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.
Monday, July 31, 2006
ABA Bashes Bush
1:29 pm edt
As described in an Op/Ed
in today's Wall Street Journal, American Bar Association President Michael Greco is speaking out
on a recent paper written by an ABA panel that objects to President Bush's use of "signing statements".
Signing statements are statements issued by the President at the time the President signs acts of Congress. They
are often self-serving and sometimes contain arguments that the President believes parts of the law may be unconstitutional
and suggest that the President will disregard those parts the President believes are unconstitutional.
The timing of the ABA report is not accidental. As the WSJ reports:
The political agenda of the ABA report is apparent from page one, which quotes from a newspaper report that "President
Bush has quietly claimed the authority to disobey more than 750 laws enacted since he took office." Only in a footnote does
it acknowledge the article is wrong--Mr. Bush hasn't signed anywhere near 750 laws--and that what's at issue are various provisions
of complicated acts of Congress.
This is a trend I've discussed before.
In the past few years the ABA has taken partisan stands on affirmative action
(requiring ABA-accredited law schools to ignore Supreme Court decisions forbidding race-conscious admission standards in
certain situations) and judicial independence
(criticizing Republican activists who criticized judges over certain high-profile cases).
The trend has been developing for decades, reaching a certain momentum in the late 1980s when the ABA abandoned
its long-standing principle of remaining "neutral" on the question of abortion and instead adopting the position that a woman's
right to have an abortion was a civil right.
Since that time, the ABA's membership has declined and the organization (at least in its political branches)
has become increasingly partisan. Many of the more conservative lawyers who might have arrested the leftward momentum
of the group departed after the abortion-neutrality debate or have simply given up on the political efforts of the ABA.
The ABA long ago abandoned its ability to speak for all lawyers. While the group has a sizeable membership,
the vast majority of its members enroll in order to take advantage of discounts on continuing legal education (CLE) courses
and to obtain members-only publications from the ABA's substantive law Sections.
The publications of the ABA's substantive law Sections (like the Business Law Section and the Litigation Section,
for example) are usually quite good. Each Section offers networking opportunities to its members and usually publish
members-only newsletters, magazines and scholarly articles that are helpful to practicing lawyers.
The political arm of the ABA, however - its Board of Governors and House of Delegates
- is another matter. The House of Delegates meets twice a year and each meeting, it seems, is an opportunity for
the ABA to issue press releases decrying global warming, the need for more public spending on indigent defense, and other,
Consider these prominent examples:
That's not to say that these causes are not virtuous. They may be. But that is beside the point. On nearly
every issue of public concern relating to the law the ABA goes out of its way to take a position that reflects a liberal viewpoint.
If the ABA wants to represent the interests of lawyers, it cannot do that if it also chooses to adopt the rhetoric and
concerns of a laundry list of left-wing causes. Lawyers span the spectrum in their preferences and causes. For
the past decade or so, the ABA has done little more than represent the left-hand side of that spectrum.
So when the Wall Street Journal argues that the ABA should be stripped of its special prerogative to comment on the qualifications
of judicial appointees, the ABA should not be surprised. The ABA is not an organization with a monopoly on legal knowledge
and understanding. It is just an advocacy group, among many others, with its own point of view. It just
happens to have a great many members who pay their dues in order to get other benefits, like the AARP members who join for
the travel discounts.
So let the ABA comment on judicial qualifications as much as it wants. It's views are just as valuable as the thousands
of legal bloggers who write about such things, the National Organization of Woman, People for the American Way, and any other
organization you'd care to name.
Sunday, July 30, 2006
Ted Kennedy Wakes Up Cranky
8:46 am edt Ted Kennedy somehow thought it would be helpful for the rest of us if he
wrote a column in the Washington Post telling us how awful Roberts and Alito have been on the Supreme Court ("Roberts
and Alito Misled Us"; July 30, 2006):
Now that the votes are in from their first term, we can see plainly the
agenda that Roberts and Alito sought to conceal from the committee. Our new justices consistently voted to erode civil liberties,
decrease the rights of minorities and limit environmental protections. At the same time, they voted to expand the power of
the president, reduce restrictions on abusive police tactics and approve federal intrusion into issues traditionally governed
by state law.
This might be interesting, except that this is exactly what Kennedy
said they were going to do before they were confirmed. So how can he say that anyone was misled?
In his statement when he voted against Roberts' confirmation, Ted Kennedy said:
Based on the record available, there is clear and convincing evidence
that Judge Roberts’ view of the rule of law would narrow the protection of basic voting rights. The values and perspectives
displayed over and over again in his record cast large doubts on his view of the validity of laws that remove barriers to
equal opportunity for women, minorities, and the disabled. His record raises serious questions about the power of Congress
to pass laws to protect citizens in matters they care about.
It comes as no surprise that Ted Kennedy dislikes the jurisprudence
of Alito and Roberts. His column mentions a number of cases decided this past term that did go Kennedy's way.
As a U.S. Senator, he's entitled to his two cents and the opportunity to tell every else his opinion.
But why is it that every policy disagreement must be an opportunity
for someone to "mislead"?
On the whole, Alito and Roberts have delivered on their track records.
They were both conservative judges who were brought up in conservative administrations. As Supreme Court Justices, they
have tended to write conservative opinions.
Kennedy's argument is that when Alito and Roberts, as nominees,
said they would decide cases fairly and based upon the facts, those statements were somehow untrue or insincere. But
surely his Harvard education should be enough to tell the senior senator from Massachusetts that a conservative outcome is
not inconsistent with deciding cases fairly and based upon the facts.
Alito and Roberts made no effort to hide their conservative judicial
philosophies. Kennedy and other liberal senators on the Judicial Committee pressed the nominees to commit to deliver
particular outcomes and it was in response to these lines of questioning that both nominees pledged to "be fair" and decide
cases "on the facts."
What is at work, in columns like the one Kennedy penned today, is
a dishonest attempt to re-cast philosophical disagreement into dishonesty.
You see, explaining the difference between the conservative libertarian
judicial philsophy of Roberts and Alito from the redistributionist philosphy of Ted Kennedy is hard work. Not everyone
in American has the time or the inclination to look behind the headlines and the sound bites.
