Jonathan B. Wilson

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Jonathan Wilson is an Atlanta attorney with more than 19 years of experience guiding growing private and public companies.  He currently serves as the outside general counsel of several companies and is the former general counsel of (NASDAQ: WWWW) and EasyLink Services (NASDAQ: ESIC).  He is also the founding chair of the Renewable Energy Committee of the American Bar Association's Public Utility Section.

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Wednesday, August 30, 2006

Stuart Taylor Slams NYT Reporting on Duke Lacrosse Case
Stuart Taylor, writing in Slate, debunks the New York Times' recent re-hashing of the allegations in the Duke Lacrosse / Rape case:
Imagine you are the world's most powerful newspaper and you have invested your credibility in yet another story line that is falling apart, crumbling as inexorably as Jayson Blair's fabrications and the flawed reporting on Saddam Hussein's supposed WMD. What to do?
If you're the New York Times and the story is the alleged gang rape of a black woman by three white Duke lacrosse players—a claim shown by mounting evidence to be almost certainly fraudulent—you tone down your rhetoric while doing your utmost to prop up a case that's been almost wholly driven by prosecutorial and police misconduct.
And by bad journalism. Worse, perhaps, than the other recent Times embarrassments. The Times still seems bent on advancing its race-sex-class ideological agenda, even at the cost of ruining the lives of three young men who it has reason to know are very probably innocent. This at a time when many other true believers in the rape charge, such as feminist law professor Susan Estrich, have at last seen through the prosecution's fog of lies and distortions.
The entire piece is worth reading. 
9:29 am edt 

Tuesday, August 29, 2006

New Internet Industry Reports Available
I have posted the Fall 2005 and Spring 2006 Reports of the Internet Industry Committee (ABA Public Utility Section) on the publications page (scroll down to bottom of page).
The reports include a discussion of the U.N.'s attempt to take control over the Internet through ICANN and a case involving the Communications Decency Act, Associated Bank-Corp v. Earthlink, No. 05-C-0233-S, 2005 WL 2240952 (W.D. Wis. Sept. 13, 2005). 
In Associated Bank-Corp, the plaintiff claimed it was defamed by Earthlink when Earthlink's anti-spam software identified the plaintiff as a source of spam.  The court held that Earthlink was entitled to immunity under the CDA because its "speech" (in the form of listing the plaintiff as a source of spam) was merely a republication of content provided by others and because Earthlink was a service provider for CDA purposes.
8:06 am edt 

Monday, August 28, 2006

Carter "Disappointed" by Blair
President Jimmy Carter, one of the least successful Presidents in modern memory, charted new ground in foreign policy theory today when he criticized British Prime Minister Tony Blair for failing to "constrain" U.S. foreign policy in Iraq. 
The Washington Post reports:
"I have been surprised and extremely disappointed by Tony Blair's behavior," Carter said in an interview with The Sunday Telegraph newspaper.
"I think that more than any other person in the world, the prime minister could have had a moderating influence on Washington _ and he has not," added Carter, who opposed the war in Iraq. "I really thought that Tony Blair ... would be a constraint on President Bush's policy toward Iraq."
It's painful to see a personally moral and honorable man like Jimmy Carter make such a fool of himself and disagrace the office he once held.  Carter has been one of the most successful ex-Presidents, in terms of his charitable works, but when he ventures beyond the water's edge anit-American rants are sure to follow.
Setting aside the fundamental question of whether committing to combat in Iraq was right and whether it was done well, how does a former U.S. President publicly scold the leader of a foreign country for failing to constrain U.S. foreign policy?
If the U.K. had parted ways with the U.S. on Iraq, is Carter suggesting that he would have supported the opponents of the U.S.?  (Given his past love affairs with Yasser Arafat, Fidel Castro and other lovely dictators this seems a likely conclusion). 
Once upon a time retired U.S. Presidents took jobs as university marshalls, sat on corporate boards or took sinecures at think tanks, ruminating on history and their place in it.  They took care, however, to avoid meddling in the current administration in recognition that their time on the stage was over.
Jimmy Carter, however, seems to be making up for his inactivity in office with hyperactivity after the fact, never missing a moment to clutch a reporter's microphone to tell an American President why he's wrong.  Carter's denunciations, ironically, nearly always focus on foreign policy, an area where Carter was notably lacking while he was in office. 
7:41 am edt 

