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.
Wednesday, May 31, 2006
An Inconvenient Irrelevance
12:34 pm edt
Holman Jenkins belts out one of the better critiques
of Al Gore's latest movie
in today's WSJ:
That man-made carbon dioxide has a net planetary warming effect is an important hypothesis, one that science can make
stronger or weaker, but can't prove. It may be true, but a layperson only has to look into the antecedents of today's "consensus"
to realize it wouldn't be too surprising if tomorrow's consensus were that CO2 is cooling, or neutral, or warming here and
And evidence of warming is not evidence of carbon-driven warming. These are different things, at least until scientists
can be reasonably certain they've eliminated other factors and interrelationships that contribute to climate variability.
But scientists are not close to understanding or even knowing all the factors that play into "climate change," a process that
might as well be called "climate," since climate is always changing.
Finally, warming and what might cause warming are subjects entirely separable from the urge to gather up all the most
dire and extreme speculation about what a warming earth would be like for humans and present it as scientific "truth."
Mr. Gore's narrative isn't science, but science fiction.
Science fiction, however, is more entertaining than science.
And just about anything is more entertaining than a debate on the trade-offs and relative welfare-maximizing
outcomes of policy alternatives when it comes to global warming.
Should Congress mandate cuts in CO2 emissions? If so, by how much? What impact would such cuts have
on global warming, if any? Would that impact outweigh the cost of making the cuts?
These are serious questions and are truly at the heart of the global warming debate. If you're not prepared
to speak to these questions, you might be entertaining, but you're not serious.
Monday, May 29, 2006
Milberg Partners Job-Hunting
7:54 am edt
According to reporting
on Law.com, partners at the indicted plaintiffs' firm are circulating their resumes and cutting deals to leave.
Blawg Review #59
7:50 am edt
is now posted
with its Memorial Day theme. Thanks to the Editor for pulling this together over the holiday weekend.
Thursday, May 25, 2006
12:25 pm edt
11:17 am edt
Will be announced shortly after noon today.
What's the Problem?
7:39 am edt
In my post
today in the Ribstein v. Wilson debate on lawyer licensing, I ask Larry what is the problem he hopes to solve by eliminating
With Larry’s response
to my last point, I think the issue of lawyer licensing comes to a head.
Larry endorses my recommendation for a Presidential Blue Ribbon Commission, but he says that the panel should focus “on
problems in the market for legal services, not just one for abusive litigation.”
And that prompts me to ask, “What are the problems in the market for legal services
?” Larry’s position is that
lawyer licensing does not address these problems. In response to my contention that lawyer licensing ensures lawyer competence
and honesty, he conceded that the licensing contributes to these goals, but questioned, “How much, at what cost, and compared to what?
I’m not sure that Larry has articulated what he perceives to be the problems in the legal marketplace, so let me suggest
a few and see how lawyer licensing functions as a possible solution.
Wednesday, May 24, 2006
Blue Ribbon Commission
10:38 am edt
Larry Ribstein endorses
my idea of a blue ribbon Presidential commission to explore issues involving lawyers and litigation but thinks the focus
should be on lawyer licensing rather than on excessive litigation.
I think that the masses who are ready to "storm the citadel" (in Larry's words) are not chanting "lawyer licensing",
but our debate continues.
Tuesday, May 23, 2006
NYTimes Ignores Milberg Indictment
7:56 am edt
Walter Olson dissects
the Times' non-reporting on what should be an item of great interest to an institution that seems to delight in corporate
Perhaps someone should investigate the Times' connections to the famous plaintiffs' firm?
Ribstein v. Wilson on Lawyer Licensing
7:49 am edt
The debate continues in this week's featured discussion on PointOfLaw.
In today's post
, I unveil a modest proposal in which President Bush can "capture the moral high ground" and harness the energies of those
who would "storm the citadel" in protest against lawyers' antics.
Monday, May 22, 2006
Olson on Milberg
8:01 am edt
Is Lawyer Licensing Necessary?