So, to come up with an argument that will translate to the masses,
Kennedy and his cohorts simply say, "they misled us". They said they would be fair, but they didn't vote our way, so
they must have lied!
How sad and pathetic. Doesn't the liberal side of the argument
deserve a better defender? If liberals like Kennedy really believe in their own philosophy, why not use their television
time in public confirmation hearings to explain their position and to educate the public?
Another famous politician, writing about honest in politics and
the role of television, said:
But political success on television is not, unfortunately, limited
only to those who deserve it. It is a medium which lends itself to manipulation, exploitation and gimmicks. It can be abused
by demagogs, by appeals to emotion and prejudice and ignorance.
Political campaigns can be actually taken over by the "public relations"
experts, who tell the candidate not only how to use TV but what to say, what to stand for and what "kind of person" to be.
Political shows, like quiz shows, can be fixed-and sometimes are. . . . .
It is in your power to perceive deception, to shut off gimmickry,
to reward honesty, to demand legislation where needed.
That politican was Ted Kennedy's brother John.
Liberals like Ted Kennedy have been frustrated
by their inability to communicate what they believe is the superiority of their positions. As a consequence, they have
often resorted to precisely the kind of political dishonesty that John Kennedy warned against. If they want to regain
political power, they would do better to re-cast their arguments to better explain the merits of their own philosophy, rather
that resorting to the trope that every disagreement with conservatives is an example of a conservative lie.
ATLA Gets a Makeover
8:18 am edt
The American Association of Trial Lawyers renamed itself the American Association for Justice a few weeks ago and the
name change has left a few people unimpressed. (Background
Victor Schwartz, a tort reform advocate who is often at odds with the organization-formerly-known-as-the-ATLA, said
, "If a shark called itself a kitten fish I still would not put my daughter in to play with it."
Walter Olson noted the rhyming potential of "AAJ" and wrote, "Rhymes for "AAJ", incidentally, include "hodge" and "podge",
"stodge", "lordly as the Raj", "wealthy as a Lodge", and "obvious dodge".
The poor dears at ATLA, much better at calculating 30% of a large sum, are just not experienced in the ways of marketing.
No one gets excited about an association of trial lawyers, they thought, but "justice" - hey, who can be against that?
But the clever barristers had better be careful. They should know that states like California and New York have
"consumer protection" statutes that can easily be manipulated into class action lawsuits against organizations that fail to
accurate tout their wares. If AAJ is an inaccurate name for what they're selling, some enterprising plaintiff might
just sue them!
And that got me thinking about what other names might better suit ATLA/AAJ.
There's already a Justice Party
in the U.K., but their interests seem to be insufficiently commercial to interest our friends at ATLA/AAJ.
Alliance for Justice
is allied with the Democratic Party, much like ATLA/AAJ, but their emphasis on opposing Republican judicial nominees might
get in the way of the ATLA/AAJ's other interests.
There is already an Institute for Justice
and they claim to have their own "merry band of litigators." This sounds promising.
Saturday, July 29, 2006
Wasting the Future
4:34 pm edt
Thomas Friedman sums it up best today
There will be no new Middle East — not as long as the New Middle Easterners, like Rafik Hariri, the former Lebanese prime
minister, get gunned down; not as long as Old Middle Easterners, like Nasrallah, use all their wits and resources to start
a new Arab-Israeli war rather than build a new Arab university; and not as long as Arab media and intellectuals refuse to
speak out clearly against those who encourage their youth to embrace martyrdom with religious zeal rather than meld modernity
with Arab culture.
Without that, we are wasting our time, and the Arab world is wasting its future.
Correction: David Carruthers
7:57 am edt
One of the perils of blogging is that you sometimes get your facts wrong. I want to own up to a recent error.
In my piece
on onling gambling, I identified David Carruthers as the CEO of Bodog.com. In fact, Mr. Carruthers was the CEO of BetOnSports.com.
from BetOnSports corporate website). His employment was terminated
following his arrest in the U.S. in late July.
The CEO of Bodog.com is Calvin Ayre
and it seems that he is avoiding the United States for the time being, even going so far as to cancel a planned appearance
at his company's flagship PR event in Las Vegas, in order to avoid the same fate as Mr. Carruthers.
The Other Abramoff Scandal
7:44 am edt
Jack Abramoff's former law firm is deep in talks with various Indian tribes in order to extricate the firm from claims
arising out of Abramoff's dealings. According to Law.com:
Miami-based law firm Greenberg Traurig is not a named defendant in the Alabama-Coushatta tribe's federal racketeering lawsuit
against Greenberg's convicted former Washington lobbyist Jack Abramoff and his cohorts. But that could change in the future.
The tribe, which is deep into settlement talks with Greenberg, has a tolling agreement with the law firm. Such an agreement
stipulates that if a settlement is not reached, the tribe still may sue the firm, regardless of whether the statute of limitations
has passed, according to Frederick R. Petti, a Phoenix lawyer who represents the Alabama-Coushatta tribe.
If Abramoff defrauded clients while working as an attorney for Greenberg, the firm is right to be concerned with
its potential liability. Abramoff will likely be insolvent by the time he has dealt with a handful of his likely creditors
and claimants, but a large firm like Greenberg would represent a "deep pockets" defendants for potential plaintiffs to pursue.
This is yet another example of the fallout from the legalization of gambling and the channelling of gaming licenses through Indian tribes.
Thursday, July 27, 2006
Securities Litigation at All Time Low
7:11 am edt
According to a new study out from Stanford Law School, the first half of 2006 marks the fewest securities class action suits filed since 1996.
Stanford Law Professor Joseph Grundfest notes:
"We’re halfway through 2006, and already we’re witnessing evidence consistent with a slowdown in the volume of federal
class action litigation activity."
"While we lack the data necessary to determine the precise cause of the slowdown, the most intriguing hypothesis is that
extensive and expensive corporate efforts to improve governance and accounting have reduced plaintiffs’ ability to allege
Wednesday, July 26, 2006
Ken Jennings Slams Jeopardy
7:54 am edt
In a blog entry
, the winning-est contestant in Jeopardy
history ($2.5 million) said the show was becoming dated and that Alex Trebek had been replaced by a robot. He suggested
three changes in the show's format:
1. On Price Is Right, Bob Barker ends every show with a plug for his personal favorite cause. “Spay or neuter
your pet!” or whatever. Something like this would humanize Trebek. I propose a new sign-off, along the lines of, “Can our
returning champion do it again on tomorrow’s show? Tune in and find out, everybody. Legalize cannabis. Good night.”
