Jonathan Wilson is an
Atlanta attorney with more than 19 years of experience guiding growing private and public companies. He currently serves
as the outside general counsel of several companies and is the former general counsel of Web.com.com (NASDAQ: WWWW) and EasyLink
Services (NASDAQ: ESIC). He is also the founding chair of the Renewable Energy Committee of the American Bar Association's
Public Utility Section.
Sunday, July 31, 2005
8:19 am edt
As much as I'd like to continue my debate with Ted Frank, I'll be travelling this week and not blogging.
If you're looking for something to read, may I suggest a good book
Constitutional Model for Questioning Judicial Nominees
8:08 am edt
Ted Frank writes a persuasive piece
in response to my post
He pulls together an impressive list of examples to suggest that public involvement in the judicial confirmation process
is not as unprecedented as I first thought.
Even so, I cannot help but wonder if it is healthy.
The point of the citation I made to Hamilton's Federalist 76
was that a judicial appointment made by an individual President was more likely to bring with it a considered judgment as
to the appointee's credentials and character than was a "group" appointment made by the Senate.
Hamilton's argument was that an appointment made by the Senate would be more likely to devolve into factionalism, as
each group strove to advance a nominee who was devoted to the faction's particular interest or issue.
Doesn't the Gang of Seven's website prove Hamilton true? The site makes no mention of Roberts' character or credentials.
On the contrary it asks the general public to ask questions about specific issues of interest to the Gang's faction.
Hamilton's conclusion was that, while Senatorial confirmation placed a check on the President's ability to engage in
nepotism, the Senate's role should be "in general, a silent operation."
While I agree with Ted that the intention of the founders has "only so much relevance", it does have some relevance.
In my view our nation has suffered in recent decades from an insufficient emphasis on the intentions of the founders and,
in small measures, those of us who write on these topics should at least take notice of the founders' original intent.
Ted suggests that Hamilton's argument needs to be reconciled with Federalist 77
, which contemplates the Senate's need to anticipate public reaction to its confirmation or rejection. I see no conflict
Acknowledging that the Senate will be checked by the reaction of public opinion is not the same as encouraging direct
public participation in questioning a judicial nominee. The distinction is not merely one of degree. The founders
envisioned a process that would be deliberative, but focused on "the intrinsic merit of the candidate."
What I found so astounding by the Gang of Seven's AskJohnRoberts website was that it seemed to jettison the decorum that
a judicial confirmation ought to have for some kind of BigBrother/AmericanIdol/RealityTV online vote.
Why bother holding hearings if everyone can simply register their opinion online? We'll just ask Judge Roberts
to tell us his turn-ons and turn-offs and whether he wears boxers or briefs and then flash two 800 numbers on the screen to
vote "yes" or "no".
One of the outrages that fuels conservatives on the subject of judicial nominations is the Bork hearing. That hearing
set a new low in the conversion of the nomination process into a media free-for-all, as advocacy groups, for the first time,
advertised against a nominee.
The result, for the past two decades, has been a more partisan and more bitterly divisive nomination process. While
division in debate can sometimes bring clarity and focus to debate, that has not been the case in judicial confirmation hearings.
The nature of modern advertising has generated 30-second ads for and against nominees that have not done justice to the legal
issues involved or to the credentials and character of the nominees.
The outcome is a nomination process that becomes a referendum on discrete issues: Will the nominee reverse Roe v. Wade?
Will the nominee favor "big business"? Will the nominee "protect the environment"? Isn't this exactly the outcome
that Hamilton warned would result if the Senate itself had the power of appointment?
While the intent of the founders isn't everything, it is something. I can't help but conclude that if our practice
in judicial confirmations was closer to what the founders had intended our confirmations would be less partisan, more
focused on substance, more efficient in filling vacancies, and capable of producing better judges.
Saturday, July 30, 2005
The Constitutional Model for Advise and Consent
8:13 am edt Ted Frank
seems to take issue with my criticism
yesterday of the Gang of Seven's website for soliciting questions for Judge Roberts.
This skepticism is mysterious to me. Surely, nothing in the Constitution prohibits individual senators from consulting
with advisors in developing questions to put to a nominee. Why is opening that circle of advice to the public any different?
At the end of the day, it's still the individual senator who is choosing to ask the question. Criticize it for being an empty
and meaningless publicity stunt, to be sure, but there doesn't seem to be a legitimate constitutional objection to this innovation.
I must admit I'm as surprised by Frank's reaction as he seems to be by mine.
Of course "nothing in the Constitution prohibits individual senators from consulting with advisors in developing
questions to put to a nominee". I never said there was. Certainly there is nothing in the Constitution that prohibits
the Gang of Seven from publishing their website. JudicialWatch couldn't possibly seek and injunction to take it down,
The question I asked was whether this "empty and meaningless publicity stunt" has any "Constitutional basis." On
this point I believe I"m vindicated.
Never before has a group of Senators so openly sought public input on questions to ask a nominee.
Never before has a group of Senators couched their proposed questions of a nominee in so blatantly partisan terms.
On the AskJohnRoberts site, these Senators write:
"we believe it shouldn't only be Senators that get to ask the questions this time around. We want the American people
to have a voice. We want to know what you care about the most."
This is obviously not prohibited by the Constitution, but it is inconsistent with the history of judicial confirmation
hearings and utterly inconsistent with the intent of the Founders.
In Federalist 76, Hamilton defended the Constitution's method of judicial selection, contrasting its approach against
(1) giving the President the sole power of appointment and also against (2) giving the Senate the power of appointment.
Hamilton suggested that if only the President had a voice, his appointments might reflect personal favoritism
or private arrangements. Conversely, if only the Senate chose, the process would become one of party favoritism and
competition between the factions.
In this latter scenario, rank partisan negotiations would win out over the public's interest:
In the last, the coalition will commonly turn upon some interested equivalent: "Give us the man we wish for this office,
and you shall have the one you wish for that." This will be the usual condition of the bargain. And it will rarely happen
that the advancement of the public service will be the primary object either of party victories or of party negotiations.
The Founders never imagined that Senators would suggest that the public "have a voice" in judicial confirmations.
On the contrary, the Constitutional model for confirmations is that the President is empowered to propose the individual
he believes best suited and the Senate may confirm or deny that choice towards the goal of confirming a "man of abilities,
at least respectable". (Federalist 76)
By pretending to abdicate their role to the public, the Gang of Seven subjects the nomination process to "private and
party likings and dislikes, partialities and antipathies, attachments and animosities, which are felt by those who compose
the assembly". By so doing they risk that "the intrinsic merit of the candidate will be too often out of sight."
While this publicity stunt breaks no laws, it does break with tradition. Not all that is permitted is desirable.
If the goal of the confirmation process is to test the qualities of the nominee and to confirm his qualifications, credentials
and character, that goal is not well served by converting the process into a public referendum on a laundry list of hot button
issues, manufactured by a focus group and advertised by publicity-seeking partisans.
Friday, July 29, 2005
Questioning John Roberts: What Would Alexander Hamilton Do?