7:51 am edt
Friday, May 19, 2006
The Milberg Weiss Indictment
8:35 am edt
The notorious plaintiffs' firm, Milberg Weiss, was indicted on Thursday
on charges of money laundering, racketeering and conspiracy. The central theme of the indictment is that two Milberg
partners, David Bershad and Steven Schulman, allegedly bribed individuals, including serial plaintiff Seymour Lazar, to select
their firm and act as lead plaintiff in Milberg's class actions. (Past coverage
on these pages).
While the Milberg Weiss firm, to many in the tort reform movement, represents many of the faults in our litigation system,
the firm's indictment should not cheer the champions of litigation reform and civil justice.
Coverage suggests that federal prosecutor used the firm's refusal to waive the attorney-client privilege as the trigger
to indict the entire firm. Since publication of the so-called Thomspon Memorandum
in 2003, federal prosecutors have explicitly linked their discretion to prosecute firms to the firms' willingness to waive
the attorney-client privilege.
This tactic undermines the very purposes of the attorney-client privilege and has sometimes worked to create injustices
when firms have waived the privilege to protect their organizations, "throwing under the bus" individuals within their organizations.
The attorney-client privilege exists so that firms and individuals, within a proper attorney-client relationship, can
feel free to share all of their information and private thoughts and motivations. The public policy behind protecting
the confidentiality of those communications is that firms and individuals should be encouraged to provide all of their relevant
information to their attorneys so that they can receive appropriate and complete legal advice.
When prosecutors give firms incentives to waive the privilege, they create suspicions in the minds of future decision-makers
who may decide not to share information with their attorneys for fear of a future waiver of the privilege. In the long
run the value of having firms receive complete and appropriate legal advice will be undermined.
So, while the Milberg Weiss indictment may provide a brief squeal of glee for some, when examined in the larger context
of civil justice reform, it should serve as a reminder of how much remains to be repaired.
Wednesday, May 17, 2006
Shrinking Violets at the EEOC
7:20 am edt
The EEOC recently cancelled
a day of planned testimony on the issue of diversity in American corporations. What are the afraid of
As practitioners who have dealt with the Commission know, it no longer serves the purpose for which it was intended.
As it was created, the Commission was intended to serve as a pre-litigation opportunity for aggrieved employees and employers
to discuss conflicts and perceived employment discrimination claims. The Commission was charged to dismiss claims that
lacked merit and to authorize for litigation those claims that had merit.
Today, however, the Commission routinely grants "litigation letters" to any employee who asks for one. Rather than
investigate the claim and reach a determination on merit, Commission investigators check a box that says they will be "unable
to make a determination" within some prescribed period of time and therefor make no determination but authorize the employee/plaintiff
to proceed nevertheless.
If the Commission is unable to have a discussion on diversity in which diverging views are aired, how is it ever going
to reform itself into a body that actually makes a difference on workplace discrimination?
Saturday, May 13, 2006
More Lawyer Licensing Coverage
9:08 am edt
Another commenter noted that Ribstein's central premise (that lawyers will have a "property interest" in the law of their
home state, thereby inducing them to become involved in law-making in order to drive more business to their home state) is
The commenter notes, accurately I think, that many lawyers (plaintiffs' lawyers in particular) have an interest in creating
inefficient laws because they will induce more litigation and therefore more legal work.
We saw that principle at work here in Georgia during the 2005 tort reform debate. That bill was worked over in
committee between the House and Senate versions and the outcome was vague in some respects. One suspects that plaintiff-leaning
legislators may have had a litigation-creating outcome in mind.
Friday, May 12, 2006
Data Mining Should Come as No Surprise
1:35 pm edt
Some are professing shock to learn that the NSA has been data mining
telephone records to look for "social networking" links among possible terror suspects. I can't imagine why anyone
would be the least bit surprised.
