Jonathan B. Wilson

Legal Resources
Business Law Updates
Out of Balance
Legislation for Renewable Energy

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 (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.

Archive Newer | Older

Saturday, October 29, 2005

The Libby Indictment
Vice President Cheney's Chief of Staff, Lewis (Scooter) Libby, was indicted yesterday on several counts of perjury and obstruction of justice. 
Charges of lying under oath are indeed serious, especially when the oath is taken before a grand jury in an investigation into a national security matter, but at first glance the charges against Libby seem, well, underwhelming.  As the WSJ reports:
according to the indictment, Mr. Libby did a little digging, found out who Joe Wilson's wife was, and apparently told Judith Miller of the New York Times, who never wrote it up, and Matthew Cooper of Time magazine, who put it into print after Mr. Novak's column had run. What's more, he allegedly did not talk to Tim Russert of NBC about it, although he claimed that he had. Mr. Libby then didn't tell a grand jury and the FBI the truth about what he told those reporters, the indictment claims.
The facts at issue -- who said what to whom and when -- will be the heart of Libby's trial, but these facts are ephemeral things. 
Persons at high levels in politics speak to each other and to reporters all the time.  The conversations Libby may or may not have had with Tim Russert, Judith Miller and other reporters would not have been remarkable at the time.  Only after Joe Wilson's allegations came out did the substance of Libby's conversations become noteworthy.  Two years after the fact it is not at all unusual that Libby might not accurately recall all of the details of his conversations, or that some other witness might recall those conversations differently.
But to what end does this inquiry apply?
During Monicagate opponents of President Clinton said that his lying under oath merited impeachment because "no one was above the law."  Clinton's lie was straightforward: Did he or did he not have sex with Monica? 
Libby's supposed lies: I did not did not speak about Valerie Plame with Tim Russert, etc., -- are not nearly as direct as Clinton's.
Libby was not indicted for "outing" a CIA agent, as Joe Wilson famously alleged.  Much of the momentum behind this story comes from that allegation, which has now been put to rest.  No crime was committed as a result of (or at least no one will be prosecuted for) the outing of Valerie Plame.
If so, Libby's inconsistent recollections -- or his recollections which are inconsistent with other witnesses recollections -- are so much more banal.  Libby is not alleged to have lied about a crime or even to have lied about the cover-up of a crime.  This prosecution will be about Libby's lying about a non-coverup of a non-crime. 
That subject would not seem to merit the effort and expense the prosecution will require.
8:06 am edt 

LARA Passes House
As expected, the Lawsuit Abuse Reduction Act passed the House on Thursday, 228-184.  The bill is unlikely to pass the Senate, however. 
7:48 am edt 

Friday, October 28, 2005

Lessons for the Next Nomination
From today's WSJ:
The next nominee is not just about the Supreme Court but about fortifying Mr. Bush's political standing and bringing some forward momentum to his Presidency. Paradoxically, a judicial fight over philosophy is likely to help him. It will rally his core supporters, something he'll need if there are indictments in the Valerie Plame "leak" investigation. A debate would also educate the country about what is at stake in these Supreme Court nominations.
In choosing Ms. Miers, Mr. Bush tried to avoid such a debate, perhaps because he thought he had enough other fights on his hands. But the avoidance cost him much more than had he lost after a pitched battle on principle. The biggest lesson of the Miers nomination is that Mr. Bush can't avoid the battle for control of the Supreme Court that he promised Americans he would make in two elections.
7:35 am edt Hijacker Arrested
One of the strangest, and longest running, stories in the rough-and-tumble world of web litigation is that of Stephen Michael Cohen who has finally been arrested for his role in allegedly hijacking the domain.
7:28 am edt 

Thursday, October 27, 2005

Miers Nomination Withdrawn
Echoing a scenario outlined by Charles Krauthammer earlier this week, President Bush today "reluctantly" accepted Miers' decision to withdraw her nomination. 
10:10 am edt 

Alternatives to Special Prosecutors
Are special prosecutors out of control?  These Georgetown Law profs suggest an alternative
8:32 am edt 

Trial Lawyers and Health Care
The Manhattan Institute has released another study on Trial Lawyers, Inc., this time looking at the impact of litigation on health care.  (Background on PointOfLaw). 
7:52 am edt 

Three Cheers for UK Capitalists
According to a study by the Miliken Institute, the UK is the number 1 country in the world for entrepreneurs to get access to capital.  The U.S. is number 4, rising from number 6 in 2004.
7:48 am edt 

