Selective Liability

Bill and Hilary Clinton emerged from a Yale Law School milieu that admired litigation as the remedy for practically every social ill and assumed that the more people could be persuaded to assert their rights in court, the better off society would be — what some of us call the invisible-fist theory. In office, they proceeded to lend a hand as some of their supporters in the organized plaintiffs bar established themselves as the richest and most powerful lawyers in history, setting up as a “fourth branch” of government and recycling tobacco-fee fortunes into assaults on gunmakers, HMOs, Microsoft, and dozens of other targets. At the same time, on a personal level, the Clintons themselves were coming to experience the intense miseries of destructive litigation — an ordeal through which they set a very poor example of how to behave, and from which they appear to have learned precisely nothing.

The most visible service Bill Clinton has performed for the Fourth Branch — his willingness to veto almost any tort-reform measure that reaches his desk — actually counts as relatively insignificant in the overall scheme of things, at least as compared with the services his administration has rendered behind the scenes. The Los Angeles Times and other publications, for example, have reported that the “sharp turnaround” in the Justice Department’s views on the propriety of a federal tobacco suit resulted from a “behind-the-scenes lobbying campaign” that got its start in mid-1998, when four trial lawyers marched into the White House for the first of a series of meetings: They were Richard Scruggs, John Coale, Michael Moore, and Hugh Rodham, who happens to be Hillary Rodham Clinton’s brother. (Rodham, though low on relevant experience, had been cut into the tobacco litigation after a rival trial lawyer vowed not to be “out-brother-in-lawed” by Scruggs, who happens to be married to Trent Lott’s sister.) The White House then twisted the arms of Justice Department careerists who’d warned that the feds did not have a good case, given the retroactive nature of the contemplated legal principles and the unlikelihood of succeeding in portraying the U.S. government as having been fooled about the health effects of smoking.