Congress assembled a commission to examine the 9/11 attacks and to assess our nation's use of intelligence prior to the
attacks to see whether they could have been averted. Among its conclusions was that domestic law enforcement and intelligence
had failed to "connect the dots
" before the attacks.
Democratic Senator Bob Graham, in particular, accused the FBI
of failing to use intelligence and technology to pull together disparate strands of information that, when properly viewed,
should (in his view) have warned us of the impending attack:
"Well, it [9/11] might have been [prevented] if this had been seen in the context of other information, which indicated
that there was a potential conspiracy to use commercial airliners as weapons of mass destruction . . . That could have started
a chain of events, which would have disrupted September 11, but unfortunately because the information was not placed in the
right hands or was distributed to too many places, there wasn't a single point of contact for analysis and reporting of what
was going on.
Later, the 9/11 Commission issued a report
that singled out the NSA for criticism. One of the Democratic members of the Commission, Jamie S. Gorelick, a deputy
attorney general in the Clinton administration, said that the report should be a "wake-up call" for the NSA. Among those
wake-up calls, the 9/11 Commission recommended
that the NSA:
Improve and expand the use of data miniming technologies and analysis tools.
So why, approximately one year later, is anyone surprised that the NSA is using data-mining (a technique routinely used
in commercial contexts to identify prospective customers) to identify potential terrorists. Isn't the NSA doing precisely
what Congress' own 9/11 Commission told it to do?
Thursday, May 11, 2006
Is Lawyer Licensing Necessary? (Part II - Prosecuting the Unauthorized Practice of Law)
8:12 am edt
The Wall Street Journal's Peter Lattman has picked up the debate as well, and is running a survey
on the question of whether lawyer licensing is necessary. (When I checked in this morning it was 52% in favor and 48%
A common theme is the venality of prosecuting the unauthorized practice of law in situations where issue advocates in
worthwhile causes (i.e., advocates for disabled children seeking access to educational resources) achieve laudable outcomes
only to be rewarded with UPL prosection.
I agree with Norm Pattis that Brian Woods (the father who represented his autistic son in the case that sparked Ribstein's
initial post) is "a hero". As one of the commenters on the WSJ blog noted, the interests of father and son in that case
were so closely aligned that there should be no prohibition on one family member's representation of another in such circumstances.
Those narrow exceptions, however, do not disprove the more general rule that lawyer licensing is necessary.
Should Brian Woods' success open the doors for all childrens' advocates to begin selling their legal services to the public?
I might perform emergency CPR on my child if needed, but that doesn't qualify me to offer my medical services services
to the world. I'll also decide what my child eats and drinks in his younger years, but that doesn't make me a nutritionist.
Prosecutions like those initiated by the Cleveland Bar Association
in Brian Woods' case are (at worst) an error in prosecutorial discretion and reflect badly on the legal profession, but they
are not a reason to abandon state licensing of lawyers.
Weaknesses in the current state of legal practice are rationales for strengthening lawyer licensing, not abandoning it.
You Can't Buy Happiness
7:08 am edt
Robert Samuelson does an excellent job of explaining why some "feel" that the economy is getting worse when, in fact, it is getting better. His columns should be required
reading in U.S. high schools:
Advanced societies need economic growth to satisfy the multiplying wants -- public and private -- of their citizens. The
social order depends on it. But the quest for growth unleashes new anxieties and economic conflicts that disturb the social
order. Affluence liberates the individual, promising that everyone can choose a "unique way to self-fulfillment," writes historian
Avner Offer. But the promise is so extravagant that it preordains many disappointments and sometimes inspires choices that
have antisocial consequences, including family breakdown and obesity. Statistical indicators of happiness, Offer notes, have
not risen with incomes.
Should we be surprised? Not really. We've simply reaffirmed an old truth: The pursuit of affluence does not always end
Wednesday, May 10, 2006
7:44 am edt
About Moammar Ghadafi, Ronald Reagan once remarked that not only was the Libyan dictator a barbarian, he was also flaky.