Sunday, August 27, 2006

The new practice, initiated by the RIAA, of using technical means to identify unlicensed media downloaders and then suing them for copyright infringement.  By pricing settlement just so, the RIAA induces settlements that are sufficient to offset its litigation costs but are low enough to dissuade defendants from mounting a defense.
(Tip: Overlawyered) 
8:12 am edt 

Fox Journalists Released
Fox News journalists Steve Centanni and Olaf Wiig were released this morning after spending almost two weeks in captivity.
Both claimed that they had been forced to make anti-Western statements at gunpoint, including professing to convert to Islam, for their captor's video cameras. 
7:51 am edt 

Saturday, August 26, 2006

10th Anniversary of Welfare Reform
From today's WSJ:
Welfare reform turned 10 this week, and more remarkable than its near-total success is the near-total amnesia that seems to have gripped its one-time opponents. The results and the history are both worth revisiting today because they offer some useful political and policy lessons for the future.
When Bill Clinton signed the bill ending a federal entitlement to welfare, a leading liberal newspaper called it "nasty," "atrocious" and "odious"--adding with typical nuance that "the children will suffer the most." Three Clinton Administration officials resigned over the bill. Georgia Congressman John Lewis not too subtly raised the specter of fascism as he literally screamed on the House floor, "They're coming for the children. They're coming for the poor. They're coming for the sick, the elderly and the disabled." Even as sensible a social scientist as Senator Daniel Patrick Moynihan lost his head and called it "something approaching an apocalypse."
The real story has been apocalypse not. Welfare reform has worked so well that its success runs the risk of going almost unnoticed. Welfare rolls are down to about two million today from a peak of five million in 1995. The last time welfare caseloads were this low was 1970, when America had 100 million fewer citizens. But what about the children? The rate of black children living in poverty in America was more than 40% in 1996 and stands at 32% today, according to the U.S. Census Bureau. In the 25 years prior to welfare reform, that number had only briefly ever dipped below 40% and stood as high as 47% in 1980.
8:05 am edt 

Wednesday, August 23, 2006

Fear and Self-Loathing Down Under
From the land down under: An appeals court in Australia is examinining a trial court ruling on the actions of two Christian ministers, Danny Nalliah and Daniel Scot, that found their 2002 speach on Islam violated Australia's Racial and Religious Tolerance Act.
The trial court ordered the ministers to take out a newspaper advertisement, apologizing for their 2002 speach.  In the court of appeals, their lawyers argued that the Act violated the minister's right of free expression and that the trial court's remedy - a forced apology - was beyond the power of the court.
If one needed further evidence of the West's self-loathing, cases like this should carry the day.  In the U.S., the First Amendment prevents the legislature from adopting laws like the one at issue in this Australian case, but what does it say about the state of the West that laws like this exist?
How can we hope to overcome the challenge of radical Islam if the laws of reliable allies, like Australia, muzzle those who would provide a rationale for our resistance? 
(Tip: Overlawyered). 
9:42 am edt 

More Criticism of Judge Taylor's TSP Ruling
It may turn out that the TSP is illegal, technically violating the Foreign Intelligence Surveillance Act of 1978, but we wouldn't know that from Taylor's decision. She cited almost none of the most relevant cases on the matter, and the upshot of her ruling is that even if Congress wanted to codify in law what the president has been doing under his own authority, it couldn't because the founders never had any such thing in mind. "There are no hereditary Kings in America and no powers not created by the Constitution," Taylor wrote, invoking the founders' intent and betraying her own intent to issue as quotable an opinion as possible for the press.
You do see the irony here, don't you? A coalition of pressure groups - Greenpeace, the ACLU and a bunch of left-wing professors - are arguing that the Constitution must be immutably inflexible, adamantine in the face of changing times. The fact that al-Qaida is using new technologies the founders could never have imagined is irrelevant, say the absolutists. If the government can listen in on bin Laden's phone calls without a warrant, what's to keep them from listening to a phone call between me and my Aunt Sally?
Isn't this just a bit hard to take with a straight face from the ACLU, which finds powers not created by the Constitution every day and periodically declares such inanities as the idea that the Constitution forbids teachers from reading "The Chronicles of Narnia" in class lest the tykes' young minds be corrupted by hidden messages about Christianity? Such concerns would have left the founders dumbfounded before the opening prayers of the Constitutional Convention.
Laypeople consuming early news reports may well have thought, “What a courageous judge!” and “It’s a good thing someone finally said that the president is not above the law.” Look at that juicy quotation from Judge Taylor’s ruling: “There are no hereditary kings in America and no powers not created by the Constitution.”
But this is sheer sophistry. The potential for the president to abuse his power has nothing to do with kings and heredity. (How much power do hereditary kings have these days, anyway?) And, indeed, the president is not claiming he has powers outside of the Constitution. He isn’t arguing that he’s above the law. He’s making an aggressive argument about the scope of his power under the law.
It is a serious argument, and judges need to take it seriously. If they do not, we ought to wonder why a court gets to decide what the law is and not the president. After all, the president has a sworn duty to uphold the Constitution; he has his advisers, and they’ve concluded that the program is legal. Why should the judicial view prevail over the president’s?
Judge Taylor's opinion is easily revealed as a partisan act by a Carter-appointed judge who wanted to be the first to come out against the TSP.  But one can only take so much comfort that the motivations of Judge Taylor are so easily revealed. 
Her ruling is taking us down a path that could jeopardize our security unless it is made right.  We should all be keeping our fingers crossed that the Sixth Circuit will do just that. 
9:28 am edt 