2:49 pm edt
A group of Democratic Senators have published a website
where members of the public can ask their own questions of Supreme Court nominee John R. Roberts.
Tuesday, July 26, 2005
The Abode Factor
8:19 am edt
"Verity" writing at SouthernAppeal makes the argument
that the "abode factor" indicates that Judge John G. Roberts will make for a reliably conservative Supreme Court Justice.
Verity suggests that those Justices who were elevated after living for a time in the Washington, D.C. area (Rehnquist,
Scalia and Thomas) have proven to be more reliably conservative that those who were nominated while living outside of the
D.C. area (Kennedy, O'Connor, Souter and Stevens). Verity's argument seems to be that, in the process of relocating
to the District and becoming acclimated to the District's social circles, the non-D.C. Justices feel social pressure to move
leftward in order to "fit in".
Walter Olson, writing at PointOfLaw, disagrees
with Verity's reasoning, but perhaps not the conclusion. He writes:
No, the most noteworthy aspect of the "abode predictor" is simply the way it turns on its head one of the standard tropes
of American political thinking, namely that "Beltway thinking" and true conservatism stand in antithetical opposition to each
other. We will all have to learn a new stock of truisms if it turns out that inside-the-Beltway thinking is the surest guarantor
of conservative rigor, while such unspoiled and authentic locales as small-town Minnesota, rural New Hampshire and the ranching
sections of Arizona are dangerous sources of squishiness, compromise and modernism.
Judges elevated from within the D.C. conservative circuit are well-known to other conservatives and hence
are subject to private, off-the-record scrutiny that is less available to judges living in "fly-over country".
Put another way, after living most of his professional life in the District (and regardless of whether he is
a member of the Federalist Society or not), influential Republican lawyers in the District know John Roberts. To the
extent the administration has sought out the opinions of influential Republican lawyers, the administration should have some
basis from which to guage his conservative reliability.
The ability to guage a prospective Justice's judicial temperment, through off-the-record social and professional
encounters, is probably one of the most effective ways for an administration to evaluate the likely inclinations of a possible
nominee. Nominees who live in the D.C. area simply give the administration a greater ability to collect those kind
of informal impressions.
Monday, July 25, 2005
'Laundry List' of Unethical Actions Get Pennsylvania Attorney $10K Sanction
4:51 pm edt
The procedural story is long, but this Pennsylvania attorney
got seriously spanked for filing an unjustified third party complaint in response to a malpractice claim filed against him.
The sad truth, however, is that stories like this are so rare and so many frivolous claims either survive or escape sanction.
Questioning Judicial Nominees
8:58 am edt
Check out my column
on PointofLaw, extending my analysis of Jay Jorgensen's memo from last week.
Arlen Specter Loses It
8:56 am edt
Arlen Specter has invented a whole new theory of jurisprudence that involves something he calls "superprecedents
". These, of course, include Roe v. Wade and are something that judicial nominees are supposed to pledge to uphold.
Sunday, July 24, 2005
Cynthia Tucker Slimes Judge Roberts
3:08 pm edt
Atlanta has much to recommend it as a home town: a good baseball team, a footbal team that's getting better, affordable
housing and a vibrant technology sector, to name a few.
Among Atlanta's negatives, however, are its traffic, its abyssmal newspaper (the Atlanta Journal Constitution) and that
newspaper's lead columnist, Cynthia Tucker.
Tucker rarely finds the right side of an issue and when she's wrong, she's really wrong. In case anyone could have
forgotten, she provided us a doozy with her column
this Sunday morning on Supreme Court nominee John G. Roberts.
In her column on Roberts, Tucker takes it for granted that Roberts' views on abortion will parallel the President's.
She claims, however, that rather than focus on abortion, questioning should focus on "the right to privacy". Here is
where Tucker really falls apart.
You see, according to Tucker, there are "extremists" in America who believe there is no Constitutional right to privacy.
In her words:
"Americans who believe in individual rights — that's nearly all of us — should concentrate on Roberts' views on something
even more important: the right to privacy. If you examine carefully the rantings of those on the extremist edge of the religious
right, you'll see that they make an underlying argument even more troubling than their absolutist premise that abortion is
murder: They argue that there is no constitutional right to privacy."
So, if you find the idea of sticking a needle through the brain of an unborn child just a bit troubling, you
are an "extremist".
Not surprisingly, Tucker doesn't waste any words on supporting her argument that there is a constitutional right
That debate has raged for years and many bright people have written hundreds of pages on the topic without reaching
a conclusion. I won't presume to suggest an answer here, but I can't avoid suggesting the obvious: the existence of
a Constitutional right to privacy is a debate on which intelligent and reasonable people may disagree. Neither side
is extreme if its position is well-considered. The extremists are those who refuse to acknowledge the possibility they
may be wrong.
And that, of course, includes Tucker.
In her typical style, Tucker doesn't rest with smearing a large swath of America (perhaps even a majority of
it) with her invective. She cannot avoid challenging Senator Dick Durbin (who infamously compared U.S. soldiers to
Nazis) in her run for the "most offensive overstatement of the year award".
Tucker claims (describing the views of those who find no right of privacy in the Constitution):
If that antediluvian view holds sway, American women will find themselves living under something akin to Shariah,
the Quranic law that restricts women's rights. And men, too, will find their private lives severely curtailed by government
interference. If Americans have no right to privacy, the government can roam freely about your bedroom, telling you how and
when to have sex and whether you can use a contraceptive.
For anyone who has been living in a cave for the past four years, Islamic Shariah law condones "honor killings",
gang rapes of females in retaliation for the offenses of their male family members, and stoning and heading as punishment
for other crimes. By comparing the views of some American conservatives to Shariah, Tucker is comparing a large group
of her fellow citizens to some of the worst regimes on the planet today.
So, you see, not only are Republicans "extremist" but they are also similar to the Taliban, Osama bin
Laden and the very folks we're now trying to fight in the war on terrorism.
I suppose a columnist that finds nuance in everything might not make for interesting newspaper reading, but Tucker
finds nuance in nothing. She not only takes for granted the rightness of her conclusion, but she intentionally defames anyone
who disagrees with her with the most horrific slurs.
There is a legitimate debate to be had over the President's judicial nomination and the process of that debate
is healthy. Tucker's approach, however, is pure poison. Like a fart in an elevator, she embarasses herself and
offends everyone else.
Saturday, July 23, 2005
Roberts: Activism, Conservatism and Other Isms
4:36 pm edt Stuart Taylor
takes apart some of the shallow thinking surrounding the Roberts nomination and provides a survey of conservative jurisprudence.
As many of us have noted before
, "judicial activism" is a hollow phrase that means whatever is undesirable from the point of view of its user.
There are conservatives and then there are conservatives and they disagree with each other almost as much as with those
who are not conservative. To this end, opponents of Robert who predict a monolithic and ideologically united Court are
just dead wrong.
Would a Justice Roberts join with the majority to find a Constitutional limitation on punitive damages (as Justice O'Connor
did in State Farm v. Campbell
) or would he join with Rehnquist, Scalia or Thomas in a dissent? Which of those two views is the conservative?
Reasonable conservative minds can disagree.