Regarding the publication yesterday of Mahmoud Ahmadinejad's "letter" to President Bush, flaky is being kind.
Among the gems in the Iranian President's recent letter:
"Those with insight can already hear the sounds of the shattering and fall of the ideology and thoughts of the liberal
democratic systems. We increasingly see that people around the world are flocking toward a main focal point--that is the Almighty
God. . . . My question for you [Mr. Bush] is, 'Do you not want to join them?' "
"September 11 was not a simple operation. Could it be planned and executed without coordination with intelligence and security
services--or their extensive infiltration? Of course this is just an educated guess."
"The brave and faithful people of Iran too have many questions and grievances, including . . . [the] transformation
of an Embassy into a headquarters supporting the activities of those opposing the Islamic Republic. . . ."
"One of my students told me that during WW II . . . news about the war was quickly disseminated by the warring
parties. . . . After the war, they claimed six million Jews had been killed. . . . [Let] us
assume these events are true."
Business Cybercrime Survey
7:31 am edt
Rand Corp. has been retained by the Department of Justice and Department of Homeland Security to conduct a survey
of businesses to guage their views, responses and plans on cybercrime and hacking.
The power of the Web is the way in which it makes information ubiquitous. In just a few clicks you can learn just
about anything. But that power (and our incorporation of that power into our homes and businesses) also makes it dangerous.
The more we depend on the Web in our daily lives, the more vulnerable we are to it interruption or to criminal activity that
takes place on the Web.
Monday, May 8, 2006
Clooney's Coalition of the Willing
12:51 pm edt
Mark Steyn skewers
the latest celebrity call-to-action, comparing the coalition's actions in Iraq to the "multilateral" approach taken in Darfur.
The United Nations might be good for something, but it's no good at assembling multilateral coalitions to take action
against rogue regimes.
Is Lawyer Licensing Necessary? A Response to Professor Ribstein
9:50 am edt
In a recent post, Larry Ribstein asks the question "Is Lawyer Licensing Necessary
" after analyzing the case of a non-lawyer father who successfully represented his autistic son in a suit against the Cleveland,
Ohio Board of Education over his son's access to the schools.
Professor Ribstein is someone with whom I almost always agree, so in a way it's refreshing to find a point of contention.
Ribstein's conclusion seems to be that lawyer licensing is no longer necessary because lay persons can often represent
themselves (or close family members) and achieve satisfactory results. Consequently, we can disband state bar associations
and eliminate laws on the unlicensed practice of law and let the free market dispense consumer protection by its invisible
hand. The heart of his argument is here:
As I have discussed here, and in Lawyers’ Property Rights in State Law (published as Lawyers as Lawmakers: A Theory of Lawyer Licensing, 69 Mo. L. Rev. 299 (2004)) there is scant
justification for lawyer licensing laws. My limited defense of licensing is based on encouraging lawyers to participate in
lawmaking. My theory would sharply reduce the scope of licensing requirements.
I am beginning to wonder whether it's worth preserving any piece of lawyers’ monopoly on legal representation.
Cases like the one the NYT discusses make me wonder more. Clearly there was no client-protection justification. Since Mr.
Woods could have acted as his own lawyer, and for his son in finding a lawyer, there's obviously no reason not to let him
decide to dispense with the lawyer rather than paying the huge fee a lawyer would have asked or having to drop the case.
I appreciate Professor Ribstein's law and economics vantage point on lawyer licensing. Free market advocates seldom
love a monopoly, let alone one that is mandated by law. Yet the traditional justification for the special monopoly that
lawyers have is, I think, more than adequate.
But first a preface: There is much to criticize in the current state of lawyer licensing. Most state bars are dominated
by plaintiffs' lawyers and the current focus of many state bars is the enrichment of lawyers, rather than the policing of
the profession. It is far too difficult for consumers to have their concerns heard by the disciplinary boards and discipline
is far too infrequent to serve as an effective deterrent to lawyer misconduct.