Wednesday, October 26, 2005

ACLU Challenges Pat-Down Searches at NFL Games
SportsLawBlog describes a case brought by a high school teacher (with a little help from the ACLU) against the Tampa Bay NFL franchise for its policy of mandatory pat-down searches of fans entering the stadium.
I hope I'm not the only one getting a little bit tired of the ACLU's relentless efforts to make the world safe for terrorists.  If pat-down searches are permissible at airports and courthouses why not stadiums?
Put another way: after 9/11 the mere fear of litigation prompted Congress to fund a settlement pool for potential plaintiffs.  Persons injured and the surviving familes of the deceased who accepted funds from the pool were required to give up their ability to sue the airlines, property owners and others who could have arguably failed to prevent the destruction.
If a terrorist managed to sneak a weapon into a stadium and cause damage, does anyone seriously believe that the plaintiffs' lawyers wouldn't be waiting in the parking lot to sign up clients to sue the stadium, the team, the NFL and so on?  If so, doesn't the NFL and its teams have an obligation to mitigate their risk by requiring pat-down searches?
1:13 pm edt 

Thursday Vote on LARA
As Pat Cleary over at the NAM blog reports, the Lawsuit Abuse Reduction Act has been placed on the House calendar and a vote is possible on Thursday.  RedState has a fairly well-informed debate regarding the bill which re-enacts the mandatory sanctions provided under Rule 11 in 1983 (removed in 1993) but also provides for a three-strikes-and-out provision for repeat violators of Rule 11 and federalism-defying provisions that would extent Rule 11 into state court proceedings in certain circumstances.
7:31 am edt 

Tuesday, October 25, 2005

Are Bloggers Journalists?
NY Times reporter Judith Miller spends 85 days in jail on contempt charges for refusing to reveal a source and now Congress decides that we need a federal shield law for reporters
Heavens forfend!  Bloggers work from home in their pajamas while journalists have blown-dry hair and get invited to Sunday morning talk shows. 
Unfortunately, statements recently uttered by Senators Cornyn and Lugar to the effect that bloggers are not "real journalists" are only more current examples of technology outpacing legislators' understanding of how the world really works.
J. Craig Williams correctly notes the historical irony in what Cornyn and Lugar have said.  Much of what passed for "journalism" in the earliest days of our republic was simply the 18th century version of blogging.
Benjamin Franklin, John Adams and Alexander Hamilton all published pamphlets, often financed with their own funds, making anonymous comments on political issues.  If the First Amendment had any historical context it was the context of 18th century pamphleteering: anonymous, chaotic, sometimes factually inaccurate and yet vital to communicating (sometimes unpopular) political opinion to the masses.
8:35 am edt 

State Bar of Georgia Suffers Backlash on Tort Reform
When the Georgia legislature took up the question of tort reform in January of this year, the State Bar of Georgia, a mandatory bar for lawyers licensed in the state, opposed every variant of reform.  
The State Bar is able to lobby through voluntary contributions to its legislative program.  For Georgia lawyers, the "voluntary" contribution is tacked onto your annual invoice for bar dues but can be removed -- if you remember to read the fine print and affirmatively decide to deduct the additional fee from your invoice.  Without the voluntary contributions, the State Bar would be prohibited from using its mandatory dues to engage in political action. 
This year, however, funds are running low.  The Bar's President is circulating a letter asking Georgia lawyers for additional voluntary contributions. 
Could it be that the Bar's Board of Governors, long-dominated by trial lawyers, is feeling a backlash from its policy of opposing tort reform?
7:32 am edt 

Monday, October 24, 2005

Fund: Miers Withdrawal Inevitable
In today's WSJ:
I believe it is almost inevitable that Ms. Miers will withdraw or be defeated. Should that happen, it is important President Bush understand how it really happened. While he acted out of sincerity, the nomination was quickly perceived by many as merely a means to a desired end: getting another vote for his views on the court. While some conservatives backed her because they honestly believed she would rule independently with an understanding of the limited role of judges envisioned by the Founders, that message was drowned out by accusations of cronyism and mediocrity.
8:43 am edt 

Saturday, October 22, 2005

A Leading Predictor of Tort Reform?
The U.S. Chamber of Commerce's Institute for Legal Reform issued a press release on October 18th calling for calling on Congress to pass the Protection of Lawful Commerce in Arms Act, the Personal Responsibility in Food Consumption Act and the Lawsuit Abuse Reduction Act.
Within days the House passed the Cheeseburger bill, and the gun manufacturer's shield bill.  
The close timing of the ILR's announcement and the passage of these two bills suggests a close coordination between the ILR and Congressional leadership.  Congress does not leap at every pronouncement of the Chamber, but rather it may be that the Chamber knew that action was forthcoming and timed their announcement to magnify the appearance of their involvement.  If so, their announcement is something of a leading indicator of Congressional action.
If that is the case, one wonders whether Congress might soon act on the Lawsuit Abuse Reduction Act which has been languishing since it was passed out of a House committee several months ago. 
The LARA would put teeth back into Rule 11 but also creates a federalism problem through its attempt to force Rule 11 onto state court proceedings in some circumstances. 
If Congress Acts on the LARA soon I'll become a believer in the ILR's ability to predict the passage of bills. 
7:54 am edt 