Taylor wisely concludes:
It's all part of the glorious messiness of our constitutional democracy. In the end, the jurisprudential journey of John
Roberts may depend less on any all-encompassing judicial philosophy or secret political platform than on the balances that
he strikes, from one case to the next, in resolving a dilemma identified by the great Judge Learned Hand:
"Each one of us must in the end choose for himself how far he would like to leave our collective fate to the wayward
vagaries of popular assemblies.... For myself, it would be most irksome to be ruled by a bevy of Platonic Guardians, even
if I knew how to choose them, which I assuredly do not."
Requiem for the Fifth
4:16 pm edt Douglas Kern
describes a future 1L Con Law class struggling to understand what the 20th century ever found of value in the Fifth Amendment.
Humorous and enlightening.
Friday, July 22, 2005
Blood on the Thames
2:27 pm edt
Jonah Goldberg describes
the impact of multi-culturalism on Britain:
Britishness, for all its faults, was once seen around the world as a distinctly valuable and admirable quality. Decency,
respect for law, intelligence without so much bloody abstraction, propriety, manners: These were the attributes invariably
attributed to the Brits. Since Powell's speech, however, the British have turned their backs on all of that. Their popular
culture is vastly more coarse than America's. Worse, they have seized the kingdom's leading institutions and scraped out the
best traditions and customs like so many tumors.
"We allowed our patriotism to be turned into a joke, wise sexual restraint to be mocked as prudery, our families to be
defamed as nests of violence, loathing, and abuse, our literature to be tossed aside as so much garbage, and our church turned
into a department of the Social Security system," writes Peter Hitchens in his wonderful book, The Abolition of Britain
All of this came about because the British lost confidence in themselves. Confidence in the greatness of your nation
is a wonderful bulwark against those who'd like to turn it into something else. When William of Wykeham founded New College
at Oxford in 1379, he planted a grove of oak trees on the assumption that the school's beams might need to be replaced in
about 500 years. That's a sign of cultural confidence. The founder of the Guinness beer dynasty signed a 9,000-year lease
for his brewery.
Now a person can move to this country and complain that the British flag is oppressive, and the Brits don't have the
national spine to laugh the complaint away. Britain has given in to the "besetting temptation of all politics to concern itself
with the immediate present at the expense of the future."
Now the future is here. Islamism is filling the yawning vacuum created by multiculturalism. England is producing homegrown
suicide bombers who are supremely confident in a very non-British future for Britain. For years, the police here have looked
the other way as citizens have slaughtered their wives and daughters in "honor killings." To clamp down would be "insensitive"
to cultural differences. They've looked the other way, as jihadi ideologues have turned London into the Comintern of Muslim
extremism. In other words, they opened their minds so wide, their brains fell out. And now the Thames, like the Tiber, is
foaming with much blood.
Is Roberts a Blank Slate?
9:34 am edt
Critics from both the left and the right have leveled criticism at Judge John G. Roberts
based on the argument that he is a "blank slate".
of PFAW has written that "The enthusiastic embrace of John Roberts by radical right leaders who have been demanding more
far-right activists like Scalia and Thomas on the Court should sound alarm bells . . . "
From the right, Ann Coulter
calls the nominee a "Souter in Roberts Clothing" and that the President "has given us a Supreme Court nomination that will
placate no liberals and should please no conservatives."
As Manual Miranda notes
in today's Wall Street Journal, the criticism from the left is intellectually vapid. The left opposes this nominee
because he is the President's nominee.
If Bush had nominated Alan Alda
to the Court I'm sure we'd be hearing about how this too destroyed the "diversity" of the institution and presaged a
return to "back-alley abortions" and so on.
Coulter's criticism is more studied, however. The heart of her claim is that Roberts is a "blank slate" and that
conservatives have been burned by past nominees (Souter is probably her best example) who have been put forth precisely because
they lacked a paper trail.
It is certainly an historical fact that Republican presidents have nominated candidates who have turned out to have a
moderating or even liberal influence on the Court. In addition to Justice Souter
, some conservatives has suggested that Justice O'Connor
was more moderate than promised and Justice Brennan
was haled as a lion of the left when he retired even though he was the product of a Republican president.
John Roberts has been
working in the maelstrom of public life for three decades; at any moment he could have tripped up or been betrayed. He has
navigated those waters and emerged with the respect of those who know him, Republican and Democrat, conservative and liberal.
While we can never have
absolute certainty, I think this is where most of us should arrive.
Roberts clerked for Rehnquist
after law school, at a time (1973) when describing yourself as "conservative" was still pretty rare at Harvard Law School.
He served Republican administrations
in a variety of capacities and won confirmation to the D.C. Circuit in a unanimous vote.
While he has written few
opinions as a judge, what he has written suggests a conservative jurist in the mold of William Rehnquist.
That isn't everything,
but it is enough.
Thursday, July 21, 2005
Charles Schumer's Vendetta Against John Roberts
1:00 pm edt
New York Senator Charles Schumer has a "thing" about Supreme Court nominee John G. Roberts, but I'm not quite sure what
In an earlier post
today at PointOfLaw I noted Schumer's interview yesterday on PBS in which New York's senior Senator said that he voted against
Roberts' confirmation to the D.C. Circuit in 2003 and would vote against him again in 2005 unless he displayed more "candor".
That's code for saying, "unless he rolls over for me and says "uncle" I'll give him the boot."
As I cited in Jay Jorgensen's paper, Schumer's questioning in 2003 was out of line and it is even more out of line in
2003 when the nominee is being considered for the Supreme Court.
In an editorial
in today's New York Sun, that paper delves even deeper into Schumer's 2003 attack on Judge Roberts and leaves one wondering
whether this is some kind of vendetta: "Senator Schumer is planning to use his seat on the Senate Judiciary Committee to reopen
a battle he has already lost."
According to the Sun:
But despite being rebuked by his colleagues for pressing inappropriate questions on Mr. Roberts when he was a federal
appeals court nominee, Mr. Schumer has signaled he is going to revisit the same line of questioning. "It is vital that Judge
Roberts answer a wide range of questions openly, honestly, and fully in the coming months," the senator said.
* * *
Indeed, as Justice Ginsburg observed in her dissent in Republican Party of Minnesota v. White, "In the context of the
Federal system, how a prospective nominee for the bench would resolve particular contentious issues would certainly be 'of
interest' to the President and the Senate. But in accord with a longstanding norm, every member of this Court declined to
furnish such information to the Senate, and presumably to the President as well."
This long-standing norm was followed by no less a liberal icon than Thurgood Marshall (and we here at the Sun revere
him no less than any liberal). Marshall, during his confirmation hearing in 1967, responded to a senator's question regarding
the Fifth Amendment this way: "I do not think you want me to be in a position of giving you a statement on the Fifth Amendment
and then, if I am confirmed, sit on the Court and when a Fifth Amendment case comes up, I will have to disqualify myself."