My defense of lawyer licensing is not a defense of the status quo with respect to the various bars.
More accurately, though, lawyer licensing is necessary because legal services are precisely the kind of good for which
the market is an inefficient method of regulation.
There are, in reality, at least two markets in which legal services are bought and sold. There is the corporate market,
where purchasers are comprised of significant corporate buyers, often with in-house counsel, and generally with some level
of sophistication. For more matters, corporate buyers can require law firms to engage in a lengthy "beauty contest"
in which the market can play a role. Sophisticated buyers can use this market process to wean out weaker producers and
obtain the best price for their needs.
Corporate buyers of legal services do, in fact, have little need of state licensing. The corporate legal marketplace,
if left to its own devices, would, in the long run, produce an efficient price and tend to wean out poor producers of legal
A second market, however, is the consumer market. Consumers are generally ill-equipped to evaluate their own legal
needs and are generally unable to evaluate the merits of competing producers. Consumers cannot evaluate competing price
proposals (and in many consumer decisions their is no realistic price competition) and consumers are often left to the tender
mercies of their lawyers when it comes to price and service levels.
The occasional human interest story (like the one Ribstein quotes) might give hope to those individuals who wish to represent
themselves or close family members, but it shouldn't inspire laypersons to become unlicensed lawyers. The current state
of lawyer licensing may be flawed, but it is better than the state of affairs that would exist if lawyering was utterly unlicensed.
If the doors to the practice of law were completely unlocked by any licensing requirement, any charlatan with a website
and a business card could hold himself out as qualified. Consumers could be easily bamboozled into trusting their money
(and their legal rights) to smooth-talking salesmen (and women) who know nothing at all about lawyering.
There is much we can and should do to improve the practice of law and the regulation of lawyers. Eliminating lawyer
licensing, however, would be a step backward.
Thursday, May 4, 2006
High Gas Prices, Low Expectations
8:49 am edt
For years Democrats have voted to increase taxes on gasoline, all in the name of environmental protection.
Raises taxes, they said, so Americans consume less gasoline and produce less pollution.
At the same time, Republicans opposed increasing taxes on gas, because high gas prices would drive high prices throughout
the economy, and higher prices would inhibit economic growth.
So along comes the gas crisis of 2006 where global gas supply gets squeezed by the combined problems of post-Katrina
maintenance in the Gulf of Mexico, regulatory costs imposed on producers (MTBE and ethanol), Congressional unwillingness to
allow producers to collect oil from the American homeland (i.e. drilling in ANWR and elsewhere), instability and supply interruptions
in Iraq and threats of nuclear annihilation from Iran. That squeeze prompts a 20-30% spike in prices for consumers at
Do Democrats rejoice at accomplishing their long sought-after goal of moving U.S. retail prices closer to European prices?
No. Democrats like Chuck Schumer, who has voted to increase taxes on gasoline numerous times, now discover the virtue
of low gas prices and blame the price increase not on the misalignment of supply and demand but rather on "oil barons" and
Do Republicans respond by pointing out the Democrats' hypocrisy? Do they educate the public on the reasons why
prices have climbed (and why it would do more harm than good to interfere in the market that created those prices)?
No. In some bizarre transformation, even the most reliable students of market economics have morphed into neo-socialists,
proposing $100 government grants to citizens to ease the pain of price increases.
We don't expect much from our politicians in America, but the total lack of economic understanding found in Washington
on this issue in the past few weeks pushes expectations to ground level.
Gas prices are high because demand is exceeding supply. Corporate greed has nothing to do with it. In the
long run, the market will either:
(a) substitute other fuels for gasoline (when those other fuels become price competitive);
(b) decrease consumption of gasoline (as consumers decide to forgo certain activities -- buying an SUV; having
a longer commute; taking the train instead of driving -- because the cost of the activity exceeds the value consumers derive);
(c) raise the price of gasoline higher (as supply and demand interact in a dynamic equilibrium that produces a market
That's it. No Congressional hearings, bully pulpit demagoguery, fireside chats or quack government tax credits
will produce lower gasoline prices. And the sooner Congress realizes that, and stops fanning the flames of popular resentment
over higher prices, the sooner we'll be able to reach a consensus on possible solutions.