Friday, October 21, 2005

Cheeseburger Bill Passes House
The Cheeseburger bill, more properly known as the Personal Responsibility in Food Consumption Act of 2005, passed the U.S. House by a bipartisan majority of 306-120. 
Like the gun manufacturer shield law recently passed by Congress, this bill is an industry-specific reaction to a series of lawsuits brought by plaintiffs' lawyers seeking to impose liability on restaurants and food manufacturers for the obesity and related health problems of consumers.
The food industry, much like the gun industry, has been a target of "regulation through litigation" in recent years, as witnessed by the California AG's recent lawsuit over the labeling of french fries. 
(Obesity litigation background on PointOfLaw). 
7:24 am edt 

Thursday, October 20, 2005

Congress Shields Gun Manufacturers
The House today passed the Protection of Lawful Commerce in Arms Act, shielding gun manufacturers from liability. The legislation follows nearly a decade of litigation in which individuals, and with increasing frequency, municipalities, have tried to twist the tort law to impose liability on manufacturers for persons injured in gun violence. 
David Kopel at Volokh has extensive coverage.  Background on Overlawyered. 
While the tactic of industry-specific tort reform is less politically effective, in my view, than reforms that modify the rules of litigation generally, the arms manufacturing industry is one that has been under assault by special interest groups.  That assault, in some quarters, has been aided by compliant judges willing to make new law in the interests of social policy. 
2:37 pm edt 

Hackers with White Hats
An aggrieved lawyer, frustrated by his inability to prevent an unknown party from infringing on his client's trademarks, has proposed an singularly bad idea: that trademark holders be permitted to "hack" into the websites of alleged infringers or engage in denial-of-service attacks against infringing sites in order to bring them down.
Ronald Coleman and Matthew Carlin are attorneys at the New York firm of Gibney, Anthony & Flaherty, LLP and represent trademark holders who seek to shut down the websites of alleged infringers.
In a recent article, they describe the frustration they experienced on behalf of a client in which they identified an infringing site, obtained a default judgment and injunctive relief, succeeded in bringing down the site from several ISPs, only to have the site reappear (presumably outside the U.S.) on a server that seems unconnected to any commercial Internet service provider. 
As a remedy for this clearly frustrating turn of events, Coleman and Carlin suggest and provide a legal rationale under which they believe the court should authorize their client to either hack into the offending site, or attack it through a DOS attack or other technical means in order to bring it down.   
The heart of their legal argument is that the court, sitting in equity, has the power to render legal what would otherwise be illegal if it serves the cause of equity.
Coverage in the libertarian/techie PolitechBot site was negative on the usual libertarian grounds.  But there is a more nuanced (and lawyerly) reason.
First, while courts in equity do have substantial powers, it overstates the principle to suggest that courts have "the authority to order the doing of something that, absent its order, would otherwise be illegal." 
While courts in equity may issue orders for acts that would otherwise be actionable, that power is not unlimited.  On the contrary, the power is exceedingly limited by case law and only in fairly constrained circumstances may U.S. courts issue orders for affirmative injunctive relief.
No one would suggest, for example, that the successful plaintiff who obtains injunctive relieve against his neighbor's too-loud stereo could obtain a further court order that authorizes the plaintiff to destroy the stereo or steal it. 
Second, and perhaps more importantly, is the fact that the Congress has already developed a reasoned balancing of the interests of intellectual property rights-holders and website operators through the Digiltal Millenium Copyright Act, the Communications Decency Act and some related statutes.
Under the DMCA, for example, aggrieved copyright holders may, by serving a signed notice containing certain requisites upon an ISP, require an ISP to take down an infringing customer's website.  The website holder may respond, following the requirements of the statute, to restore the site if it disputes the claims of infringement.
Congress rightfully excuses the ISP from liability so long as the ISP follows the DMCA's notice-and-takedown requirements.  Rather than require the ISP to make difficult judgments over the parties' copyright interests, the parties must take their claims to court if they cannot agree.
Coleman and Carlin's suggestions would abandon this balanced legal approach in favor of cyber-vigilantism, in which a party who obtained a default judgment and an injunction would be empowered to fire electronic rounds through the web at his elusive quarry.
These cyber vigilantes would utilize the resources of their own ISP, and all of the networks through which their communications would travel, before reaching the offending server.  If that server was a shared resources (i.e., one that housed hundreds or even thousands of other, innocent websites) the vigilante could cause disruption or damage to those innocent websites as well.
It is easy to emphathize with Coleman and Carlin and to understand the frustration that they, and their client, must feel.  Suggesting that aggrieved copyright owners should be empowered to "hack" their adversaries, however, is a bad idea whose time should never come. 
8:25 am edt 