2. You know how Trebek likes to read foreign words in these thick, strained accents, thinking he’s being muy auténtico?
He should continue to do this, but instead of delivering them himself, he needs to have a little ventriloquist’s dummy with
a sombrero to pipe in with those words. (The sombrero can be switched with a beret for French words.)
3. Whenever Alex says “Correct!” to a contestant, he should do the two-index-finger point, like Isaac in the Love
Unfortunately, though, some people
just can't take a joke and Jennings was forced to make an apology
I’ve met Michael Starr a couple times, and he always seemed like a nice enough guy. Which leaves me wondering:
does he know how asinine this non-story is? Despite working for the Post, I’m sure his reading comprehension is just
fine. He knows there’s no way I was genuinely calling for angry bees and ventriloquist’s dummies to be added to the Jeopardy!
format. It’s a humor piece, and one which gets its laughs from the outrageous non sequiturs it proposes, not the ripeness
of its target for criticism. For the record: I’ve loved Jeopardy! since I was a kid, as anyone who talks to me for
about five minutes knows. Making goofy jokes about TV shows isn’t “bashing.” I believe it’s the whole reason Al Gore invented
I'm not sure how much we need to know about Ken Jennings' thoughts on Jeopardy. You'd think he would be
enjoying his winnings on a beach somewhere.
Sixth Circuit Expands FMLA Liability
7:22 am edt
In a case of first impression the Sixth Circuit in Cobb v. Contract Transport has imposed successor liability under
the Family Medical and Leave Act on an employer that won a government contract and then hired employees from the company that
previously held the government contract.
In a decision that would seem to increase an employer's potential
liability under the FMLA, the Sixth Circuit held that the defendant employer was obligated to honor FMLA requests submitted
by employees -- even in their first year of employment and before they had worked 1250 hours for the defendant -- if the employees
would have been eligible for FMLA leave under their previous employer (which had previously held the government contract recently
won by the defendant).
The Sixth Circuit reasoned that, because the government re-bid its
contract every two years, and because employees were often terminated and then re-hired in connection with the change in government
contractor, that the defendant employer should be treated as the successor to the previous employer, even though the defendant
had not acquired the previously employer or any of its physical assets.
Because the decision is closely linked to the unique facts of the
government contract involved, it is unlikely that this decision will extend into other FMLA contests.
Nevertheless it seems a bit of a stretch to impose successor liability
on a company that wins a government contract and then hires some recently-terminated employees. How is the employer
to know which of its new employees would have been eligible for FMLA leave at the previous employer? FMLA eligibility
decisions depend on particularized facts and it is difficult to follow how an employer could possibly have access to those
facts it would need to evaluate FMLA eligibility for its newly-hired employees in the situation described by the Sixth Circuit.
Tuesday, July 25, 2006
Judge Denies Fee Request from "Incompetent" Plaintiff's Counsel
7:44 am edt
Eastern District of New York Judge Edward R. Korman, denied the request of plaintiff's attorney, Steven F. Goldman,
for fees and disbursements in the amount of $428,000 after Goldman secured a $2.4 million settlement for his client in
a medical malpractice action. D.F. v. Mt. Sinai-NYU Medical Center Health Systems
Goldman had resigned from the New York Bar in April 2005, after the settlement was reached, in connection with allegations
involving the use of client funds.
Judge Korman wrote:
"Over the last 21 years, I have overseen a fair number of infant's compromise cases, ranging from trip and fall cases to
those involving serious brain damage with settlements reaching into the millions of dollars . . . . The lawyers in those
cases earned their fees by the settlements they achieved and by post-settlement work that Mr. Goldman failed to provide. I
am not going to allow him to be compensated in the same way as attorneys who do their job."
Judge Korman added that even if an appeals court determined there was no ethical misconduct in calculating the fee,
Goldman should receive no more than $100,000 for his work because of the "grossly incompetent and inexplicable manner in which
[he] conducted himself" after the settlement was reached.
Research on Damages
7:35 am edt
Walter Olson pulls together some recent scholarship on damages here
I am especially interested in the reference to Vanderbilt law professor John C.P. Goldberg's article, "Two Conceptions
of Tort Damages: Fair v. Full Compensation." Olson quotes that piece for the proposition that "the prevailing notion
of tort damages was until the late Nineteenth Century one of "fair" rather than "full" compensation. [Historical materials]
also suggest that the modern tendency to equate tort with the idea of making whole rests on a subtle but critical re-characterization
of the concept of injury, which once predominantly referred to a doing - a wronging of the victim by the tortfeasor - but
now predominantly refers to an outcome - a loss suffered by the victim."
Others have written on the current them of "justice as empathy" where jurors or even legislators act justly by "feeling
the pain" of the victim, etc. This is such a highly subjective standard, however, that it knows no limits.
Is it any wonder, then, that jury verdicts in recent decades have climbed to such breathtaking heights?
Monday, July 24, 2006
Online Gambling: Corruption 24/7
7:49 am edt
of David Carruthers, the CEO of Bodog.com
, has sparked an unusual debate on the merits (and evils) of online gambling. [Correction
: David Carruthers is the CEO of BetOnSports.com.]
An online search for "online gambling" yields more than 93 million hits, giving you an idea of just how widespread the
The classic libertarian approach to the question finds its voice in Steve Chapman's column
in today's RealClearPolitics.com. He writes:
But gambling is now part of the national landscape, and so is the Internet. Individually, we don't fear either one. Why
should a combination of the two be so scary?
It's true that gambling has become part of our landscape. So much so that we often forget that this was not always
In much of the Southwest a drive along any major interstate is likely to take you by dozens of billboards advertising
Indian casinos. And they're not limited to the Southwest either.
Here in the Southeast, during the past ten years, Indian casinos have sprung up in Alabama, Georgia, Mississippi, North
Carolina and Tennessee.
Proponents claim that legalizing gambling takes organized crime out of the picture, legitimizing an otherwise unavoidable
practice and depriving organized crime of a means of obtaining income. That point is debatable, as there are plenty
of examples of organized crime taking root in legalized gambling operations as well, but it misses another point.