There are many long-term solutions to the problem. We could allow more domestic oil production, eliminate or reduce
regulatory costs on oil producers, stimulate investment in alternative fuels, and so on. But playing the game of trying
to appease popular anger just delays the day on which we try to do something worthwhile.
7:33 am edt
"America, you lost
" proclaimed convicted would-be terrorist Zacarias Mioussaoui as he was lead out of the court room following a jury's decision
that he would not receive a death sentence.
Peggy Noonan caught many of my feelings when she wrote
It is as if we've become sophisticated beyond our intelligence, savvy beyond wisdom. Some might say we are showing a
great and careful generosity, as befits a great nation. But maybe we're just, or also, rolling in our high-mindedness like
a puppy in the grass. Maybe we are losing some crude old grit. Maybe it's not good we lose it.
Wednesday, May 3, 2006
Eliot Spitzer . . . Enforcer?
12:38 pm edt
Kimberly Strassel, writing in today's WSJ
, asks what is the New York AG's true agenda. Is he an enforcer, or a promoter?
Or, to put it another way, if Eliot Ness were alive today, would he be making appearances on The Daily Show?
Tuesday, May 2, 2006
Junk Lawsuits Target ISPs
7:37 am edt
Law.com has a lengthy background piece
on a rash of new suits levelled against ISPs by alleged victims of online predators and the like.
As most Internet attorneys know, ISPs are generally shielded from claims based on "publication torts" like defamation
through the Communications Decency Act
. Numerous courts have upheld the granting of summary judgment to ISPs that have been sued for defamation and similar
claims arising from the speech of their customers.
The latest round of cases, however, involve unusual fact patterns that have opened the door for clever plaintiffs lawyers
to try to circumvent the CDA. In one case, AOL is alleged that have promised a complainant that an unflattering (nude)
picture of her on a member's web page would be removed, but failed to live up to that promise. While the plaintiff concedes
that the CDA would have barred suit for the initial publication of the unflattering picture, the plaintiff claims that AOL's
"promise" to remove the picture created a new duty for AOL that is outside the scope of the CDA.
So far, the trial courts cited in the article have resisted the temptation to create a new duty for ISPs in derogation
of the CDA and frustrated plaintiffs have been left to argue their cases in the media and the courts of appeal. Should
trial courts fail to resist that temptation, however, ISPs could face a torrent of new litigation.
Monday, May 1, 2006
Tort Reform as a Campaign Tool
12:34 pm edt
Sebastian Mallaby preaches to the choir in today's Washington Post
Open societies flourish because they are driven by intelligence and information; the U.S. tort system creates an enclave
of idiotic whimsy in the heart of the most open society in the world. But the Vioxx litigation does not merely celebrate dumb
prejudice. It's extraordinarily expensive. For this year alone, Merck has set aside a legal war chest of $685 million. The
Vioxx lawsuits could eventually cost it between $10 billion and $50 billion.
Did those numbers sink in properly? The midpoint of those estimates -- $30 billion -- is six times more than the federal
government spends annually on cancer research. Or, to put it another way, $30 billion is about five times Merck's annual earnings,
meaning that one of the world's top pharmaceutical research establishments is fighting for survival. At a time when Americans
fret over relative decline in science and business, it's insane to sink a flagship scientific company in order to line the
pockets of unscrupulous lawyers.
The first politician who says this will be called an enemy of injured victims, but he or she will also deserve to be
called bold and right. Perhaps the nation could create a pool of scientific jurors -- retired doctors and such -- to hear
medical cases; perhaps it could penalize lawyers who bring expensive cases that get overturned by higher courts. Whatever
the solution, there's undeniably a problem. The status quo is nuts.
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