Ben & Jerry's: Capitalist Enviro-Pirates?
So says Stephen Moore in today's WSJ
7:49 am edt 

Bork on Miers: Keep Singing Until You Get it Right
In yesterday's WSJ, the former nominee wrote:
Some moderate (i.e., lukewarm) conservatives admonish the rest of us to hold our fire until Ms. Miers's performance at her hearing tells us more about her outlook on law, but any significant revelations are highly unlikely. She cannot be expected to endorse originalism; that would alienate the bloc of senators who think constitutional philosophy is about arriving at pleasing political results. What, then, can she say? Probably that she cannot discuss any issue likely to come before the court. Given the adventurousness of this court, that's just about every issue imaginable. What we can expect in all probability is platitudes about not "legislating from the bench." The Senate is asked, then, to confirm a nominee with no visible judicial philosophy who lacks the basic skills of persuasive argument and clear writing.
But that is only part of the damage Mr. Bush has done. For the past 20 years conservatives have been articulating the philosophy of originalism, the only approach that can make judicial review democratically legitimate. Originalism simply means that the judge must discern from the relevant materials--debates at the Constitutional Convention, the Federalist Papers and Anti-Federalist Papers, newspaper accounts of the time, debates in the state ratifying conventions, and the like--the principles the ratifiers understood themselves to be enacting. The remainder of the task is to apply those principles to unforeseen circumstances, a task that law performs all the time. Any philosophy that does not confine judges to the original understanding inevitably makes the Constitution the plaything of willful judges.
By passing over the many clearly qualified persons, male and female, to pick a stealth candidate, George W. Bush has sent a message to aspiring young originalists that it is better not to say anything remotely controversial, a sort of "Don't ask, don't tell" admonition to would-be judges. It is a blow in particular to the Federalist Society, most of whose members endorse originalism. The society, unlike the ACLU, takes no public positions, engages in no litigation, and includes people of differing views in its programs. It performs the invaluable function of making law students, in the heavily left-leaning schools, aware that there are respectable perspectives on law other than liberal activism. Yet the society has been defamed in McCarthyite fashion by liberals; and it appears to have been important to the White House that neither the new chief justice nor Ms. Miers had much to do with the Federalists.
Finally, this nomination has split the fragile conservative coalition on social issues into those appalled by the administration's cynicism and those still anxious, for a variety of reasons, to support or at least placate the president. Anger is growing between the two groups. The supporters should rethink. The wars in Afghanistan and Iraq aside, George W. Bush has not governed as a conservative (amnesty for illegal immigrants, reckless spending that will ultimately undo his tax cuts, signing a campaign finance bill even while maintaining its unconstitutionality). This George Bush, like his father, is showing himself to be indifferent, if not actively hostile, to conservative values. He appears embittered by conservative opposition to his nomination, which raises the possibility that if Ms. Miers is not confirmed, the next nominee will be even less acceptable to those asking for a restrained court. That, ironically, is the best argument for her confirmation. But it is not good enough.
It is said that at La Scala an exhausted tenor, after responding to repeated cries of "Encore," said he could not go on. A man rose in the audience to say, "You'll keep singing until you get it right." That man should be our model.
7:32 am edt 

Wednesday, October 19, 2005

Towers Perrin Fights Back
According to Insurance Journal, the Physician Insurers Association of America has released a report that rebuts claims made by Jay Angoff and the Center for Justice and Democracy regarding the accuracy of Tillinghast Towers Perrin's annual summary of tort claim costs.
The CJD is a Naderite organization that routinely lobbies for legal provisions to encourage lawsuits and opposes attempts to reform the litigation system. 
While the details of the debate are somewhat arcane, Martin Grace does a good job of summarizing them.  The debate is important because the Towers Perrin annual reports on tort system costs are relied upon by most writers in the litigation reform field, as well as executive and congressional policymakers. 
The Angoff report argues, in essence, that the U.S. litigation system  (at least with respect to medical malpractice) does not need to be reformed because medical malpractice insurers actually make large profits.
The response, articulated by Professor Grace and in the PIAA reply, is that Angoff's claims regarding profitability are overstated.  While some med-mal insurers are profitable, isn't that the point of being in the insurance business?  If med-mal insurance ceases to be profitable for the insurers, they will exit the market, leaving physicians with no insurance and effectively forcing them out of the market. 
Unfortunately, overly credulous reporting in the mainstream media sometimes miss these fine points and portrary the debate as one between "greedy corporations" and "consumer advocates".  This oversimplification does the public debate a great disservice.
(Tip: PointOfLaw).
7:49 am edt 

