There's an excellent column in today's Wall Street Journal on John Edwards's history of trying infant cerebral palsy cases. The piece is written by David Robinson, not the former NBA MVP (who was given a Simon Award for public service this year by the Manhattan Institute, my employer and this site's sponsor), but a 2004 Rhodes Scholar, who just happens to have cerebral palsy. Notes Robinson, "I have cerebral palsy, and it's not my doctor's fault."
Robinson writes, "John Edwards built his career suing doctors and hospitals, claiming that maternity-ward missteps caused newborns to develop cerebral palsy. The theory that doctor error is a common cause of CP was dubious when Mr. Edwards used it to win his cases, from the 1980s to the mid-1990s, and is universally rejected by experts today. . . . What is more, attacks on alleged negligence in the maternity ward may actually have hurt the quality of patient care. Many CP lawsuits, including one that Mr. Edwards describes in his book, turned on the theory that doctors could have prevented CP by ordering a cesarian section. Such suits put nonmedical pressure on doctors and hospitals to choose c-sections. In the past 30 years, the proportion of births by c-section has gone up fivefold. But a 2003 study in the American Journal of Obstetrics and Gynecology found that the rate of CP remains constant." (For a fuller discussion of the cerebral palsy cases, see our editor's Wall Street Journal column from last year, my NRO column from this winter, and back postings on overlawyered.com.)
Robinson's broader point is that Edwards's philosophy is fundamentally misshaped by his trial lawyer background, because he sees the world in terms of "victims" and "villains," i.e., that everyone in society who suffers from misfortune must have had that misfortune caused by some nefarious actor: "The real error of Mr. Edwards's approach goes beyond costs and benefits. In his world, there is an alluring symmetry between victims and villains. He writes of wanting to represent people who 'had the scales tipped' against them--and presumes, without saying so outright, that someone involved in his clients' care must have done the tipping. For a self-described religious man, he seems to allow remarkably little room for the notion that some human misfortunes are not in human power to prevent."
That, in a nutshell, describes Edwards's "two Americas" message. Having made a livelihood out of redistributing wealth in a (very inefficient) zero-sum game (and enriching himself in the process), he's utterly incapable of comprehending positive-sum games from free exchange and commerce. Thus, free trade is bad, rich people are bad, corporations are bad -- and trial lawyers are good, because they help the "victims" and punish the "villains." Such stuff may make for good Grisham novels, but it's a scary thought that this mindset could be a heartbeat away from the presidency.