Sunday, August 20, 2006

An Ironical Islam?
Philosopher and writer Roger Scruton describes Islam as a religion lacking in irony and the ability to acknowledge the rights of others to believe differently: 
Although Islam is derived from the same root as salaam, it does not mean peace but submission. And although the Koran tells us that there shall be no compulsion in matters of religion, it does not overflow with kindness toward those who refuse to submit to God's will. The best they can hope for is to be protected by a treaty (dhimmah), and the privileges of the dhimmi are purchased by onerous taxation and humiliating rites of subservience. As for apostates, it remains as dangerous today as it was in the time of the prophet publicly to renounce the Muslim faith. Even if you cannot be compelled to adopt the faith, you can certainly be compelled to retain it. And the anger with which public Muslims greet any attempt to challenge, to ridicule or to marginalize their faith is every bit as ferocious as that which animated the murderer of Theo Van Gogh. Ordinary Christians, who suffer a daily diet of ridicule and skepticism, cannot help feeling that Muslims protest too much, and that the wounds, which they ostentatiously display to the world, are largely self-inflicted.

To recognize such facts is not to give up hope for a tolerant Islam. But there is a matter that needs to be clarified. Christians and Jews are heirs to a long tradition of secular government, which began under the Roman Empire and was renewed at the Enlightenment: Human societies should be governed by human laws, and these laws must take precedence over religious edicts. The primary duty of citizens is to obey the state; what they do with their souls is a matter between themselves and God, and all religions must bow down to the sovereign authority if they are to exist within its jurisdiction.

* * *

The Egyptian writer and leader of the Muslim Brotherhood, Sayyid Qutb, went so far as to denounce all secular law as blasphemy. Mortals who make laws for their own government, he argued, usurp a power which is God's alone. And although few Muslim leaders will publicly endorse Qutb's argument, few will publicly condemn it either. What to us is a proof of Qutb's fanaticism and egomania is, for many Muslims, a proof of his piety.

7:57 am edt 

In Praise of Data-Mining
John Yoo argues that we should reinstate the Total Information Awareness program to mine data for clues in identifying terrorists:
Data mining uses supercomputers to analyze vast amounts of information for suspicious patterns of behavior. It appears to have been an important tool in breaking up the plot in Britain. According to news reports, British authorities searched telephone, e-mail and banking records and uncovered connections between the bombers in Britain and their supporters in Pakistan.

American efforts to develop sophisticated data-mining abilities died early in 2003, when criticism killed the Defense Department's Total Information Awareness program. The idea was to develop mining techniques to compare information in government and commercial databases. Civil libertarians engaged in a scare campaign representing the TIA as an unchecked Big Brother. Congress cut off all funding for the program. It was a political defeat early in the war on terrorism, and the president retreated as fast as he could.

