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.
Tuesday, June 27, 2006
Tort Reform for Liberals
9:32 am edt Will Childs
, a self-professed liberal, offers some intriguing thoughts
on tort reform from the liberal perspective.
In various trials, I saw general practitioner physicians -- who had never been nearer the FDA than visiting the International
Spy Museum in Washington, D.C. -- permitted to testify about what they believed companies should have submitted to the FDA.
I saw cases go to the jury on the flimsiest of evidence of specific causation, delivered by experts who shouldn’t have survived
even the laxest of Daubert evaluations, all of it contradicting the contemporaneous medical records and factual testimony
of most everyone around. And I saw experts opining contrary to every credible theory relating to general or specific causation,
but still being permitted to testify before the jury. To put it generally, I saw from many (certainly not all) judges an utter
indifference to science. Daubert was a checklist to mutter before ruling, not something to consider carefully.
In short, I saw science being misused and abused. And those are the sorts of cases that still make me twitch -- more
than the more-publicized high-damages cases -- cases where one party or another simply has no credible scientific or medical
basis for their case.
I've always thought that the case for tort reform truly should be a non-partisan issue. I'm glad to see
my friends at the Manhattan Institute agree with me and am delighted to see lawyers from all parts of the political spectrum
discussing alternatives for improving our litigation system.
The Plight of Rebiya Kadeer
8:33 am edt
Your children are stopped by uniformed Chinese policemen and beaten to a pulp before being thrown in jail on the charge
of "plotting to split the state". You hear the encounter over a cell phone until the line goes dead. This is the
plight of Rebiya Kadeer.
Writing in today's Wall Street Journal
, Kadeer chronicles her story of opression and intimidation in China, leading up to her imprisonment there and subsequent
release after the Bush administration brought pressure to bear on the Chinese.
After being warned to stay silent following her release, Kadeer bravely defied the Chinese government and continued to
speak out on the oppression of China's ethnic Turkick Uighurs. In retaliation, the Chinese government has imprisoned
the children she was forced to leave behind in China on trumped-up charges that carry the death penalty.
This might be just another of the many human rights stories that document the immorality of the Chinese government were
it not for another twist: the Uighers are muslim
and America is the leading proponent of their cause in the world.
The Bush administration would do well to continue to press the case for human rights in China (both generally and with
respect to the Uighers specifically) as this is entirely consistent with the President's expressed desire to have a "forward
plan" for Democracy around the world.
In addition, by pressing the case for the muslim Uighers, the administration will have a strong example of American support
for an Islamic ethnic group to hold out to those who claim that American involvement in the middle east is simply a pretext
for anti-Islamic sentiments.
No one with a heart can ignore the pleas of Rebiya Kadeer and her children and the central thesis of President Bush's
proactive policy around the world has been to bring freedom to those who are oppressed. It would speak volumes to those
who view Bush's explanations with skepticism if the President would speak as forcefully on behalf of Rebiya Kadeer as he has
on behalf of the victims of Saddam Hussein.
Monday, June 26, 2006
Are Democracy and Islam Incompatible?
9:22 am edt
Not according to Timothy Furnish, a professor of history at a college here in Atlanta. He writes
As the American occupation of Iraq has entered its fourth frustrating year, some conservative commentators
have joined the Bush Administration’s detractors on the left and given in to despair about ever incubating democracy in a
majority-Muslim country. In this view “our failure to establish liberty and justice for all in Iraq—namely,
freedom of conscience and freedom before the law—is due to the nature of Islamic
culture, not to the efficacy of American efforts”1 [emphasis added]. A related assertion of even longer pedigree is that Israel is the only state in the region with a history
of democratic practices.2 But are these two pessimistic views true?
Tuesday, June 13, 2006
7:56 am edt
Karl Rove will not
Sunday, June 11, 2006
Delaware Supreme Court Upholds Disney
7:45 am edt
The Delaware Supreme Court upheld
the trial court's ruling in the Disney case where plaintiffs challenged
Michael Ovitz severance arrangements as corporate waste.
Iranian Soccer Protest
7:37 am edt
Groups in Germany are expected to hold protests
against the holocaust-denying statements of Iranian President Mahmoud Ahmadinejad today before the start of Iran's opening
World Cup match.