Tuesday, October 18, 2005

Miers for Tort Reform
Some business leaders and Senate Republicans, like Sen. John Cornyn, are warming to the idea of the Miers nomination, claiming that her sentiments favor tort reform and cutting back on excessive litigation. 
8:05 am edt 

Sunday, October 16, 2005

New Talking Points on Miers
She's the best person for the job.
No, that's not it.
She's the best woman for the job.
No, that won't do.
She's very evangelical.
No, that's not what we meant either.
She's really, really, loyal.
No that didn't come out quite right.
She's very conservative, a real strict constructionist.
Well, no, not really.
She's goes to church alot.  I mean like every Sunday.
No, that's not it either.
She's got great attention to detail.  And she's punctual.
Yeah, that's the ticket: Miers for the Supreme Court, she's certain to show up.  On time.  Every time.  
3:30 pm edt 

Mark Steyn Skewers the MSM
When Mark Steyn gets on a roll I just can't stop laughing:
I'm aware the very concept of "the enemy" is alien to the non-judgment multicultural mind: There are no enemies, just friends whose grievances we haven't yet accommodated.
3:25 pm edt 

Saturday, October 15, 2005

Constitution Day in Iraq
Voters in Iraq went to the polls today to vote on the proposed constitution.  While the process has been far from perfect, it is remarkable in many respects and must surely presage progress both for Iraq and for the middle East.
7:09 am edt 

Friday, October 14, 2005

Tort Reform Saves Lives
In their recent paper, Emory professors Paul Rubin and Joanna Shepherd use statistical death rates to prove that tort reform (which they define as caps on punitive and non-economic damages, products liability reform and higher evidentiary standards for punitive damages) actually saves lives.
The classical law and economics position hypothesized that tort reform would increase accident rates as producers would have fewer incentives to make products safe as litigation became less frequent and less costly.  (In the language of economics, the hypothesis was that producers would internalize less of the cost externalities of their products).
In fact, these professors show, the opposite is the case.  As tort reform decreases externalities (costs) for producers, producers are able to lower prices.  Lower prices allow more purchases of safety equipment and accident-avoiding products by consumers, thereby increasing safety and reducing accidents.
Professors Rubin and Shepherd calculate that tort reform over the past two decades as avoided over 14,000 accidental deaths.
While their paper is written for an academic audience, a simple example demonstrates the intuitive power of this argument.
Imagine a producer of automobiles.  Every automobile carries with it a risk of accidental death.  The producer calculates this risk (the external cost of death and resulting litigation) in calculating the cost of production and the price it must charge for the car.
As tort reform produces fewer lawsuits and lower external costs for the producer, the producer may either lower the price of the car (making no changes to its design) or shift costs from externalities (i.e. litigation) to safety improvements (better designs, better airbags, etc.) 
If external costs fall and price remains constant a producer can "afford" to make its car safer. 
Of course some producers may choose not to make their cars safer or may choose to cut their prices.  If different producers make different choices along the continuum of safety versus price, consumers have a choice between cheaper (but riskier) cars versus more expensive (but safer) cars.
Rubin and Shepherd's paper no doubt will provoke both an academic and a popular discussion on the merits of tort reform and the roles of risk and safety, but their work in applying statistical evidence to the reforms of the past decades will be an invaluable guide to advancing the cause of civil justice reform.
8:59 am edt 

Thursday, October 13, 2005

Al Gore Loses It
While in Sweden Al Gore said that the U.S. would be a different country if he were President and that it would not be a country that "routinely tortures people." 
One of the character traits that scared some voters away from Gore in the 2000 elections was his tendency to hyperbole.  Remember his claim to have "invented the internet"?
Gore's most recent rant confirms this view.  Even more, however, is the extent to which it shows how the firewall between legitimate criticism and anti-American propaganda has broken down.
The U.S. is now engaged in an extended struggle with a vicious, murdering enemy that, in its own words, intends to take power over an extended territory in the middle east, killing Americans as it goes, before trying to topple Israel, the only democracy in that region.  Among its weapons, this Islamic fascist movements seeks to attack America through the "battlefield of the media", discrediting American motives and sowing the seeds of new recruits through disinformation.
America is not perfect but it is also not a country that "routinely tortures people".  Gore's words not only discredit himself, but give aid to our enemies.  On the battlefield of the media, his latest remarks take aim at his own country. 
Gore's fellow Democrats, who value their patriotism and wish to see America prevail in the struggle against terrorism, would do well to counsel him silence.
6:59 am edt 