The lure of easy money and the corrupting influence of gambling have a way of undermining institutions as well.
What is at the heart of the Jack Abramoff scandal? Easy money. A lobbyist found a way to rake in his chips
quickly by representing Indian tribes trying to obtain federal gaming licenses. Because a federal gaming license is
the closest thing to a license to print money, the tribes were willing to overlook the cost and abandon their common sense,
by funding the fees of their lobbyist. When it because apparent how easily one could make a fortune in this racket,
others jumped in as well.
And do the Indian tribes, who ostensibly hold the licenses to run the casinos, benefit from gambling revenues?
We still spend billions every year in direct and indirect transfers to Indian reservations. In addition, gambling
revenues have arguably made the Indian tribes more dependent on government aid
(in the form of preferential legal treatment) than they would be if they had to develop their economies along more traditional
Not only does legalized gambling corrupt the Indian tribes, but it has created controversies within the tribes, as various
groups struggle for power in an attempt to gain control over an influx of legalized gambling money.
I'm even familiar with one dispute involving an Indian tribe over the control of the tribe's "official" website.
An internecine fight over leadership of the tribe had brought one group to smear the other on the tribe's website. Each
side accused the other of defamation both parties had to expend resources on lawyers, rather than on improving the lot of
Jon Talton, writing in the Arizona Republic, opines
As many as 3 million Americans are considered "pathological gamblers," and many more are problem gamblers. They are more
likely to have been on welfare, been arrested or incarcerated, or to have filed for bankruptcy. Links to substance abuse,
depression and other problems are being studied. A center has been established at Harvard to get a better handle on this phenomenon.
Research in 1999 prepared for the National Gambling Impact Study Commission found that availability of a casino within
50 miles results in double the incidence of pathological and problem gamblers.
There's ample evidence that gambling disproportionately affects on the poor.
For example, the Charlotte Observer recently examined four years of lottery data in South Carolina. People earning less
than $30,000 a year spent an estimated $627 per household on lottery tickets, nearly triple the spending of those making more
The evidence involving pathological gambling has always been hotly debated, but few can dispute that it operates as a
"regressive tax" taking the most from those least able to pay.
Which takes us back to the problem of Internet gambling. As it does with other industries, the Internet doesn't
change the nature of the business; it simply makes it faster and more ubiquitous. Online gambling is economically identical
to offline gambling, except that it's everywhere, all the time, and devilishly fast.
If gambling corrupts the institutions it touches, online gambling will do so as well, only faster.
Sunday, July 23, 2006
NY Times Declares: Stock Options Cause Crime
1:56 pm edt
Warning: P. J. O'Rourke
1:54 pm edt
O'Rourke is a classic for conservatives with a sense of humor. This piece
on warning labels is good for a laugh.
Friday, July 21, 2006
AT&T NSA Class Action Goes Forward
7:11 am edt
U.S. District Judge Vaughn Walker denied AT&T's motion (Opinion
) to dismiss a putative class action alleging that AT&T's compliance with requests for customer information from the National
Wednesday, July 19, 2006
Maryland's Wal-Mart Law Overturned
2:34 pm edt
The U.S. District Court for the District of Maryland has sided with Wal-Mart in its challenge to Maryland's so-called
Fair Share Act. (Opinion
As described in an earlier post
, Wal-Mart and a trade group had filed suit, seeking a declaratory judgment that Maryland's law was pre-empted by ERISA.
The Maryland law would have required Wal-Mart to devote at least 8% of its payroll to health care insurance for its employees.
Although the statute ostensibly applied to any private employer with more than 10,000 employees, as a practical matter, Wal-Mart
was the only company that would have fallen under the statute.
By ruling that the Maryland statute was pre-empted by federal law, the court essentially held that the State of Maryland
was outside its jurisdiction when it tried to assert authority over an employer's obligation to provide health insurance to
California Ct. of Appeals Enforces Proposition 64
10:08 am edt
In a win for litigation reformers in California, the California Court of Appeals in Pfizer v. Superior Court
has interpreted Proposition 64 to require that all the plaintiffs (and not just the lead plaintiff) in a putative class action
under UCL 17200 must satisfy the voter initiative's standing requirements.
Bill Heinze's I/P Updates
7:59 am edt
I've recently come across Bill Heinze's I/P Updates
blog. The blog and weekly newsletter include snippets and copious links to developments in patent and trademark law.
I don't know when Bill sleeps, because this blog is so full of content he must spend every waking hour pulling it together.
A must-read for lawyers who practice in this space.
Monday, July 17, 2006
Israeli Strikes Likely to Increase
11:23 am edt
Israeli newspaper Ha'aretz suggests
that strikes against Hezbullah targets are likely to increase:
The fighting between Israel and the Hezbollah, which is backed by Syria and Iran, has still not reached
its zenith. The Israel Defense Forces' operational plans against the Shi'ite organizations have not yet been carried out.
The next two days are the most critical and a lot depends on whether Tehran decides to take a chance and authorize Hezbollah
to launch long-range missiles with more powerful warheads. This is a capability Hezbollah still retains, despite the heavy
blows it has suffered in the IDF air strikes.
On Sunday, Israel bore witness to the use of more powerful rockets against
Haifa, which killed eight people and injured dozens more. The Syrian-made 220 mm rocket has a warhead weighing more than 50
kilograms. Hezbollah was supplied with these rockets as the Syrian armed forces were receiving them off the production lines.
The decision to give Hezbollah the rockets was made when it was concluded that the group would be considered part of the Syrian
army's overall emergency preparedness.
The risk to Iran is not military, but rather that Hezbollah would suffer such
damage that it would no longer be counted as the sole external element of Iran's Islamic Revolution. It is difficult to assess
what the Iranian leadership will decide. If it does opt for aggravating the situation, it will certainly encourage the Syrians
to become involved in the confrontation, but all indications suggest that Damascus is not eager to get dragged into war.
Homeopathic Legislation: The Fight Over Wisconsin Ginseng
8:59 am edt
are up in arms over what they see as unfair competition.