Friday, June 9, 2006
12:33 pm edt
Daniel Henninger gets it right in today's WSJ
The life of Abu Musab al-Zarqawi did not represent the word of God. This is false, a simple, dull lie. Whatever claims
have been made through history in God's name, there is no imaginable sense in which the nations that emerged from World War
II would grant legitimacy to al Qaeda's claims for God's blessing.
But it is a powerful lie. It appears to be the simple lie, we learned this week, that turned 17 Canadian Muslims from
normalcy to planning the mass murder of fellow Canadians. It was the lie beneath the bombings of civilians in Madrid, London,
Bali and the U.N.'s Baghdad headquarters. It was the lie beneath September 11.
It is doublethink: the contradictory belief, and it is a belief, that the murder of civilian innocents is a moral act,
a "holy war." This is the powerful amoral lie that has allowed Zarqawi and al Qaeda to recruit men and women from a world-wide
pool of 1.3 billion Muslims to wrap themselves in dynamite and set off bombs in the cafes and markets of Iraq and Israel.
Or Ottawa. They then call it martyrdom. It is not martyrdom. It is mass murder.
Sunny Side of the Street
12:23 pm edt
For the first time ever, every country on the planet has experienced positive economic growth, year over year, according
to James Glassman
Why? Even in the world's least free nations there is a movement, at least incrementally, towards a free economy.
Hawaii Bill Dead
12:16 pm edt For now
, at least. Walter Olson rounds up coverage here
Thursday, June 8, 2006
Abu Musab al-Zarqawi is Dead
7:29 am edt Killed
in a U.S. air raid in Iraq yesterday.
The U.S. media reaction is jubilant and the only debatable point seems to be whether this is a "major watershed
" (NY Times) or a "great success
" (U.S. Ambassador Zalmay Khalilzad).
Crude oil dropped
at the news, identifying Zarqawi's removal as a significant step towards assuring the flow of oil from Iraq.
Monday, June 5, 2006
Charlie Ross Event
1:12 pm edt Charlie Ross
, the Mississippi state senator who was instrumental in pulling together Mississippi's tort reform bill a few years ago, is
having a fund raising event in Atlanta next Tuesday, June 13th at the Commerce Club.
Charlie is a rising star with a special interest in civil justice reform and anyone with an interest in the subject should
make every effort to hear him speak. You can obtain tickets by contacting Whit Hughes at "whughes at pwhstrategies dot
Fighting Poverty - A 100% Solution
12:57 pm edt Arnold Kling
, a former economist for Freddie Mac and the founder of Homefair.com, has penned a column
in which he proposes to increase the charitable deduction permitted for federal income tax purposes so that 100% of charitable
contribtution (up to a maximum of $20,000 per year) are deducted from the giver's federal income tax obligation.
While I agree with Mr. Kling that he is probably not the first person to have this idea, it is a delightful idea.
And this is precisely the kind of idea that Republicans ought to be championing if they are to avoid a stunning loss of power
in this year's elections.
Six years ago George W. Bush ran as a "compassionate conservative". He touted a number of policies he had tried
as governor of Texas to address education reform, welfare reform and the like.
Six years later, sadly, very little has changed at the federal level. The No Child Left Behind Act has had an impact
on education, but the broad partnership that candidate Bush described between the federal government and private charities
simply has not emerged.
Voters are motivated by a number of conflicting desires. Calculating the outcome of those desires, and the way
that voters will react is both alchemy and science. But one thing that voters approve is an honest attempt by a party
to at least try new ideas to solve old problems.
Poverty has been with us always. The party who can deliver an innovative idea to combat it will be rewarded by
voters for the effort, if nothing else.
Sunday, June 4, 2006
8:15 am edt
I was quoted in the past month in an article in GC South magazine with some concerns over the efficacy of arbitration.
At least one person read the piece, as an executive at the Atlanta office of the American Arbitration Association offered
to discuss with me the merits of arbitration with his institution.
My concern with arbitration is that it is often difficult, as a defendant, to get a court to dismiss a complaint even
when there is a binding arbitration agreement with the plaintiff. If there is any question as to the existence or validity
of the arbitration agreement, a court will hold a mini-trial on that narrow question, complete with a discovery period and
a jury. The cost and distraction of prosecuting that discovery and trial can be almost as onerous as litigating the
case in chief.
And, for all those efforts, if the defendant is "successful" its payment in legal fees and efforts are "rewarded" with
the right to arbitrate the case in chief after the court determines that there was, indeed, a binding arbitration agreement.