But that was a dangerous overreaction. Corporations already use data mining to detect consumer fraud and to market products such as credit cards and magazine subscriptions. Financial companies analyze patterns that might indicate a stolen credit card or bank account number. Why should the government be barred from using similar tools on similar databases to protect the country from attack? Data mining is nothing but an ordinary, ubiquitous feature of technology today.
7:46 am edt 

Why the NSA Decision is Subject to Being Overruled
Reynolds Holding offers some hope that Judge Taylor's opinion won't survive Sixth Circuit review:
Taylor's opinion is remarkably thin on legal reasoning, leaving it vulnerable to getting reversed by the generally conservative Sixth Circuit Court of Appeals. Worse, the opinion's provocative, almost dismissive, language gives weight to criticism that this decision was more about politics than the law.
7:43 am edt 

Speaking Truth to Terrorism
Victor Davis Hanson on the need to see the terrorists for what they really are:
In an amorphous war of self-induced Western restraint, like the present one, truth and moral clarity are as important as military force. This past month, the world of the fascist jihadist and those who tolerate him was once again on display for civilization to fathom. Even the most timid and prone to appeasement in the West are beginning to see that it is becoming a question of “the Islamists or us.”

In this eleventh hour, that is a sort of progress after all.
7:37 am edt 

Friday, August 18, 2006

Killing Ourselves Quietly
I'm still amazed over yesterday's ruling by Judge Anna Diggs Taylor.
Others have written at length over the legal issues in the opinion and there seems to be much hope that it will be overturned on appeal.  (See a series of related posts on Volokh, today's Op-Ed in the WSJ, PowerLine, etc).
And yet I can't help getting angry over decisions like this. 
Judge Taylor, according to the Detroit Free Press, campaigned for Jimmy Carter in 1976 and was "rewarded" with a seat on the bench in 1979.  Like any other federal judge, it is her job to interpret the Constitution and to consider challenges to the constitutionality of governmental action.  It is a weighty job that requires discretion and circumspection. 
But in light of the threats our country faces today, isn't some humility in order?  Shouldn't Judge Taylor at least take a deep breath before risking the security of 300 million Americans because of privacy concerns?
Five years ago a handful of muslim extremists killed more than 3,000 and caused billions of dollars in damages by flying some airliners into some buildings.  The U.S. intelligence agencies were widely criticized for failing to "connect the dots" and anticipate the attack.
Vowing not to repeat that mistake the executive branch of our government redoubled its efforts, spending billions on airport security and billions more on intelligence efforts aimed at preventing "another 9/11."
While some of these efforts came to light last year, the ACLU decided that it was better that our government not use warrantless surveillance to protect us so the ACLU filed suit.  Judge Taylor heard the case. 
And now, but for a stay of her injunction, the U.S. government would be enjoined from continuing its warrantless surveillance program -- aimed at stopping foreign extremists from killing us -- because a handful of left wing lawyers and academics say they felt "chilled" when they learned about the potential for such surveillance.
What gall.  What cheek.  What breathtaking audacity.  What outrageous impudence, that a small group of plaintiffs and a lone federal judge would jeopardize my life and the life of my family and neighbors because of the existential discomfort felt by a handful of privacy activists.
We are at war with a determined enemy who wants to kill us.  There no question concerning that premise. 
Our enemy, with remarkable consistency, has told us that, again and again, in every fatwa, videotape and statement they can publish.  No one can claim that there is any ambiguity about the intentions of enemies.  They are not misunderstood.  They want to kill us and will use any means necessary to accomplish that end. 
And yet a sizeable group in this country -- apparently including Judge Taylor and the ACLU -- thinks that we should have at least one hand tied behind our back when confronting this enemy.  We should let them use our telecommunications network without fear of our eavesdropping.  We should let them use our airline transportation network without fear of being unduly surveilled.  We should let them enter and exit our country without excessive scrutiny based on their country of origin. 
And, when we find them on a foreign battlefield with a machine gun in hand, we may not detain them indefinitely unless we read them their rights and promptly convey them, in a dignified manner, to an air-conditioned U.S. jail for arraignment and a speedy trial with legal counsel paid for with our tax dollars.
This kind of thinking, in the face of a determined enemy bent on killing us, is beyond comprehension. 
It is the thought process of self-doubt and self-loathing: the kind of thinking that asks, "is my enemy right after all".  This kind of thinking is kiling us, quietly and in small doses, but inexorably over time. 
7:44 am edt 

Thursday, August 17, 2006

Federal Judge Enjoins NSA Surveillance Program
U.S. District Judge Anna Diggs Taylor has enjoined the National Security Agency's warrantless surveillance program in American Civil Liberties Union v. National Security Agency.   (Opinion
12:51 pm edt 