According to Wisconsin Ginseng growers, root grown in that state is known worldwide as the “purest, highest quality
Panax quinquefolius, better known as American Ginseng, is a white root with medicinal properties known to relieve stress,
increase stamina and increase resistance to common illnesses such as colds. Wisconsin has the ideal climate and mineral-rich
soil conditions for growing the perfect ginseng root. When consumers want the best ginseng, they as for Wisconsin Ginseng;
the world's finest.
And yet, according to Wisconsin
growers, a rising number of ginseng growers in China, Canada and elsewhere are falsely claiming to sell ginseng grown in Wisconsin.
To preserve the value of their place of origin, the Wisconsin growers have adopted
an official seal, identifying product grown in the state.
The Ginseng Board of Wisconsin has registered their seal with the U.S. Patent and Trademark Office as a “certification mark” to signify:
“1. that the ginseng was grown in the state of Wisconsin;
2. the grower of the ginseng is a member of the Ginseng Board of Wisconsin; 3. the grower of the ginseng is a Certified Pesticide
Applicator; 4. the ginseng grower follows chemical application guidelines as published by the Wisconsin Department of Agriculture,
Trade and Consumer Protection and the Environmental Protection Agency; 5. the ginseng grower produces a low pesticide residue
root; and 6. a user of the mark is a member of the applicant's Seal program and has signed a contract agreeing to the foregoing.”
Nevertheless, according to Wisconsin growers, pirates continue to pass-off non-Wisconsin
ginseng as the real thing. In particular, Wisconsin growers are perturbed that
a number of pirates have begun to copy the Wisconsin certification mark and affix it to non-Wisconsin
This has prompted Wisconsin Congressman Senator, David Obey (D), to sponsor a bill (H.R. 1740) requiring the labeling of ginseng with its country of origin.
While we might empathize with the Wisconsin growers (and their customers, who may be defrauded by pirates into purchasing
a product that is not what it purports to be) this is exactly the kind of law we do not need: a labeling requirement that
is, at best, merely redundant with existing law and, at worst, may create inconsistent obligations for businesses.
Persons who affix the Wisconsin certification mark to non-Wisconsin ginseng are already
violating the law and are subject to private suit as well as enforcement by the Federal Trade Commission. Enforcement can include both injunctive relief, actual damages, civil money penalties and treble damages
in the case of willful violations.
Obviously Representative Obey is trying to do a favor to his constituents in Wisconsin and that comes as no surprise,
but why can’t legislators learn that creating redundant laws, in the long run, does their constituents more harm than good?
If the Wisconsin ginseng growers are upset with trademark piracy, they should use
their certification mark in a series of civil enforcement actions to ensure compliance.
They might also use Representative Obey’s good offices to induce the appropriate regulators at the Federal Trade Commission
to enforce the mark and to prohibit the importation of mis-labeled product.
Israel Sends Ground Forces Into Lebanon
7:39 am edt
Sending ground forces into Lebanon
, Israel is expanding the war against Hezbullah in a way that seems intended to inflict the most damage on Hezbullah
Saturday, July 15, 2006
Moral Relativism and Relative Immorality
2:29 pm edt
Ellen Goodman writes today
about a raging debate: whether it is immoral to eat lobsters. Really.
Folks like PETA, People for the Ethical Treatment of Animals, decry lobster consumption
because capturing lobsters is "cruel" and boiling live lobsters causes them to feel pain.
Of course if you're persuaded by that argument, you probably find yourself unable to eat just about any other living
thing, as cows (beef), chicken, pork, and fish are all probably unhappy to find themselves caught, penned, killed and cooked
as part of the human gastronomic process.
Those of the animal-rights persuasion have an incredibly sensitive barometer of morality. As Goodman notes in her
column, some vegans are unimpressed by those who limit their consumption to grains because, after all, most commercial grains
are harvested by machines that "shred field mice." The horror.
But isn't is this more a measure of the incredible luxury of our age that our society can afford to support the hundreds
(thousands?) of persons who take it upon themselves to lecture the rest of us on the relative morality of our table fare?
For the whole of human history, man's struggle has been to survive, by eating, sleeping, procreating and advancing technology
in a way that benefits the expansion of the human race. Until recently, even minor changes in weather, causing
droughts, floods and heatwaves, carried the potential to wipe out a season's crop, leaving many hungry and some dead from
starvation or malnutrition.
For many human beings in this world, indeed, this is still the case. According to the United Nations
, approximately 25,000 people die every year from starvation. That amounts to one child every five seconds.
How then can anyone claim the moral high ground in a debate over the relative morality of foodstuffs? Unless your
idea of morality places the lives of humans and arthropods on the same level, an ethos that requires the rejection of lobsters
(or any other animal for that matter) because of an imagined sensitivity for animal sensibilities is an immoral morality.
To this, the folks at PETA will call me a "speciesist", saying that my human-based morality is akin to racism, as if
the superiority of humans over other species is as morally repugnant as a view that elevates some human groups over others.
But "speciesism" is to racism as as a summer day is to global warming.
Human beings are capable of thinking and talking about morality because they are human. The most gifted ape on
the planet has never spent a moment thinking about morality. (Nor have any lobsters). Morality is for man because
he is man.
This is not to suggest that picking the wings from flies is as moral as as a crawfish boil. Animal cruelty is immoral
because of what it does to humans. A human who is cruel to animals devalues his humanity. Moral humans value life,
both human and non-human, and generally avoid actions that harm life.
But the preference for life is not absolute. Humans are omnivores and omnivores eat, so the occasional crawfish
boil or lobster roll are simply part of the nature's cycle of life and death.
Those humans who cannot appreciate their own role in earth's balance of the eating and the eaten, however, suffer
from a truly human abnormality: the tyranny of the ego.
Putting animal "rights" above human needs doesn't display a higher sense of morality, but it does display the believer's
sense that his morality is higher than those around him.
Is it any wonder that some of the most outspoken advocates of animal rights are Hollywood celebrities, some of the most
narcissistic people on the planet? Only someone who is wealthy enough to make a Pharoah blush can have the audacity
to suggest that those who eat animals are less moral than he is.
Moral vanity does not make for a better morality.
Mankind would be better off with fewer advocates for the rights of animals and more advocates for the health
and happiness of humans.