The Texas Lawyer
has published a piece that criticizes arbitration from another angle: the finality of arbitration awards. It describes
a case in which an arbitrated in a workers compensation dispute sided with the plaintiff, after grousing to counsel at the
hearing that he had a migraine the night before and had little sleep.
The defendant, unhappy with the outcome, sought to have the arbitration award set aside in court under the theory that
the arbitrator was "incapacitated" when the final day of hearings occurred.
The court sided with the plaintiff who will need seek to recover more than $100,000 in attorneys' fees in defending the
In most states arbitration awards are enforceable and subject to judicial challenge only on the narrowest of grounds,
for example if there was fraud in the award or if the arbitrator colluded with one of the parties. In most states, it
is not grounds to challenge an award if it was merely contrary to the law or contrary to a contract between the parties: the
arbitrator's judgment on the law or the interpretation of a contract is effectively final.
Although the Texas Lawyer article doesn't give me enough facts to know for sure, my hunch is that the defendant had a
beef with the substance of the arbitrator's ruling -- a legal defense they thought was dispositive that the arbitrator denied
-- but took the "incapacitation" argument as a means to complain about the law because "incapacitation" can be a valid reason
to disturb an arbitration award while mere disagreement over the law cannot.
The Texas Lawyer does go on to quote some practitioners who are unhappy with arbitration in general:
While Texas businesses embraced arbitration in the 1980s and early 1990s as a way to avoid costly litigation, some lawyers
who represent employers and corporations now have second thoughts about the process.
Michael P. Maslanka, the managing partner of the Dallas office of Ford & Harrison who defends businesses in employment
litigation, says he advises his clients to be cautious about placing arbitration clauses in their contracts with employees.
"The nimbleness and simplicity of arbitration has been calcified over the years," Maslanka says. "I'm really beginning
to wonder if it's in the best interest of the employers."
With scheduling orders and full-blown discovery becoming a regular part of arbitration, the litigation cost-savings are
marginal at best, he says.
I think most in-house lawyers would agree that arbitration is less expensive that litigation if (a) both parties
agree to arbitrate and the arbitration agreement itself does not become a subject of litigation and (b) both parties respect
the finality of the award and do not judicially attack the award in court.
So how could advocates of arbitration make the process more efficient and less subject to judicial attack?
In a recent 11th Circuit opinion (B.L. Harbert International v. Hercules Steel Co.) the court warned that
parties who attempt to vacate arbitration awards because of sour grapes are liable for sanctions. Judge Ed Carnes
wrote for the panel:
"Courts cannot prevent parties from trying to convert arbitration losses into court victories, but it may be
that we can and should insist that if a party on the short end of an arbitration award attacks that award in court without
any real legal basis for doing so, that party should pay sanctions."
Readers of these pages, of course, will immediately recognize that this is simply another iteration of the loser-pays
principle that we have advocated elsewhere
Friday, June 2, 2006
8:07 am edt
7:16 am edt
proposing to create a new, race-based state that would govern "native Hawaiians" has found its way back to the Senate floor.
Conservative pundit Edwin Feulner takes it apart here
The bill seems not only unconstitutional and contrary to the American way of life but horribly untimely. Hasn't
the history of the last 50 years (100? 150?) been that Americans thrive when they are united with a common purpose and a sense
of mutual respect and cooperation?
And isn't the ancillary lesson of our history that divisive movements and efforts to stratigy Americans by race, class,
creed and other factors generally contrary to the health of our country?
Why then, in an era when we have so many serious problems to solve does anyone want to waste Congress' time with a bill
that would create a fictional, quasi-state composed of a racial sub-set of Americans? What problem would this move purport
This is not a close call and one hopes that Congress makes short work in saying "no" to this utterly pointless proposal.
Thursday, June 1, 2006
Suing Michael Moore
9:33 am edt
A Massachusetts veteran who lost both his arms while fighting in Iraq is suing
filmmaker Michael Moore over Moore's use of a television clip of the veteran in Farenheit 9/11
Sgt. Peter Damon filed suit earlier this week in Massachusetts state court alleging that Moore's use of the clip caused
Damon "loss of reputation, emotional distress, embarrassment, and personal humiliation."
The television clip featured Damon discussing certain painkillers that he had used during his rehabilitation and recovery
from surgery. Damon claims that Moore's use of the clip gives viewers the false impression that Damon opposed the war
in Iraq. To the contrary, Damon claims that he supported the war in Iraq.
so far has made no statement in response to the suit.
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