Mr. Schumer may want to do away with this long-standing norm. He may care more about his own political agenda than the
independence of the judiciary. But there is something odd about Mr. Schumer's quest to do this in the name of protecting the
court, something that rings basically false - sort of like Senator Kerry trying to wrap himself in the aura of the military
at a time when he was counseling retreat in the war. What Mr. Schumer is doing is going up against constitutional bedrock,
the idea of separated powers, and it will be illuminating to see whether he gets away with it
More Background on John G. Roberts
7:33 am edt
CNN has a background piece
on Judge Roberts that discusses many of the cases he handled in private practice, suggesting that a Justice Roberts would
be inclined to rule in favor of business. (Tip: Walter Olson
says that Roberts will be a "tough target" for his opponents because his relatively short time on the Court of Appeals has
not allowed him to amass a paper trail of decisions for criticism.
Michael Barone writes
that Roberts' appointment will change the public's conception of the "mainstream" of conservatism in the way that Roosevelt's
New Deal judges re-defined the political center for several decades.
Howard Fineman pays homage
to President Bush's political instincts in nominating Judge Roberts:
Bush likes to pull surprises, but only on matters of timing. George Bush hides in plain sight, a tactic that works here,
since everyone always assumes the game is all about misdirection. Bush said he wanted to choose justices in the Scalia-Thomas
tradition. Why would anyone think that he wouldn’t follow through on that promise?
Wednesday, July 20, 2005
6:44 am edt
"I really do not expect any issues that go to the qualifications, the honesty, the integrity and the fairness of a Supreme
Court justice to be off-limits," said Sen. Patrick J. Leahy (Vt.)
"Yet those who know Roberts say he, unlike Souter, is a reliable conservative who can be counted on to undermine if not
immediately overturn liberal landmarks like abortion rights and affirmative action. Indicators of his true stripes cited by
friends include: clerking for Rehnquist, membership in the Federalist Society, laboring in the Ronald Reagan White House counsel's
office and at the Justice Department into the Bush years, working with Kenneth Starr among others, and even his lunchtime
conversations at Hogan & Hartson. "He is as conservative as you can get," one friend puts it. In short, Roberts may combine
the stealth appeal of Souter with the unwavering ideology of Scalia and Thomas. "
Tuesday, July 19, 2005
Opinions by Judge Clement
1:21 pm edt
Tom Goldstein has a lengthy list
of opinions authored by Judge Clement.
Bush to Announce Supreme Court Nominee
1:15 pm edt
AP is reporting
that the President will announce his nominee in a prime time address tonight. The same report is citing speculation
that the nominee will be Fifth Circuit Judge Edith Clement
Update: The White House has confirmed
the announcement for 9pm eastern tonight.
Monday, July 18, 2005
Taylor Says "No" to Gonzales
3:12 pm edt
Stuart Taylor, a legal writer for the National Journal who has often taken what the media would call "conservative positions"
(i.e., he has written approvingly of tort reform and called for Clinton's impeachment) has come up with five reasons
for the President not to nominate Alberto Gonzales as the next Supreme Court Justice.
Investigation of Milberg Weiss Began in Late 1990s
9:32 am edt
According to an article
in the NY Times, the investigation began when a former client, who had been indicted for insurance fraud, offered to testify
against Milberg Weiss in exchange for leniency.
Steve Cooperman, a "multimillionaire ophthalmologist who collected fine art and opulent houses on both coasts" had been
plaintiff in a number of Milberg Weiss suits and, in the midst of financial troubles, had been caught trying to fake an insurance
claim on the theft of artwork.
In Cooperman's subsequent divorce litigation, the judge noted that Cooperman had received "large sums as kickbacks from
attorneys in one of the leading class-action firms in the nation". The judge said that Cooperman was cooperating
with prosecutors, and would help implicate "members of the Milberg Weiss law firm."
Saturday, July 16, 2005
Bush Drops Hints
3:57 pm edt
In his weekly radio address today President Bush dropped some hints on the traits he would seek in a Supreme Court nominee.
He said his nominee would be a "fair-minded individual who represents the mainstream of American law and American
The candidate also "will meet the highest standards of intellect, character and ability and will pledge to faithfully
interpret the Constitution and laws of our country."
"Our nation deserves, and I will select, a Supreme Court justice that Americans can be proud of," he said.
Friday, July 15, 2005
11:05 am edt
I'm adding to my blogroll an interesting site
that tracks the antics of Elliot Spitzer.
Although I haven't had the opportunity to write much on this topic, Spitzer seems to be the poster child for a unique
kind of problem in the world of business law: the know-it-all-AG who can't seem to avoid suing businesses.
While the motivation for activist AG's is fairly clear (they're usually running for governor
) the negative impact is often harder to articulate.
Among other problems, however, is the impact of AG activism on basic concepts of federalism
. AG's who pursue public policy goals through litigation, or who pursue remedies that have impacts beyond the borders
of their states, run roughshod over constitutional limits on their prerogatives.
Unfortunately, there is no easy remedy for the problem of activist AG's. They are not subject to federal supervision
and the targets of their activism are usually limited to fighting their own defenses, not waging the larger war in favor of
the principles of federalism.
Rehnquist Not Retiring
9:09 am edt
"I want to put to rest the speculation and unfounded rumors of my imminent retirement.
I am not about to announce my retirement. I will continue to perform my duties as chief justice as long as my health
Thursday, July 14, 2005
Wiconson Strikes Down Damages Cap
12:53 pm edt
Ted Frank notes
that the Wisconsin Supreme Court has invalidated a Wisconsin statute that caps non-economic damages in medical malpractice
cases to only $350,000.
is tortured -- it claims to invalidate the law under the Wisconsin Constitution for violating equal protection principles,
applying a rational basis test -- and yet the decision really doesn't apply a rational basis test, at least as we all have
come to understand it, as the dissent notes.
The option does bear reading to understand the lengths to which judges may go in order to reach a conclusion they
Lawsuit Abuse Reduction Act
7:18 am edt
The Washington Examiner
has an editorial today , decrying the prevalence of frivolous lawsuits and endorsing part of the
Lawsuit Abuse Reduction Act, but echoing criticism I made of the LARA a few months ago.
The LARA has gone nowhere
since it was reported out of the House Judiciary Committee back in June. If the proponents of the bill want
to get it passed, they could probably do that by simply redacting the portions of the bill that offend federalism (i.e., those
that seek to impose a Rule 11 standard in state court proceedings) and keep the balance.
result would be a restoration of the 1983 version of Rule 11, with mandatory sanctions against
attorneys who file frivolous suits in federal court.
That would be a significant reform all by itself.
Wednesday, July 13, 2005
Alberto Gonzales May be Bush's Trojan Horse
3:46 pm edt
Mark Davis, writing in the Dallas Morning News
, makes the case that Alberto Gonzales may not be as liberal as some conservatives have concluded.
If so, nominating Gonzales, in the face of the universal Democratic applause he has received so far, might just
be Trojan horse for the President: a conservative justice, the first Hispanic justice on the court and a serious lawyer
who is not afraid to make tough choices when it comes to terrorism and security.
Breaking News: Rehnquist Hospitalized
3:35 pm edt
Publicity for Out of Balance
12:20 pm edt
The press release
for Out of Balance
hit the wires yesterday. It must be doing something good, as the book is now inside the top 80,000 in sales on Amazon.