Wednesday, October 12, 2005

The Internet Just Wants to be Free
I couldn't resist borrowing this excellent title from the Monteal Gazette, which has editorialized against the U.N.'s attempt to grab control of the Internet from the U.S.:
This decade has seen few ideas as bad as the proposal to hand administration of the Internet over to the United Nations, or some new international body. In Tunisia next month, at a UN Summit on the Information Society, this nasty little scheme will be making headlines.
For ordinary users, the Internet is utterly non-hierarchical. But somebody has to manage the address system, and that job was given, early in the Internet era, to something called the Internet Corporation for Assigned Names and Numbers. It's a non-profit, public-private partnership set up by the U.S. government, with an international board of directors.
In the words of its website, "ICANN is responsible for co-ordinating the management of the technical elements of the domain name system to ensure universal resolvability so that all users of the Internet can find all valid addresses. It does this by overseeing the distribution of unique technical identifiers used in the Internet's operations, and delegation of Top-Level Domain names (such as .com, .info, etc.)."
"Universal resolvability," a phrase only an engineer could love, means open access to the whole Internet, from wherever your own computer is located. The more nodes a network has, the more useful the network, and under the quasi-anarchistic stimulus of millions of users, all loosely and benignly supervised by ICANN, the Internet has become one of the great assets of mankind.
But the statist busybodies at the UN are determined to get their hands on the Internet.
The U.N.-sponsored Working Group on Internet Governance is planning to raise the issue of a U.N. takeover at an upcoming meeting in Tunisia. 
As one blogger wrote, "when the European Union lines up with oppressive regimes backing the statist UN running the 'net, alarm bells ought to be going off loudly."
7:16 am edt 

Miers and the Second Bush Term
Brendan Minister parses the implications of the Miers nomination and what it might mean for the balance of Bush's second term if that nomination is scuttled.
Would President Bush, with sagging popularity and an outbreak of stubbornness in his own party break to the left in an effort to move his agenda forward?
While that might sound like the storyboard for a left-wing version of a Tom Clancy novel, it seems to be the genesis behind Miniter's argument against bucking the President.
While Miniter's arguments are usually quite persuasive, this one falls a little short.  The President was clearly surprised by the chilly reception Miers received from conservatives, but his reaction if her nomination withers on the vine will not be a lurch to the left.
Conservatives have been rightfully mystified by some of this administration's policies: excessive pork, spending increases for liberal big government programs, etc.  But President Bush cannot hope to create an agenda as a 'centrist' in his last two years in office.
James Pinkerton sees Bush's mandate in the "war president" label.   For better or worse, President Bush sees his presidency through the lens of the war against terror and even his Supreme Court picks reflect his need to be supported in that effort.
Rejecting the Miers nomination will no doubt confound the administration, but it will not bring a split to the Republican party or a leftist renaissance in the White House.  It might bring about exactly the kind of self-conscious issues-oriented discussion that would highlight the President's conservative principles.
7:07 am edt 

Tuesday, October 11, 2005

U.N. Struggles to Take Over Control of Internet
The moral and political braintrust that brought us the Oil-for-Food Scandal, the genocide in Sudan and billion dollar budget shortfalls now wants to take over the Internet.
While some are irritated "beyond words" I still have a few left.
The Clinton administration bears much of the blame for the current situation which allows the U.N.'s bureaucrats to make this power play.  It was under Clinton that the U.S. Department of Commerce entered into its much-amended "Memorandum of Understanding" with ICANN - the Internet Corporation for Assigned Names and Numbers.
ICANN administers the root servers that, ultimately, make the Internet and the World Wide Web run as they currently do.
Much is amiss in this arrangement.  As I've written elsewhere, ICANN is a quasi-governmental agency, having its power solely by virtue of a delegation of authority made by the U.S. Government and yet outside the scope of Constitutional challenge by virtue of the Memorandum of Understanding.  This was a delegation of power, but not responsibility, and accounts for much of the animosity now directed at ICANN.  (See, e.g., American Bar Association 2001 Report of the Section of Public Utility, Communications and Transportation Law, at 236-237, not available online). 
But to further abdicate U.S. responsibility in favor of the United Nations supplants mere obstinacy with idiocy.  In 1994 the idea of ICANN - a California non-profit corporation - had some appeal: a non-profit "bottoms up" organization that would build "consensus" among Internet users.
After September 11, Hurricane Katrina and the lessons we've learned about the fragility of our world and its economy, however, we can ill-afford to cede fundamental control of the world's marketplace to an international debating society in which Cuba, Iran, North Korea and Libya have as much influence as we.
8:11 am edt 

