this article we shall describe all three stages of the DES dispute’s legal process, as well as the methods used and their individual and collective impact.

Working from the principle that the law evolves and collectives are transformed, we shall examine legal action by looking at both the experience of legal proceedings, which remains largely individual from beginning to end, and the creation of the DES legal dispute thanks to the collective accumulation of individual cases. By highlighting the tensions between the individual and collective dimensions, we can focus on the use of the law as a language and technique of action to describe how victims forge a path through existing legal structures, collectivise judicially singular cases, and strive to impart political impact and broad scope to court rulings. Looking at the production of positive law, we shall likewise demonstrate how, over the course of numerous rulings and the elaboration of jurisprudence, the law comes to define who is a victim – and consequently, creates new groups that are likely to seek legal redress. Nevertheless, we shall also see that the legal procedures in question help to compartmentalise experiences and to isolate individuals, particularly in the case of civil law proceedings in France.

Outline

Addressing a public health issue from a legal perspective

Individual legal action leads to collective litigation

Individual lawsuits combine to form “DES litigation”

Personalised evaluation and judicial standardisation

Political impact outside of the courtrooms

by Emmanuelle Fillion, sociologist and lecturer at the Maison des sciences sociales du handicap (Social Science Centre for the Disabled) – EHESP School of Public Health, and research fellow at the CRAPE (UMR 6051).
and by Didier Torny, sociologist and research director at the RiTME (UR 1323, INRA).

References

DES DIETHYLSTILBESTROL RESOURCES

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