Thanks for everyone who has supported this project!
NAACP to Pursue Reparations Cases
9:08 am edt
Walter Olson notes
that the NAACP is still vowing to pursue reparations claims against "companies that have historical ties to slavery" despite
the several cases
that have already been litigated holding that there is no such liability. (More here
Larger companies, unfortunately, have fallen prey to the shakedown methods
of some of the reparations advocates, making payments in the hope of getting peace, only to find themselves getting sued
The money quote, from the NAACP's interim President, Dennis C. Hayes, "We will take your money today and sue you tomorrow."
Tuesday, July 12, 2005
The Litigation Lottery
12:21 pm edt
Ted Frank does a great job of describing the "litigation lottery" today at PointOfLaw
The nature of a litigation lottery is that the availability of potentially huge damages justify bringing a meritless
claim, so long as there is some small chance that the combination of an outlier judge and an outlier jury will produce a jackpot
that compensates for the risk that the judge/jury combination will get it right.
For example . . . it does little good that Ford won thirteen straight cases regarding the design of its Ford Explorer
if in the fourteenth case, the jury votes 9-to-3 to award $368.6 million in damages (reduced by the court to "only" $150 million
on Sep. 3). Thirteen out of fourteen juries did not award excessive damages, which is what the empirical studies measure—but
the average case awarded over $10 million. And this last number actually understates the real economic costs to American defendants
given the substantial sums it costs a Ford to defend a trial.
When defendants are facing a Russian roulette game where the plaintiffs get to fire multiple shots at them, it's irrelevant
to note that the median chamber of the gun is empty.
As I describe in Out of Balance
, it is precisely the upside potential of this kind of longshot case that clogs the courts with weak cases. Because
the American rule of attorneys' fees gives most plaintiffs' a "free shot" the system provides an incentive for plaintiffs
and their lawyers to file these suits, even where the prospect of winning is slight.
Because the defendant will have to spend attorneys' fees simply to win the right to have no liability, many defendants
will settle and pay something if only to minimize their losses.
McKesson CFO Acquitted
9:57 am edt
8:58 am edt
Morton Kondracke writes
today that Bush and the Senate should strive for a "dignified debate" on any Supreme Court nominee. I'm not holding
Monday, July 11, 2005
A Tale of Two Ediths
1:29 pm edt
What Conservatives Want
1:23 pm edt
Advice for President Bush
7:50 am edt
David Wagner, writing in the Weekly Standard
, has some advice for the President. He argues that the President should wait until later in the Summer to announce
his nomination to replace Justicee Sandra Day O'Connor.
The leading lesson from the Bork experience, and also the Thomas experience, is that because the Supreme Court has arrogated
most of cultural politics to itself, confirmations to it have become the most brutal alleyway of American politics. The "rules"
that most players seem to assume call for an early nomination, delayed hearings, and a loftily detached nominee; but, however
venerable in origin and laudable in theory these rules may be, the left has formulated its playbook around them, making them
operationally part of the left's own strategy. There is no reason for President Bush to play by them.
Sunday, July 10, 2005
George Will Nominates J. Harvie Wilkinson
1:48 pm edt
Liberals and conservatives, Wilkinson has written, differ about "the place of compassion in the democratic process."
The human condition is prey to myriad misfortunes. "Victims of social circumstances, however, are altogether distinct from
victims of another's violation of a specific legal duty. It is the job of the democratic process to ameliorate the effects
of the former. It is the judiciary's charge to rectify the latter."
Dismay about abuses of judicial discretion drives some conservatives into a misguided quest for a jurisprudential
holy grail -- a theory of constitutional reasoning that will virtually expunge discretion from judging. This goal is chimeric.
Construing the Constitution should begin with what the document's pertinent language meant to those who wrote
and ratified it. But construing can rarely end there. Historians continue to deepen our understanding of how varied and occasionally
contradictory were the intentions of the framers and ratifiers. History always informs constitutional deliberations; it rarely
* * *
After receiving his degree at the University of Virginia law school but before teaching there, he clerked for a family
friend, Supreme Court Justice Lewis F. Powell Jr., the embodiment of mainstream conservative jurisprudence. Wilkinson was
nominated by President Ronald Reagan to the U.S. Court of Appeals for the 4th Circuit. Concerning the most important and vexing
subject of constitutional law -- racial equality -- Wilkinson wrote a justly praised book, "From Brown to Bakke: The Supreme
Court and School Integration, 1954-1978." In 1987, in a case concerning a "minority set-aside" program for Richmond contractors,
he wrote the 4th Circuit's opinion demonstrating how carefully circumscribed "race-conscience remedies" must be in order to
be compatible with the Constitution's guarantee of equal protection of the laws. In 1989 the Supreme Court endorsed the 4th
Circuit's ruling. The opinion affirming Wilkinson's reasoning was written by Sandra Day O'Connor.
The nomination of Wilkinson to fill her seat would be a splendidly clarifying act. Any senator's claim that Wilkinson
is an "extremist" would be risible, and itself evidence of extremism.
Saturday, July 9, 2005
Reports from the Field on Offers of Judgment
7:17 am edt
Fellow Atlantan Ken Shigley
has a blog for his motor carrier liability practice and has made some interesting comments on Georgia's offer of judgment
rule. He writes
I have begun to hear anecdotal reports of insurance companies using low offers of judgment effectively in small soft
tissue injury cases. In those small cases and particularly with lawyers who handle high volumes of small cases, the intimidation
factor provided by the new OCGA Section 9-11-68 can be substantial.
At the same time, I am not seeing or hearing of much use of offers of judgment by insurers in larger cases or in dealing
with well established trial lawyers. In meaty cases with serious injuries or wrongful death, I am hearing rumblings that insurers
and defense firms are concerned that the offer of judgment statute could cost them money, so they aren't using it much at
At the same time, I am beginning to hear reports of strong, well-established plaintiffs' lawyers making well-reasoned
offers of judgment early in cases, and coupling them with demands for prejudgment interest under the Unliquidated Damages
What makes this especially interesting is that it undercuts the doom-and-gloom
claims of the plaintiffs' bar in Georgia that came out during the debate over S.B.3
Opponents of reform went so far as to say that the passage of the tort reform bill was the "darkest day in the
history of Georgia", prompting others to quip that certainly the darkest day must have been somewhere in the mid-1860s.
Even after the bill passed, the Fulton County Daily Report carried a column from a trial lawyer bemoaning an
insurance company defendant's use of the offer of judgment rule to coerce his client into a settlement of a $100,000 case
for only $80,000.
Claiming that "strong, well-established plaintiffs' lawyers" are able to use the offer of judgment rule to their
advantage is something I predicted in Out of Balance
but it's gratifying to hear a plaintiffs' lawyer say it as well.
In the same way that the rule creates leverage to settle weak cases, it also can be used to create leverage to
settle strong cases. If the defendant perceives a high likelihood of liability in the range of $X and the plaintiff
makes a settlement offer of N% of $X, a defendant would be foolish not to consider seriously the offer.