Laffey v. Chafee: Who Can Win in November?
Conservative upstart Steve Laffey is challenging liberal Republican incumbent Lincoln Chafee in the Republican primary for Rhode Island's Fall Senate contest.  Laffey would be a more reliable Republican than Chafee, but does he have a chance at winning in a state that went for John Kerry by 59%?
Kimberley Strassel writes:
Laffey supporters are betting that if he wins the primary, the GOP establishment will offer its support. They note that Rhode Islanders are willing to elect more conservative Republicans to statewide office, evidenced by the party's long hold on the governorship. Mostly, they turn to Mr. Laffey's near-miraculous wins in Cranston, where only 14% of voters are Republican. He won by 52% in 2002, and after turning around the near-bankrupt city's finances (which, it should be said, he did by raising taxes)--won with nearly 65% in 2004. He says Republican membership in the city is up 30% since he took over.
It's still a long shot, although at least some Republican strategists are nonplussed. They've long argued the party should write off the Northeast, and focus on consolidating its gains in the South and Midwest. If voters are as angry as seems, it may have no choice.
7:50 am edt 

Tuesday, August 15, 2006

Ahmadinejad and the Media
Bernard Goldberg writes that the Holocaust-denying President of Iran is slicker than his forbears and that does not bode well:
But after watching his "60 Minutes" interview, I came away thinking that Mr. Ahmadinejad understands us a lot better than we understand him. Over the years, dangerous men like him have learned how to play the media game. They have gotten quite sophisticated. I'm afraid we haven't. Unfortunately, "Mike Wallace on line one" doesn't scare anybody in Tehran.
8:20 am edt 

Monday, August 14, 2006

Islamofascism and Jihadism: Is There a Difference?
Local Atlanta history professor Timothy Furnish distinguishes Islamofascism from jihadism in a lengthy post today. 
The heart of his argument is that fascism is characterized by:
1) extreme nationalism and/or racialism; 2) dictatorial (usually charismatic) leadership; 3) socioeconomic regimentation of some kind; 4) forcible oppression of opposition; and 5) the privileging the collective over the individual. Sometimes other characteristics, such as 6) extreme militarization of society and 7) a sense of victimization, are added.
While the Islamic jihadists today at war with the West have a slightly different point of view:
1) a starting point of victim-hood, especially vis-à-vis the West and Christianity; 2) an intermediate goal of re-pietizing Islamic society via imposition of “true” shari`ah (Islamic law); 3) a long-term goal of re-creating the early Islamic ummah (community) under a new caliphate, which would eventually encompass the entire planet; and 4) the preferred methodology to achieve these goals of jihad.
He concludes that today's jihadists are different from the fascists of the 1930s because:
extreme nationalism or ideas of racial superiority, socioeconomic regimentation and extreme militarization—really are not prominent themes in Islamic political thought and praxis, today or in the past. So, definitionally, while “Islamic fascism” at first glance appears appropriate, upon more careful consideration its descriptive value is nominal at best.
He also argues that there is an ongoing problem, especially in the U.S., "to see every new global threat as a reprise of Hitler and Nazi Germany" and that some have suggested that the anti-semiticism of today's jihadists is simply a throw-back to Hitler's hatred of the Jews.  Furnish provides historical context for Islamic anti-semiticism, indicating that hatred, or at least suspicion, of Jews has an historical pedigree in Islam that far pre-dates the Third Reich.
I agree with Professor Furnish on far more topics than those on which we disagree, but I'm not sure I appreciate the significance of distinguishing the species of bile we find in today's jihadists from the genus of poison at issue in Germany in the 1930s.
True, present-day jihadists do not claim to have a racial superiority over the rest of the world and "socioeconomic regimentation and extreme militarization" are not something we've seen from al Quaeda and its fellow travelers . . . at least not so far.
But are these distinctions relevant?  Do they really matter?
Jihadists doe make arguments based on racial superiority because their world view is theological.  One of the traditional defenses of Islam is that it is non-racial; the followers of Muhammad come in all different colors.  But jihadists do have an absolute view of their own theology, that divides the world between believers and non-believers.  As Professor Furnish recounts, Islam's rules distinguish between wrongs done against fellow believers and wrongs done against non-believers.  With that theology as a foundation does it really matter that jihadists make no claim to racial superiority?
Regarding social regimentation and militarization, could it be that these aspects of fascism are absent in the rhetoric of modern jihadists because they do not yet occupy territory or maintain the trappings of a state?  It's hard to order a society when your headquarters are in a cave.  You can't get too far down the road of militarization when your head of state gives orders to runners because he fears that using a cell phone will simply provide a homing beacon to inbound ordinance. 
If ever the jihadists succeeded in occupying territory or developing the basics of a state, I would think it a fair bet that the nascent jihadist state would be highly regimented and highly militaristic.  Current jihadist rhetoric doesn't contain these elements because it has yet had the chance.
I won't dispute the good Professor if he prefers to call our enemy jihadist, rather than Islamofascist.  His historical view of jihadism and the distinctions between its brand of hatred and the brand of Hitler are certainly helpful. 
But on another level I think Islamofascism is a word that still retains some value, if only in the popular media.
Our society is one that is scared to death to talk about its values and to make judgments about values.  Fascism is one of the few value-laden words that the MSM is still willing to utter.  Getting the MSM and more politicians to label our enemy "fascist" would represent a victory for clear-thinking and would signal a step forward in the process of endorsing our own values and understanding why we are at war with a determined enemy.
Labelling our enemy "fascist" communicates to mainstream America: we get it.  We are at war.  We are good because of our values, like freedom and self-determination.  Our enemy is evil because he hates our values.  If he were capable, our enemy would destroy our freedom and self-determination.
It may lack a certain academic purity, but jihadism is fascism (though it may be a distinct variety) and calling it so will strengthen our moral clarity and our resolve. 
11:00 am edt 