ABA Coverage of Georgia Offer of Judgment Rule
The ABA Journal (online edition) has a short piece on Muenster v. Suh.
Predictably, the ABA quotes the plaintiff's lawyer and a law professor who supports the decision of the Superior Court that struck down Georgia's Rule 68 as unconstitutional.  The piece quotes without analysis the blanket statement of the plaintiff's lawyer, Vincent Sowerby, that the Rule would have "shut down tort plaintiffs, shut down their lawyers and helped big business."
What makes this so remarkable is that the defendants in Muenster v. Suh were the three individual members of the Suh family who were involved in the motor vehicle collision that sparked the litigation. 
After passage of Georgia's tort reform bill in early 2005 the Suh family offered to settle the plaintiff's claims for $6,300.  The plaintiff, perhaps believing he might get lucky in the litigation lottery, declined the offer and insisted on a jury trial.  At trial, the jury awarded the plaintiff only $2,859.93.
The cost to the defendants of placating the plaintiff's ego and desire for a potential windfall was $4,590.85 in attorneys' fees from the time the settlement offer was declined through trial.  Under Rule 68, the defendants were entitled to have the plaintiff pay those excess attorneys' fees (less the amount of the verdict).
To the media (or at least the pro-plaintiff ABA Journal), this outcome somehow benefits "big business."  In reality, of course, it benefits defendants of all sizes, including the Suh family, who promptly try to settle cases for a reasonable amount.  The only beneficiaries of the Muenster ruling are the plaintiffs' lawyers who will safely persist in counseling their clients to reject reasonable settlement offers in the hopes of a windfall from the jury. 
The losers in this scenario are everyone else.  Each of us who buys goods and services in the U.S. economy pays a portion of the "tort tax" through higher prices as producers increase the price of their products to defray the cost of excess litigation.
Sadly, the ABA Journal missed that part of the story.
7:42 am edt 

Sunday, October 9, 2005

Are Troops Well-Suited for Disaster Duty?
Former army officer and Atlanta resident Timothy Furnish says "no."  He argues that the training and resources available to the military are inappropriate for the role they've been given in recent disasters. 
7:38 am edt 

Saturday, October 8, 2005

Municipal Loser-Pays Rule Stricken
The Village of Glenview, Illinois was troubled by the high cost of defending legal challenges to its ordinances.  Like any frequent defendant it examined the root causes of excessive litigation and judged that a loser-pays rule would cut down on needless lawsuits, passing a municipal ordinance that anyone who sued the Village over one of its laws and lost would have to pay the Village's attorneys' fees.
The Illinois Court of Appeals recently ruled the ordinance unconstitutional and the Illinois Supreme Court declined to review the case. 
While this is probably the right outcome -- you wouldn't want to allow government to evade the constitution simply because plaintiffs feared paying the government's attorneys fees if they lost -- it does speak volumes about the impact of excessive litigation and the root cause of that problem.
If American municipalities feel they need a loser-pays rule to keep away the wolves, doesn't that suggest that loser-pays would be beneficial for all of us?
3:05 pm edt 

GC South Roundtable
I'll be participating in a roundtable discussion of the Disney/Michael Ovitz corporate governance decision for GC South magazine on November 2nd.
The Delaware Chancery Court found for the defendants, upholding fundamental principles involving the business judgment rule, but harshly criticized Disney's board.  The case is helpful as a teaching tool, drawing distinctions between board conduct that is culpable and best practices that boards ought to follow.
11:45 am edt 

ATRA Convention in November
I got word just yesterday that I'll be speaking on Out of Balance at the American Tort Reform Association Fall Legislative Conference on Tuesday November 15th. 
The Conference is at the Atlanta Downtown Ritz Carlton.  If you would like to attend, please sign up through the ATRA
11:36 am edt 

Thursday, October 6, 2005

Another Administration Mistep
Peggy Noonan on the Miers nomination. 
7:51 am edt 

Out of Balance Profiled in GC South Magazine
Out of Balance was given a brief profile in the September issue of GC South Magazine. 
7:40 am edt 