Friday, July 8, 2005
More on Rehnquist Retirement
4:49 pm edt Fox News
is reporting that the Chief Justice left the office early today. When asked if he was planning to resign, he quipped,
"That's for me to know and you to find out."
is reporting the same rumor, but claims the announcement is on hold until Monday.
Rehnquist to Retire?
4:28 pm edt Robert Novak
and DrudgeReport are claiming that Chief Justice William Rehnquist is retiring and his resignation will be announced
tonight. In an interview on CNN, Novak claimed that the Chief Justice's resignation will be announced at 4:50pm when
the President's plane reaches Andrews Air Force Base.
Walter E. Dellinger III, former acting solicitor general of the United States,
told a Heritage Foundation audience Thursday that Rehnquist's retirement is a certainty.
says that Senate Democrats had been told to expect an announcement this morning, but obviously that did not happen.
Sarbanes-Oxley Criticism Piling On
2:33 pm edt
He notes a speech in London by Delaware Chancellor Leo Strine
in which he sharply criticizes SOX calling it a "strange stew" that coupled sensible ideas with "narrow provisions of
This follows the line of analysis in Roberta Romano's article
in the Yale Law Journal. Romano very carefully traces the progress of the legislation, showing how little attention
was given to its key details through the Congressional hearings that support it. She also identifies all of the empirical
studies the pre-dated the legislation and that showed how most of SOX's key provisions had been proven to be ineffective before
Congress passed the Act.
Professor Bainbridge also quotes Chancellor Strine to question the efficacy of SOX:
"The emerging model is a board comprised of one insider - the CEO - who knows everything about the corporation and who
has a keen interest in its future, and 10 independent directors selected precisely because they have no affiliation with or,
interest in, the business or its fate.
That is an odd group to help develop a business strategy and seems likely to function largely as a monitor, with strategy
being left to the CEO and subordinates outside the board's presence."
As Professor Bainbridge has also written
, the dramatic changes in corporate governance we have seen in the past few years posit a brand new role for the corporation's
board and an abdication of the board's traditional role.
The upshot of this criticism is two-fold. First, through SOX, Congress has saddled public companies with
a very expensive and bureaucratic system that, empirical studies show, is unlikely to have a positive effect on shareholder
Second, the very model that SOX and its accompanying NYSE and NASDAQ reforms have in mind is that of a board
composed almost entirely of non-insiders. As a consequence, the board can merely review strategy at a very high level,
never really getting to understand the business, its executives, its methods of execution or its tactical decisions.
This is a model that has the board functioning like a nanny, not like a council of of entrepreneurial generals.
By way of example, board members who attend four or five meetings per year might be aware of the corporation's
major initiatives, but they cannot possible be involved in the execution of those initiatives. As anyone in business
knows, execution is at least as important as strategy. Many a great strategy has failed utterly when poorly executed.
Only insiders, who have a daily job in managing execution can bridge the gap from strategy to execution.
It is a model that seems built around preventing risk-taking, rather than evaluating and guiding risk-taking.
Corporations that take no risks are not necessarily those best suited to create value.
Thursday, July 7, 2005
Second Circuit Rules Directors Entitled to Jury Trial
10:07 am edt
In a decision that could have far-reaching implications in D&O liability actions, the Second Circuit has ruled that
directors and officers in a D&O liability action have a Seventh Amendment right to a trial by jury.
According to the article in Law.com
, the Second Circuit in Pereira v. Farace
, 03-5053, overruled the trial court which had held that the action by the
corporation's trustees against its former officers and directors was equitable in nature, and not an action at law.
Because the Seventh Amendment guarantees jury trials only in actions "at law", the trial judge reasoned, the defendants were
not entitled to a jury trial. Consequently, the trial judge had denied defendant's motion for a jury trial and conducted
a bench trial on the merits, finding in favor of the plaintiff.
On appeal, the Second Circuit reversed, distinguishing its prior holding in Strom v. Goldman Sachs & Co.,
202 F.3d 138 (1999), reasoning that the plaintiff trustee was essentially seeking compensatory damages, which had the character
of an action at law.
Slavery Reparations Case Dismissed
7:09 am edt Jeff Lewis
, writing at Overlawyered, notes that another slavery reparations case has again been dismissed
After U.S. District Judge Charles Norgle dismissed the same case several years ago, plaintiffs were permitted to amend
their complaint to allege direct injuries from slavery. In their amended complaint, the included allegations from a
104-year-old plaintiff who claimed to have lived in a "slave hut". Even this, however, was not enough to save the case
Frivolous Litigation Through the Fog of Uncertainties
6:52 am edt
Thomas Sowell takes aim at a number of injustices in his latest column
. I especially appreciated his connection between excessive litigation and the "fog of uncertainties" created by bad
People of every income level and social background are made worse off when the rule of law dissolves into a fog of uncertainties
created by "nuanced" judicial fiats. Frivolous lawsuits flourish in these uncertainties, crippling businesses, destroying
jobs, and driving up the cost of medical care to cover both the lawsuits and the defensive medicine to ward off lawsuits.
But his admonition applies equally as well to the legislatures.
Far too often excessive litigation results from laws that are poorly-written, with standards that are vague
or undefined. Laws that create bright line tests are easy to follow. Most businesses will change their practices
when the law clearly requires a change. Businesses cannot avoid liability, however, when the law is so vague as to give
every potential plaintiff a shot regardless of how the business has tried to comply.
O'Connor and the Trial Lawyers
6:34 am edt
Walter Olson's editorial
in today's Wall Street Journal raises an important issue that has been missed in the popular coverage of the Supreme Court
vacancy: a judge's views on social issues like Roe v. Wade
, etc. do not necessarily indicate how a judge would view
questions involving litigation more generally and, in particular, those issues of interest to reformers.
An issue for the administration to consider, therefore, is how any of the potential nominees would be likely to rule
on issues like:
* limitations on standing and the certification of classes in putative class actions;
* the enforceability of statutory caps on non-economic and punitive damages;
* the prerogative of state legislatures to prescribe limits on attorneys' contingency fees; and
* statutory reforms of the collateral source rule and the abolition of joint and several liability among joint tortfeasors.
Wednesday, July 6, 2005
The Outspoken Judge Jones
3:33 pm edt
North Carolina civics teacher Betsy Newmark noted
a recent interview in American Enterprise Online
in which Judge Edith Hollan Jones gives some further insights into religion:
TAE: Moral values are important to you. What do you think is the best way to teach them to children?
JONES: I think religion is the best way. If you are responsible to God, no matter what religion you are in, you learn
moral standards that transcend the dictates of the law. You show your kids fundamentally what is right or wrong.
On the question of tort reform, Judge Jones said that our litigation system is "in distress":
TAE: Should tort reform help curb frivolous lawsuits?
JONES: I think that is a very important goal. There was a recent $900 judgment against two teenagers in a Colorado
suburb who baked cookies and dropped them off on the doorsteps of their neighbors at night out of sheer kindness. One of the
neighbors claimed she got so frightened that there were intruders at her door that she had to go to the hospital the next
day. And she sued these girls. Now, if that's not a sign of a system in distress, I don't know what is.