Sunday, August 13, 2006

Just Breathe
Gail Heriot's post on PointOfLaw about "breathing room" and the paradigm shift in jurisprudence over the last hundred years from one that privileges action to one that privileges inaction brings to mind several related thoughts. 
Examples from tort law are not the only ones that evidence this shift from what is privileged to what is not.  Corporate law has also moved from one that permitted businesses and managers to innovate to one that punishes innovation.
Consider the conflict between the business judgment rule and the current "compliance" movement.
Traditionally the business judgment rule has provided immunity to managers and directors from shareholder actions based upon corporate actions that failed.  If a corporation's board authorized it to try a particular strategy, and that strategy failed, the board would be free from suit so long as the board acted reasonably and in the best interests of shareholders (and without a conflict of interest).  The board would not be liable, for example, if it authorized an investment into a new widget factory that ultimately proved unprofitable so long as it acted reasonably in considering the idea.
While the business judgment deal is far from dead (as I've argued in connection with the Ovitz case in Delaware) the current "compliance" movement in corporate law poses a real threat.
The compliance movement, which includes Sarbanes-Oxley Section 404 as well as related concepts, posits that corporate managers need to be regulated, controlled and audited in a way that inhibits innovation and creativity so as to avoid any potential for fraud.  The outcome is a corporate governed by checklists and quarterly audits that have the practical effect of ensuring that corporate managers never depart from the company script and penalizing (through paperwork and bureaucracy) those executives who try something new.
The traditional defense of the business judgment rule is that corporate boards and managers need a "zone of movement" in which they can innovate and take risks.  Eliminate that zone of innovation and you're left with an overly risk-averse corporation.  Shareholders don't really want that.  If shareholders wanted an entirely predictable return they could invest in bonds or commercial paper.  Corporate shareholders, the theory goes, want corporations to take risks because risk-taking is a precursor for extraordinary returns.
While the corporate compliance movement can take credit for making corporate fraud nearly impossible at a well-run public company in the U.S., it must also take responsibility for eliminating much of the breathing room required for innovation and risk-taking at public companies.
I think Professor Heriot may be on to something with her "breathing room" analogy.  From torts to corporate law and to other areas as well our society seems to be eliminating many of the breathing rooms that allowed our economy to flourish in the past. 
8:06 am edt 

Saturday, August 12, 2006

Once You Go Omar, You'll Never Go Kuffar
Proving that conservatives can be funny, you've got to read this gem from IowaHawk, satirizing the jihadist poetry of Berkeley leftist-types:
You were born in the Valley to a life in a suburban cage
Encino, where mean girls and cheerleaders
Drop bombs of hate on the unpopular girls
Shy poetry club chicks like you
With 1480 SATs and early admission to Berkeley
Fed by the violence and lookism of the dance squad
Raised in a four bedroom colonial
They wouldn't let you wear your Che T-shirt to prom
But your heart and your armpit hair still grew proud and strong
Read the rest but close the door first, because your raucus laughter will wake the baby early this Saturday morning. 
7:55 am edt 