Wednesday, October 5, 2005

Dr. Phil - Class Action Defendant
Plaintiffs, who had sued television therapist and personality Dr. Phil over his weight loss advice, shakes and other products, are seeking nationwide class status for their case. 
11:05 am edt 

George Will on Miers Nomination
George Will writes:
Senators beginning what ought to be a protracted and exacting scrutiny of Harriet Miers should be guided by three rules. First, it is not important that she be confirmed. Second, it might be very important that she not be. Third, the presumption -- perhaps rebuttable but certainly in need of rebutting -- should be that her nomination is not a defensible exercise of presidential discretion to which senatorial deference is due.
It is not important that she be confirmed because there is no evidence that she is among the leading lights of American jurisprudence, or that she possesses talents commensurate with the Supreme Court's tasks. The president's "argument" for her amounts to: Trust me. There is no reason to, for several reasons.
Sadly, there is little to dispute in Will's reasoning.  Harriet Miers may be a brilliant attorney and I, for one, would be delighted to see an experienced corporate lawyer on the Court.
Unfortunately, it is not enough to trust the President on this one.  His choice of a close associate has subjected him to charges of cronyism from both the left and the right and it's hard to see how the President can defend himself on those charges. 
9:35 am edt 

Tuesday, October 4, 2005

Alexander Hamilton Would Not Approve
Randy Barnett picks up the cronyism argument regarding the Miers nomination, quoting Alexander Hamilton on the role of the Senate in deterring the Executive from nominating his close friends and relationships to the Court.   
Has he been reading some of my old posts
6:52 am edt 

Monday, October 3, 2005

Painfully Impolitic
William Kristol is "depressed . . . demoralized".  David Frum calls it an "unforced error".  PowerLine is "disapointed."
I don't claim to have any special knowledge on the qualifications or judicial philosophy of Harriet Miers.  She might be the greatest Justice yet.  Or not.  But rather than judge the nominee, I can say something about the nominaiton. 
The President mis-judged this nomination.  Big time, as the Vice President might say.
At a time when the President is looking to rally his base, build his mandate and invest political capital in the possibility of transforming U.S. government in the time he has in office this President has succeeded in (a) giving his opponents no reason to approve his nomination, (b) giving his opponents ammunition with which to attack this nomination (cronyism, lack of qualifications, etc.) and (c) giving his supporters no reason to rejoice. 
For a presidency that at times (like the 2004 re-election campaign) seemed to float above the maddening dim through an ability to re-frame issues and capture fleeting majorities, this nomination not only falls flat but painfully so.
12:55 pm edt 

Some Conservatives Cool to Miers
In at least some conservative circles the President's latest Supreme Court nominee is getting a cool reception
The reaction of some, like Manuel Miranda and John Eastman, is that the President had scores of qualified and noted conservative scholars who could have taken O'Connor's seat.  Nominating one of them (like Judges McConnell, Luttig or Alito, for example) would have pushed the Court to the right and would have joined the issue in the confirmation battle.
By nominating a personal confidant, the President has taken a course that will avoid confronting Senate Democrats and will avoid a real debate on the issues.  In addition, by turning to a lawyer with no judicial record, the President has missed the opportunity to elevate a conservative scholar whose ideas and writings merited the exposure the nomination would have brought. 
10:05 am edt 

Background on Supreme Court Nominee Harriet Miers

The White House Announcement

Ms. Miers currently serves as Assistant to the President and Deputy Chief of Staff. Most recently, she served as Assistant to the President and Staff Secretary. Prior to joining the White House staff, Ms. Miers was Co-Managing Partner at Locke Liddell & Sapp, LLP, where she helped manage an over 400-lawyer firm. Previously, she was President of Locke, Purnell, Rain & Harrell, where she worked for 26 years. In 1992, Ms. Miers became the first woman elected Texas State Bar President following her selection in 1985 as the first woman to become President of the Dallas Bar Association. She also served as a Member-At-Large on the Dallas City Council. Ms. Miers received her bachelor's degree and J.D. from Southern Methodist University.

At Democratic Underground the chief complaint is that Miers has never been a judge.
7:59 am edt 

Bush Nominates Miers to Supreme Court
President Bush will nominate White House counsel Harriet Miers to Justice O'Connor's seat on the Supreme Court according to news sources
Miers has no judicial experience but is a former president of the Texas Bar Association.  A formal White House announcement is expected in about fifteen minutes. 
7:43 am edt 

Archive Newer | Older


Blog Roll


Join the mailing list

Phone: 404-353-4833 |

Terms of Use

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 companies.