(Side note: For our coverage of the Colorado "cookie monster" case: see here
Regarding the Supreme Court's role in institutionalizing a right to abortion through Roe v. Wade, Judge Jones was again
TAE: You have stated that the values imposed by the Supreme Court have contributed to the decay of our society. Could
you give us some examples?
JONES: The philosophical underpinnings of our government are the contract theory which says that we are a self-governing
people, and the historical view that in order to be properly self-governing we must have a moral foundation. The Supreme Court's
porno-graphy cases, the cases involving free speech that included those where people were allowed to spout the "F" word in
public venues, the criminal procedure decisions which allowed many, many guilty people to go free because of rights that justices
discovered in the Constitution for the first time in its two centuries of existence are examples of the overstepping of bounds.
In several notable areas the Supreme Court has been operating on fatally flawed philosophical premises not well tested in
TAE: You recently authored an opinion in the McCorvey v. Hill case that got a fair amount of attention. This is the case
that attempted and failed to reopen the Roe v. Wade abortion ruling. Your opinion highlighted the tension between the Supreme
Court's ruling and modern scientific knowledge about what happens to babies and to women during abortion.
JONES: I was trying to point out that by Constitutionalizing the right to abortion, the Supreme Court had removed from
the ordinary political processes any debate in which facts about prenatal advances, or health effects on women, could be heard
and taken into account. In fact, the Court's exceptionally broad ruling removed fact-finding processes even from the Court's
own debates. Facts, I concluded, no longer matter to the Supreme Court in certain cases.
Mrs. Newmark worries that Judge Jones' outspoken manner will come back to haunt her if she is the nominee. Doubtless,
comments like these will play a central role in the Democrats' talking points if that should come to pass.
Risk and Reform
7:30 am edt
Professor Grace has written, in connection with a Rand Study on the September 11 Victim’s Compensation Fund that he “wouldn’t have linked torts to terror” before reading that study.
In the days following September 11, 2001, Congress became concerned that litigation
over damages suffered as a consequence of the terrorists’ actions would clog the courts and so created a Victim’s Compensation
Fund. Claimants could receive an expedited payment, based upon a mechanism developed by an administrator, in exchange
for releasing all potential defendants.
Professor Grace asks why it was
that Congress thought that 9/11 cases would clog the courts, “How can these actions by fanatical suicidists be foreseeable?
I have always thought about tort reform as civil procedure reform, but perhaps there needs to be some rethinking about
causation and compensation. “
Two factors power the growth
in tort litigation and stood behind Congress’ proper perception that 9/11 litigation would have clogged the courts: (a) substantive
changes in the law over the past 60 years have eroded the link between liability and damages and (b) the mechanism of litigation
– our civil procedure system -- is out of balance.
Peter Huber’s analysis in Liability, and Walter Olson's
Litigation Explosion trace the transformation of the law and the erosion in standards that leaves us where we are today. It is far
too easy to prove liability (forseeability of the injury and responsibility for that injury) and courts have been too generous
in measuring compensation. This is a topic, however, on which I am not an expert.
What made a flood of 9/11 litigaiton
inevitable, however, was the system through which those thousands of claims would have flown. Because of the American
rule of attorneys’ fees, where a plaintiff gets a free shot at any defendant he can name, the system itself induces litigation.
Plaintiffs have no downside if they file and a huge potential upside, so it’s no surprise that they file.
Imagine the havoc if every decedent’s
estate had sued every conceivable defendant (like a 1L’s torts exam essay question). Included among the defendants would
have been: property owners, building managers, airlines, employers, state and local governments, airport security contractors,
city planners and the like. Discovery would have lasted years and would have encompassed millions of pages of documents.
Plaintiffs would have banded together to build giant warehouses full of documents that could be searched for any clue that
might have suggested that if only Defendant X had done Y the damage would not have occurred.
In a rare moment of wisdom, Congress
knew the country had to get back to business after September 2001 and, through the Victim’s Compensation Fund, effectively
cut the civil litigation system out of the picture.
Unfortunately, the model Congress
followed for the 9/11 disaster does not translate well into other circumstances. The 9/11 incident was almost without
parallel in the mind of the nation (Pearl Harbor probably comes the closest) so it is so rare as to be incapable of comparison to other major losses.
What is telling, however, is
how quickly Congress came to the conclusion that litigation would clog the courts and that this litigation would due more
harm that good. Politicians from both parties had no trouble seeing the big picture.
This conclusion undercuts the
claims of those who oppose litigation reform (with slogans like “everyone deserves their day in court” etc). When it
comes down to a choice between restoring the American economy and facilitating pointless litigation, politicians get the right
answer. If only they could make that choice when the choice between economics and litigation is less obvious.
Tuesday, July 5, 2005
Why Not Janice Rogers Brown?
9:02 am edt
There's another candidate who would be even harder to demonize: Judge Janice Rogers Brown. She's a conservative with
a long record on California's Supreme Court and had been one of several judges being filibustered by Senate Democrats. But
after being confirmed last month, she now sits on the U.S. Circuit Court of Appeals for the District of Columbia, a court
that has produced more than its share of Supreme Court justices. Thanks to the deal seven Democrats hammered out with seven
Republicans she is, by definition, not "extreme" enough that her nomination would constitute "extraordinary circumstances"
justifying a filibuster.
Anyway, filibustering Judge Brown would also block the first black woman from taking a seat on the high court. Never
underestimate the power of "a first" in getting Supreme Court nominee through the Senate. Justice O'Connor, the first woman
to sit on the high court, sailed through 99-0 in 1981. Five years later, President Reagan sent up Antonin Scalia to be the
first Italian-American to sit on the highest court in the land. He is now the bane of the left, but in 1986, he won confirmation
Monday, July 4, 2005
Edith Jones On the Corruption of the Legal System
3:24 pm edt
While the name of the next Supreme Court nominee is still a matter for much speculation, if that
name turns out to be Edith Jones it will be a cause for much excitement among conservatives and consternation among liberals.
While serving as a judge on the Fifth Circuit Court of Appeals since 1985, she has amassed a reputation
for being conservative on social issues. But in her decisions on matters involving business, her reputation is less
well-known than it should be.
In addition, her public remarks in speeches suggest a point of view that would favor the reform of
the legal system.
In a 2003 speech to the Federalist Society at Harvard Judge Jones was quoted to say:
"Seldom are employment discrimination suits in our court supported by direct evidence of race or
sex-based animosity. Instead, the courts are asked to revisit petty interoffice disputes and to infer invidious motives from
trivial comments or work-performance criticism. Recrimination, second-guessing and suspicion plague the workplace when tenuous
discrimination suits are filed . . . creating an atmosphere in which many corporate defendants are forced into costly
settlements because they simply cannot afford to vindicate their positions."
While this view has been expressed by many practitioners and some academics, it is rare to
see a judge identify this trend with such candor.