Wal-Mart Liable for Car-Jacking
If you weren't already convinced that civil liability is proportionate to the defendant's ability to pay, this just in . . . (tip from Overlawyered):
A jury in Clayton County, Georgia, has found Wal-Mart liable for $4.2 M in damages resulting from a car-jacking that took place in a Wal-Mart parking lot. 
Among Wal-Mart's alleged mis-deeds:
  • Having a policy that requires parking lot patrols but not observing the policy at the store involved in this shooting; and
  • Destroying a surveillance tape of the shooting.

The shooter was apprehended within minutes and is now serving a 15-year sentence. 

Lessons learned for corporate defendants: Do not destroy evidence.  Do not have a policy unless you follow it in all instances. 

Would either of these conclusions have prevented the injuries suffered by the victim in the case?  No. 

7:44 am edt 

Friday, August 11, 2006

Tort Reform Key to Global Competitiveness
A summary of the connection between excess legal cost and global economic competition by one of the authors of the U.S. Tort Liability Index: 2006 Report. 
7:53 am edt 

What is the Democratic Party's Solution?
Daniel Henninger in today's WSJ:
Yesterday brought an Islamic plot to blow up people on airliners. The news cycle before that brought Hezbollah's Katyusha rockets into Israel and a war in Lebanon. Before that, Iranian president Mahmoud Ahmadinejad said Iran would give the West its reply to demands to halt nuclear bomb-making on Aug. 22, the anniversary of Muhammad's flight to heaven on a winged horse. Before that, in July, North Korea fired ballistic missiles toward the Sea of Japan (a little-noticed assessment by U.S. and Japanese technicians concluded this week that six of the seven missiles fell within their targets).
And in the past year, Democratic leaders have criticized not just in Iraq but warrantless wiretaps of suspected terrorists, interrogation techniques at Guantanamo, the Swift financial monitoring program, and data-mining phone records. The pull-out-from-Iraq letter was just the culmination.
This is the context in which the post-Lamont Democratic establishment plans to run as an antiwar party. Commencing a phased withdrawal from Iraq, as they suggest, with the mission unfinished, in my view will cause suicide-bomber recruitment to skyrocket in a delirium of victory over the American infidels. And those bombers won't remain inside the imaginary security line around Iraq but will travel to the capitals of Europe, to Israel and to the U.S.
In a better world, the U.S. war on terror, at its core, would be bipartisan. That world was what Joe Lieberman's politics represented. That world is dead. Democratic support for the Republican administration's plans to fight these terrorists is down to about zero. This means the Democrats must have a plan of their own to defeat terror. Every Republican running for office at every level this fall should force his opponent to describe it. And if they aren't certain about the details, they can call Ned Lamont.
7:31 am edt 

Thursday, August 10, 2006

Lamont's Victory Spells Democratic Disaster
Slate's Jacob Weisberg continues the theme I raised earlier
1:46 pm edt 