Taxonomy of Legal Blogs
7:14 am edt
The name of the blog reminds me of the law school adage: In the first year they scare you to death, in the second year
they work you to death and in the third year they bore you to death.
Friday, July 14, 2006
More on Health Courts
11:40 am edt Feedback
from yesterday's hearings on med-mal reform.
Baltimore Would Benefit from Loser-Pays
8:33 am edt
Statistics from the Baltimore City Law Department show that residents and others filed 330 lawsuits against the
city from Jan. 1, 2005, to June 30, for damages totaling $312,095,299.
Fortunately for Baltimore, plaintiffs did not do so well. The city won 218 of the 330 cases.
And as of June 30, the city paid $415,513 — 0.13 percent of the overall requested compensation in the cases — including
the expenses of defending the lawsuits. The city employs 11 full-time attorneys at an average salary of $65,000 and works
with eight others in private practice on a part-time basis to manage the caseload.
For readers of these pages, this is a familiar story. Plaintiffs with nothing to lose get free rein in
the courts to take a "free shot" at a defendant with deep pockets. The defendant then pays for the privilege of having
More interesting, though, is the conclusion that the paper reaches: Baltimore's "frivolous litigation" problem
would be solved if plaintiffs were forced to pay the attorneys' fees of defendants if their cases were not meritorious.
To curtail frivolous lawsuits, plaintiffs who file them in the city and lose ought to pay the legal fees for
That would make potential plaintiffs — and their lawyers — think twice before jumping into court. It would also
help to direct city resources where they are most needed, like our schools.
What's good for the City of Baltimore would be even better for our economy as a whole.
Thursday, July 13, 2006
Congressional Hearings on Health Courts
10:30 am edt
Common Good is a helpful advocate for litigation reform and Philip Howard's books are a useful insight for those who
are new to the subject.
I am skeptical, however, of the concept of specialized courts to consider medical malpractice cases, or other particular
cases for that matter.
First, any alternative litigation setting will inevitably bring satellite litigation on jurisdictional issues.
For example, if Congress creates health courts to hear med-mal cases, will those courts also hear: (a) products liability
cases involving drugs and medical devices; (b) cross-complaints in med-mal cases amongst defendants; (c) indemnity claims
by med-mal defendants against their insurers and other indemnitors; (d) cases where med-mal claims against one defendant partake
of the same core of operative facts as non-med-mal claims against other defendants?
If the purpose of litigation reform is to decrease overall litigation costs, I'm not sure that separate courts will ultimately
be more efficient than the status quo.
Second, creating specialized courts for one industry will do nothing to solve the system-wide problem we have with litigation
in general. If you agree with the central thesis of litigation reform advocates -- that our current system is inefficient
and causes unintended consequences -- the "reform" of separate courts will solve only a fraction of that problem.
Third, if you accept that specialized courts will solve only a fraction of the entire inefficient litigation problem,
you should also face the fact that med-mal litigation is a small percentage of the entire problem. As I discuss in Out of Balance
, med-mal litigation probably accounts for less than 10% of the entire $300 billion price tag the U.S. litigation system brings
home every year.
My hope is that hearings like these will awaken policy-makers to the larger problem of excessive litigation and spark
a debate over the relative merits of the various reforms proposals that have been made.
Wednesday, July 12, 2006
Budget Deficit Insanity
7:44 am edt
President Bush yesterday noted
that federal tax revenues "are rising and we're cutting the federal deficit faster than we expected."
The President's point was that his 2003 tax cuts encouraged enough new investment to spur a surge in economic growth,
thereby inducing tax revenues in excess of those that would have resulted from a higher tax rate. As nearly all of the
analysts have noted, the growth in tax revenues have come from "the wealthy" and "corporations" who pay the vast majority
of U.S. income tax revenues. (One third
of all income tax is paid by only 1 percent of the nation's households.)
The real news, and where the policy credit belongs, is with the 2003 tax cuts. They've succeeded even beyond Art Laffer's
dreams, if that's possible. In the nine quarters preceding that cut on dividend and capital gains rates and in marginal income-tax
rates, economic growth averaged an annual 1.1%. In the 12 quarters--three full years--since the tax cut passed, growth has
averaged a remarkable 4%. Monetary policy has also fueled this expansion, but the tax cuts were perfectly targeted to improve
the incentives to take risks among businesses shell-shocked by the dot-com collapse, 9/11 and Sarbanes-Oxley.
This growth in turn has produced a record flood of tax revenues, just as the most ebullient supply-siders predicted.
In the first nine months of fiscal 2006, tax revenues have climbed by $206 billion, or nearly 13%. As the Congressional Budget
Office recently noted, "That increase represents the second-highest rate of growth for that nine-month period in the past
25 years"--exceeded only by the year before. For all of fiscal 2005, revenues rose by $274 billion, or 15%. We should add
that CBO itself failed to anticipate this revenue boom, as the nearby table shows. Maybe its economists should rethink their
The Journals asks whether we shouldn't continue to "soak the rich" by making the 2003 tax cuts permanent.
Democrats were quick to try to turn the lemonade of this good news back into lemons. Senator Kent Conrad,
for example, claimed
that Bush had sand-bagged the original deficit projections in order to be able to show progress later.
White House spokesman Tony Snow called the Senator's accusations "insane."
Tuesday, July 11, 2006
Maryland's "Pay or Play" Health Care Statute May Be Unconstitutional
7:55 am edt
In January of this year the
legislature, overriding the Governor’s veto, passed one of the most aggressive state statutes in the country with respect
to an employer’s obligation to provide health insurance benefits to its employees. That
statute, the Fair Share Health Care Fund Act (or “Fair Share Act”) goes into effect on January 1, 2007 and obligates any employer
in the State of Maryland with more than 10,000 employees
(a “10K employer”) to devote at least 8 percent of its payroll on healthcare insurance for its employees.
James P. Baker, a partner with the San Francisco office of Jones Day, LLP, has written in a firm memo that the State of Maryland “overstepped its authority” by adopting the Fair Share Act because the law
is pre-empted by ERISA.
