Dial "O" for Outrage

Tales from The Excuse Factory's cutting-room floor

Walter Olson from the December 1998 issue

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The fact remains that Bill Clinton's lawyers would have had a better idea of what to expect from the Employment Lawsuit That Ate Washington if they'd skipped the dull theoretical treatises purporting to prove the rationality of America's litigation system and instead read through a pile of horror stories. For a model of what happens when lawyers are invited to probe for wider and wider evidence of wrongdoing, check out Cooley v. Carmike Cinemas, which reached a Tennessee federal court in 1994. Cooley, an older manager fired from a movie theater chain, had some pretty decent evidence to back up his claim of age discrimination. But just as the law fatefully defines as relevant to Paula Jones's case President Clinton's relations with all other women not his wife, so the court permitted Cooley's lawyers to start compiling a rather adventuresome dossier of the thoughts and sayings and deeds of the company's brash, 44-year-old CEO, Michael Patrick--all aimed at showing that Patrick was a bad actor when it came to the elderly, any elderly.

Duly admitted into evidence, for instance, were allegations that Patrick had once expressed fears that his sexual performance would decline as he got older (evidence, no doubt, of a propensity toward stereotyping), that he'd once complained about having to spend Thanksgiving Day with his grandmother ("I don't like to be around old people"), and that back in 1968--at the age of 18!--he'd gone to see the movie Wild in the Streets and commented, "Yeah, I believe that. Everybody over 30 years old needs to be put in a pen." Helpfully, the court opinion footnoted Leonard Maltin's TV Movies and Video Guide ("dark satire about [a] millionaire singing idol/drug pusher who is elected President after [the] voting age is lowered to 14"). It seemingly dismissed the possibility that Patrick might have reconsidered his views in the more than two decades since he'd delivered the flip remark--especially since he'd long since turned 30 himself.

In approving Cooley's $500,000 verdict, the 6th Circuit declared that such remarks "help to reveal [Patrick's] state of mind and reflect a deep-rooted, ongoing pattern"--much as Congress (in a law signed by Bill Clinton, no less) yielded to feminists' demands and agreed to expose to litigators' probes the broad sexual history of men accused of harassment, thus ensuring that a claim of unconsenting crudity (in the Jones case) could cast a relevance net wide enough to reach the president's entirely consensual relations with Monica Lewinsky, thus allowing the Jones lawyers to force him into a perjury trap.

For pretty much their whole careers, Bill and Hillary Clinton have hung out with the kind of crowd that tends to admire litigation as a wonderful engine of social progress and dismisses resistance and public outrage as a matter of mere "horror stories." Do you think they'll change their views now that it's happened to them?