Judge Jones did not reserve her criticism for employment cases, alone, but took aim at the
plaintiffs' establishment and its penchant for dressing up its profit motives in the vestments of social justice:
"While the historical purpose of the common law was to compensate for individual injuries, this new
litigation instead purports to achieve redistributive social justice. Scratch the surface of the attorneys' self-serving press
releases, however, and one finds how enormously profitable social redistribution is for those lawyers who call themselves
'agents of change.'"
Judge Jones also referred to Philip Howard's books, The Collapse of the Common Good and The
Lost Art of Drawing a Line, as examples of critiques she found convincing.
She concluded that the modern trend of the law was toward "nihilism", reflecting Western
society's loss of focus on enduring truths:
"The problem with legal philosophy today is that it reflects all too well the broader post-Enlightenment
problem of philosophy . . . The whole of modern thought has been a series of heroic attempts to reconstruct a world
of human meaning and value on the basis of our purely mechanistic understanding of the universe."
"The traditional Western beliefs in the structural integrity of law, its ongoingness, its
religious roots, its transcendent qualities, are disappearing not only from the minds of law teachers and law students but
also from the consciousness of the vast majority of citizens, the people as a whole; and more than that, they are disappearing
from the law itself. The law itself is becoming more fragmented, more subjective, geared more to expediency and less to morality.
. The historical soil of the Western legal tradition is being washed away . and the tradition itself is threatened with collapse."
Her critique contends with the best that Burke had to offer for his own time.
Will O'Connor's Replacement Be a Swinger?
7:52 am edt
Orin Kerr, writing in the L.A. Times
, speculates that even if O'Connor is replaced by a consistent conservative jurist, the impact on the Court might be minimal.
To see why, assume that O'Connor is replaced by a strong conservative, such as Judge J. Michael Luttig of the 4th Circuit
Court of Appeals. The balance on the court would change, but only somewhat. Kennedy (for whom I clerked) would remain as a
key swing vote.
Kennedy often votes with the more liberal justices to form a liberal majority in major cases. He has
voted to uphold Roe vs. Wade, and he wrote the opinions that struck down sodomy laws and invalidated the death penalty for
juveniles. All these decisions would remain intact.
Tort Reform and Economic Growth
7:45 am edt
Nolan Finley, writing in the Detroit News
, makes the point that excessive litigation hurts workers and their jobs:
Of course, there are cases when the company's products do cause harm, and lawsuits are legitimate. But the legal system
makes filing a frivolous suit too tempting.
* * *
Tort reform is an economic growth issue. Unless the doors of the nation's courtrooms are sealed against the legal hucksters
who are draining America's job providers, then we can expect fewer jobs.
James Brown - Feeling Better
7:36 am edt
U.S. District Judge Sidney Schenkier dismissed
the complaint of Jacque Hollander who had accused soul singer James Brown of causing her to contract Grave's Disease by raping
her 17 years earlier.
Judge Schenkier ruled that Hollander's suit was barred by a two-year statuted of limitations.
De-Throning the King of Torts?
7:28 am edt
of the Millberg Weiss investigation and background color on Bill Lerach.
Saturday, July 2, 2005
Raising the Stakes
9:45 am edt
After preparing for months for a battle to replace Chief Justice William H. Rehnquist, conservative and liberal groups
were caught by surprise yesterday and immediately began reworking their strategies for a fight that they believe will be even
more ferocious and carry higher stakes.
Activists on both sides said the retirement of Justice Sandra Day O'Connor, who has been a crucial swing vote compared
with Rehnquist's reliable conservatism, gives conservatives an unexpected chance to shift the court rightward. Liberals, anxious
to prevent such a move, said they must pour more money and energy into a campaign to educate Americans about the role O'Connor
played and the importance of replacing her with a fellow centrist.
O'Connor, who consistently played the role of a swing vote in many close decisions, leaves activists on both
sides struggling for leverage to move the Court in one direction or another.
While a nomination fight over a Rehnquist replacement would have been a bruising battle, the fight over O'Connor's
replacement will be even more spectacular because it raises the prospects of converting her swing vote into a consistent conservative
Friday, July 1, 2005
Support for the Two-Fer Theory
1:15 pm edt Lyle Denniston
also speculates on the possibility that the White House will adopt a strategy that contemplates two Supreme Court nominations:
For the first time since President Bush took office in 2001, he is reasonably assured that he will be able to name two
new Justices to the Supreme Court. Given his widely reported desire to give a Court seat to his longtime aide, now Attorney
General Alberto Gonzales, one of the nominations very likely will be his. But perhaps not the first seat, the one to be vacated
by Justice Sandra Day O'Connor.
The White House and Justice Department -- and the outside groups that will be allowed to have influence over the process
-- can now definitely shift to a two-nomination strategy. It provides a truly unique political -- and jurisprudential -- opportunity.
Gonzales, about whom the most conservative commentators and advocates have had some genuine doubt, can be given one of the
seats and still there would be the opportunity to pick someone more reliably conservative for the other seat. That could turn
the tide, ideologically, on the Court.
Gonzales is probably marginally more conservative than O'Connor, but not enough to commend him to the President's staff
and followers now as her successor. The O'Connor seat, so centrally important because of the role she personally has come
to play, is likely to be seen in the political community as the more meaningful opportunity for "regime change" at the Supreme
The seat of the Chief Justice, of course, is more important symbolically. But given Rehnquist's conservatism, not a whole
lot would be gained by the President's political followers if someone conservative were named when that seat becomes available.
The bottom line of this sort of speculation: O'Connor's seat goes to someone other than Gonzales, and he is kept on hold
for the next seat, the Chief Justice's. The President would still be able to reward Gonzales in the way that he seems to wish,
and would able to make a major political statement by naming the first Hispanic-American to the Court -- and, no less, to
the Chief Justiceship.
Doubtless the potential for two nominations gives the current administration the ability to shape the face of the
Court for many years into the future.
Could There Be A Supreme Court Two-Fer?
12:53 pm edt
No Nominee Until At Least Next Week
12:52 pm edt
The White House is reporting
that the President will not finalize his decision on a nominee until he returns from the G8 summit on July. (Via HowAppealing
Will The Next Supreme Court Justice Be Female?
11:11 am edt Tom Goldstein
speculates that O'Connor's retirement fuels the possibility that President Bush will nominate one of the leading female contenders
as a replacement: Janice Rogers Brown
, Priscilla Owen, and Edith Jones
10:55 am edt
“This is to inform you of my decision to retire from my position as an associate justice of the Supreme Court of the
United States, effective upon the nomination and confirmation of my successor. It has been a great privilege indeed to have
served as a member of the court for 24 terms. I will leave it with enormous respect for the integrity of the court and its
role under our constitutional structure.”
ABA and Rule 11
10:43 am edt
Phone: 404-353-4833 | email@example.com
Jonathan B. Wilson is an Atlanta attorney at the law firm of Taylor English Duma LLP. Jonathan B. Wilson
provides legal advice to investors, companies and business executives involving corporate law, securities law, SEC matters,
intellectual property, website and Internet legal issues, start-ups, limited liability companies, partnerships, 1934 Act matters,
outsourcing, strategic alliance agreements, contracts, and other matters of importance to growing private and publicly-traded