“The new Maryland
statute establishes a Fair Share Fund and subjects 10K employers to a health-care payroll assessment that supports the operations
of the Maryland Medicaid program. The amount assessed for the Fair Share Fund is to be the difference between 8 percent
of the 10K employer’s payroll costs (6 percent of payroll for nonprofit entities) and the amount spent on health-care insurance
costs, if the latter amount is lower. The legislative history to the Fair Share Act shows there are three employers
in Maryland with more than 10,000 employees: Giant Food, Wal-Mart, and Johns Hopkins University.
Only Wal-Mart has health insurance costs low enough to be subject to the payroll assessment.
No court has yet ruled on the Maryland Fair
Share Act. Opponents of Maryland’s Fair Share legislation point out that this law directly conflicts with the Employee
Retirement Income Security Act of 1974 (“ERISA”), which provides for a uniform national employee benefit law. “Fair
Share” supporters argue that the law does not place requirements directly on employee benefit plans but instead regulates
employer conduct. Employers can either “pay” into the state fund or “play,” by providing medical plan benefits to their
memo cites an impressive string of cases, showing the federal courts’ evolving analysis of ERISA pre-emption, suggesting that
courts have viewed ERISA as a very broad statute and have given states very little ability to legislate on subjects covered
concerns are more than academic, back in February the Retail Industry Leaders Association filed a complaint U.S. District
Court for the District of Maryland making several constitutional challenges to the Fair Share Act as well as articulating
an ERISA preemption argument.
no special expertise on the ERISA preemption question, but common sense suggests that there ought to be a problem when a state
legislature adopts a law that is effectively intended to place a substantial burden on a single employer (Wal-Mart).
Monday, July 10, 2006
Japan Considers N. Korean Pre-emption
10:21 am edt
Japanese officials are openly discussing
the question of whether a pre-emptive strike on North Korea's nuclear weapons capabilities, or its launch vehicles, would
be permitted under Japan's constitution.
A Loser-Pays Proposal for Securities Litigation
9:29 am edt
Sunday, July 9, 2006
Tax Revenues Rise, Deficit Falls
10:30 am edt
My earlier post on Lawrence Kudlow's article presages a debate that will flare up in the coming week when the administration
announces that tax revenues have soared above their last projections, dramatically reducing the size of the deficit.
have picked up the debate: whether the administration's 2003 tax cuts have truly spurred on economic growth or whether our
current surplus of revenue is an anomaly.
PowerLine quotes an article in the NY Times that argues:
Democrats and many independent budget analysts note that overall revenues have barely climbed back to the levels reached
in 2000, and that the government has spent trillions of dollars from Social Security surpluses just as the first of the nation's
baby boomers are nearing retirement.
But this conclusion is contradicted by this graph, showing the amount by which current tax revenues actually exceed year
Ann Althouse notes
that the Democratic response is unworldly:
"The long-term prognosis is still very, very bleak, and the administration doesn't have any kind of long-term plan."
How are soaring tax revenues and a falling deficit "very, very bleak?" How is a philosophy of economic growth through
decreased taxation not a "long-term plan?"
Democrats may not like it, but the future is not bleak and Republicans do have a plan.
"Honesty" is Such a Lonely Word
8:04 am edt
Posner cuts right to the heart of the matter, noting initially that the issue in any employment discrimination
case is not whether the employer's decision was correct, but whether its basis was the "true reason" for the employer's decision.
In other words, as long as the employer honestly believes the reason it gives for making the termination decision, it doesn't
matter whether the employer was "mistaken, cruel, unethical, out of his head, or downright irrational." What
matters is whether the employer believed the reason it gave for the termination. . . . .
The point in this decision for employers and their counsel is to once again demonstrate the importance
of communicating the real reasons for an employer's actions, from the initial decision point forward. Some employers
do not want to tell an employee that she is being fired for incompetence, or misconduct, or some other unpleasant reason.
But giving an employee a reason for her termination that is not accurate, or even worse, putting an inaccurate justification
in a formal position statement to the EEOC or a court document, is an almost guaranteed way to end up in litigation down the
road. An employer that gives inconsistent stories about why it took certain actions is an employer that will be viewed
by a court and a jury as having something to hide. And that something is invariably presumed to be a discriminatory
animus once the case gets to trial.
Measuring Our Prosperity
7:45 am edt
- In less than three years, the U.S. economic pie has expanded by $2.2 trillion, an output add-on that is roughly
the same size as the total Chinese economy, and much larger than the total economic size of nations like India, Mexico,
Ireland, and Belgium.
- Since the 2003 tax cuts, tax-revenue collections from the expanding economy have been surging at double-digit rates while
the deficit is constantly being revised downward.
- While the overall economy has grown by one-fifth since mid-2003, private business investment has expanded by 37 percent.
- The household survey of job creation has been booming at a much faster clip than headline corporate payrolls. This months's
household survey shows 387,000 new jobs in June, following 288,000 in May.
- the unemployment rate stands at a historically low 4.6 percent rate.
Someone needs to alert the media.
Saturday, July 8, 2006
O'Connor: Litigation Reform Requires Legislative Solution
8:35 am edt
In an interview
on a local PBS station, former Supreme Court Justice Sandra Day O'Connor said that the solution to "frivolous lawsuits" requires
statutory change by the legislature, not the judiciary.
Friday, July 7, 2006
NY Supremes Affirm Marriage Law
8:04 am edt
In a decision announced yesterday (Hernandez v. Robles
), the New York Supreme Court upheld the state's marriage law, which defines marriage as a relationship between persons of
opposite sex, and declined the argument advanced by various advocates that the law was unconstitutionally discriminatory.
The popular press and the political groups who have a stake in the gay marriage debate quickly characterized the decision,
based upon their perspectives, as either a confirmation of support for the traditional definition of marriage and the legislature's
prerogative to define it (NY Governor George Pataki
) or a "disappointing" result that relies on "outdated and bigoted notions about families" (Democratic Chairman Howard Dean
The best legal analysis of the case I have found, however, comes from University of Minnesota law professor, Dale Carpenter
, writing at Volokh
. . . the issue is largely decided, doctrinally, at this initial stage of characterizing the right. The rest of the analysis
is usually straightforward, though there have been exceptions (e.g., where a law meets strict scrutiny or fails rational basis
review). To its credit, the New York court recognized the tensions in the precedents on this issue, with courts sometimes
choosing broad characterizations and sometimes narrow ones. The U.S. Supreme Court has never given us a methodology for choosing
the level of generality, which has led to the strong suspicion that the cases in this area are result-driven.
Which path to follow in a gay-marriage case, that of Glucksberg and its narrow conception of the claimed right,
or that of Lawrence and its broad conception of the claimed right? The question is not a hypothetical one; it will
confront every court at the state and federal level that deals with a gay-marriage claim grounded in due process. The New
York court offers this methodology for making the choice: "The difference between Lawrence and Glucksberg,”
reasoned the court, “is that in Glucksberg the relatively narrow definition of the right at issue was based on rational
line-drawing. In Lawrence, by contrast, the court found the distinction between homosexual sodomy and intimate relations
generally to be essentially arbitrary.” (p. 12) Thus, the New York court chooses the Glucksberg model and rejects the
Lawrence model. (Yet another indication, if we needed more, that Lawrence is not leading courts quickly to gay
The New York court’s approach is a novel, but I think unsatisfactory, way to resolve the level-of-generality dilemma
in due process cases. It resolves the problem only by deciding the result.
Carpenter ultimately concludes that the New York court "reached the right result on the due proces claim for
rather unconvincing reasons."
Carpenter's conclusion points to a recurring problem I've noted on these pages before (as have many others):
courts that reach legal conclusions on the basis of a results-driven analysis have difficulty justifying their conclusions,
both to fellow lawyers and to the public as a whole. Courts must have a law-driven process to their conclusions if they
are to carry weight, both as legal precedent and in the "court" of public opinion.
What hampers all of the decisions we see in current debates over due process (whether it applies to statutory
limits on marriage or other legal disputes involving due process) is that the current stage of the legal analysis distinguishes
between those fundamental rights, the restriction of which require "strict scrutiny" and those other (less fundamental?)
rights, the restriction of which is permitted when justified by a "rational basis".
Carpenter's argument, which I find persuasive, is that this distinction itself presumes the conclusion that the
right at issue is either fundamental or not. Determining the "fundamentality" of the right will almost always determine
the conclusion. Thus far, courts have struggled, with little success, to develop a persuasive distinction between those
rights that are fundamental (and merit strict scrutiny) with less fundamental rights (that may be restricted with a rational
This area of the law is far outside my own expertise, so specialists in this area may fairly claim that I am
dramatically simplifying the analysis, but I think the simplification is helpful to make the point that many of our current
debates involving fundamental rights (the right to marry, abortion, etc.) stem from the confusion driven by the judiciary's
results-driven analysis of the problem.
In other words, if the legal issue concerns the legislature's constitutional power to regulate a practice (whether
marriage or abortion) that certain persons believe is a matter of fundamental right, any court's decision will be unpersuasive
to many if it begins its analysis with an arbitrary distinction over whether the claim touches upon a fundamental or a non-fundamental
right. After all, the litigants would not have brought the claim had they not cared enough to believe that their claim
involved something fundamental.
I would not presume to offer a solution to this conundrum except to suggest that the solution should derive from
that basis of common understanding on which the vast majority of Americans would agree. One need not resort to a strict
constructionist view of the Constitution to demonstrate that much of which passess for constitutional law in the U.S. derives
from a common understanding of the people as to what is fair, right, appropriate and commonly-accepted.
That historical understanding admittedly has its drawbacks. Practices that are commonly accepted at one
time (segregation for racial groups, for example) may later be commonly repudiated and the legal processes required to
reflect that change in common understanding can take decades. In the interim, injustice continues.
But the law was not designed to be swift. It was designed to bring certitude to decision-making so that
legislatures and private actors could know which actions were permitted and which were not. Taking an historical view
of the Constitution supports this kind of certitude.
Among the many problems of our current constitutional disputes is that our judiciary has for too long strayed
from an historical reading of rights and responsibilities and has instead tried to fast-forward the legal process by assuming
a result and back-tracking to an answer.
Our legal process, and the credibility of the courts that administer that process, will suffer for so long as
the courts ignore the historical basis of our Constitution.
Wednesday, July 5, 2006
Kenneth Lay is Dead
10:23 am edt Reports
indicate he died of a heart attack this morning.
Tort Reform in Illinois, Florida and Texas
8:44 am edt
Also, within the past week, groups in Florida
have released their own white papers on the need for litigation reform in those states.
The Florida and Texas reports are a study in contrasts.
The Florida paper is rather loosely organized, citing the usual litany of problems and then appending a laundry
list of proposed solutions with little analysis as to how those solutions relate to the identified problems. Some of
the proposed solutions, such as "abolishing" punitive damages are a bit far afield. (The Florida paper does not
even mention loser-pays or offer of judgment reforms).
The Texas paper, on the other hand, describes the success that the organization has had in reforming litigation law in
Texas, mentioning the Texas offer of judgment rule. It clearly and simply describes how groups in other states can organize
and raise funds to manage a multi-year process of driving the legislature towards litigation reform.
Monday, July 3, 2006
SCO Suit Dealt Setback
8:46 am edt
While SCO still has some claims remaining that may survive to trial, much of the wind is out of its sails. The
ruling should give solace to the millions of Linux users who feared that an SCO victory might restrict the further development
of the Linux operating system.
A J. Harvie Wilkinson Two-Fer
8:37 am edt
On the same day runs a column by George Will, praising
Judge Wilkinson's article in the Stanford Law Review, on the importance of drawing clear judicial lines when deciding cases.
Wilkinson wrote to criticize some of the decisions of the late Rehnquist court for their failure to create sufficient
clear decisions between constitutional principles and mere "difference-splitting". He wrote
"[M]ethodology matters supremely in the law, if it is not to become the kissing cousin of politics. . . . There is a
thin line between the unabashedly pragmatic exercise of splitting differences and the practice of politics itself,'' [so]
"splitting the difference ought not to be confused with judicial restraint.''
On the same day that Will's column ran, the Judge also penned an Op-Ed
in the Richmond Times-Dispatch on some of the forgotten virtues of Thomas Jefferson (a topic of frequent resort back in the
Two simultaneous columns is an odd coincidence, but I cannot ascribe it to any particular conspiracy or trend.
On the other hand, if I learn that the Judge is booked on Larry King
tonight I will begin to worry.
Phone: 404-353-4833 | firstname.lastname@example.org
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