ABA Opposes 'Misuse' of Presidential Signing Statements
In a voice vote, the American Bar Association's House of Delegates, meeting in Hawaii for the ABA Annual Meeting, approved a resolution (after amendment" that condemns the "misuse" of Presidential signing statements:
“The American Bar Association opposes, as contrary to the rule of law and our constitutional system of separation of powers, the misuse of presidential signing statements … [and] urges Congress to enact legislation requiring the President promptly to submit to Congress an official copy of all signing statements [issued by the President].”
As I've written before, the ABA long ago gave up the pretext that it was a non-partisan professional association of lawyers.  The political arm of the ABA is a left-wing advocacy group, continually making legal arguments in support of a collection of liberal political causes.  The group's position on Presidential signing statements is just the most recent example.
The floor debate in the House of Delegates on the resolution was instructive.  Proponents of the resolution spoke often of President Bush's "flagrant, routine, misuse of that piece of paper, that signing statement, to avoid a veto or the ability of Congress to get the last word or avoid the Judiciary’s ability to declare it unconstitutional."
Does that sound like the rhetoric of a non-partisan?
But beyond the ABA's rhetoric is the partisan nature of its argument.
The heart of the ABA's position is that President Bush has somehow used signing statements as a means to "avoid a veto" or "avoid the Judiciary's ability to declare [a bill] unconstitutional."  But the fact remains that no Presidential signing statement can accomplish either of these goals.
If a bill is passed into law subject to a Presidential statement that a certain provision is unconsitutional, interested parties, in a properly situated case, can apply the law or challenge the law in court.  The President's signing statement has no weight in a court's review of the law.
If a bill becomes law but the President declines to enforce some provision of the law (regardless of whether the President has made a statement about his prior intention not to enforce it) affected parties still have recourse to the courts.
Condemning the "miuse" of signing statements then is a mis-nomer.  Signing statements never get used.  They are simply words spoken by the President, reflecting the President's opinions, nothing more.
Consider the outcome.  Under the ABA's resolution, anyone on the planet may issue any statement they like about the merits, drawbacks or constitutionality of any piece of Congressional legislation . . . except for the President.  As the ABA sees it, the President must stand mute, capable only of signing the bill or using his veto stamp.  The outcome is absurd. 
Like much in ABA politics, this resolution is just more "inside baseball" for bar watchers and will have little impact on politics at the national level.  Few in the electorate are even aware of Presidential signing statements and fewer still are aware of the debate over their use (or misuse).
But once again the ABA's adoption of a partisan political issue degrades its ability to speak clearly on issues that are truly important.  By trading in its credentials to speak on the law for a platform to make political speeches the ABA has further eroded its credibility as a legal authority. 
9:09 am edt 

Term Limits for Judges
Activist John Andrews mades the case for judicial term limits in today's WSJ.  His organization, Limit the Judges, is sponsoring a referrendum in Colorado that would limit judicial terms in that state to 10 years and would subject judges on both the Colorado Court of Appeals and Supreme Court to retention elections on a more frequent basis within their potential 10 year tenure. 
7:33 am edt 

Wednesday, August 9, 2006

Left-wing Goes 1 for 1
Winning a victory over Connecticut moderate Joe Lieberman but losing a reliable voice for the insane with the departure of Cynthia McKinney
True to form, McKinney could not resist blaming her defeat on cross-over Republicans and election "irregularities," posting claims on her "website throughout the day . . . about voting problems such as malfunctioning electronic voting machines, insufficient signposting to a polling location and police harassment of her supporters."
From a vantage point on a distant grassy knoll it seems clear that McKinney's departure should raise the stature of Georgia's Congressional delegation (watch out Alabama, we're coming after you) but deprive it of at least some of its entertainment value.
8:50 am edt 

Monday, August 7, 2006

Peretz on Lieberman
From today's WSJ:
Ned Lamont is Karl Rove's dream come true. If he, and others of his stripe, carry the day, the Democratic party will lose the future, and deservedly.
This echoes a theme I described yesterday
12:50 pm edt 

Clarity in California: At Will Employment Agreements are "At Will"
The California Supreme Court had a moment of clarity last week when it ruled that employment agreements that described themselves as "at will" really did permit the employer to terminate the employee without cause.
11:04 am edt 

Reuters Releases New Mel Gibson Pics
Still smarting from the revelation that one of its photographers doctored photographs allegedly showing Israeli bomb damage in Lebanon, more controversy arose today as Reuters aired previously unreleased photographs of Mel Gibson cavorting in a bar in Malibu on that fateful night.
7:26 am edt 

Sunday, August 6, 2006

Liberman's Loss Would Mean Republican Gain
From all accounts, Connecticut Senator Joe Lieberman's primary face-off with anti-war upstart Ned Lamont will be a nail-biter although Lieberman seems to be lagging in the polls
Lieberman is now polling better among Republicans than Democrats and a number of Republican and conservative pundits have come to his aid.  But would a Lieberman loss signal a downturn in Republican fortunes for 2006 and even 2008?
To the contrary, removing Lieberman's moderating voice from the Democratic Senatorial caucus would increase its already shrill tone and turn up the volume of those would advocate a quick retreat from Afghanistan and the war on terror.
A continuing theme in Democratic party politics is that party's inability to overcome the public's distrust of the party in foreign affairs and defense.  If the Democratic party shifts to the left -- moving in the direction of and the Netroots crowd -- that shift would merely reinforce prevailing stereotypes of "Democrats as appeasers" rather than establish a new point of view.
One of the interesting facets of the growing blogosphere and its role in shaping political attitudes is the tone and vocabulary of political speech on the Web.  Comments on popular leftwing blogs like Huffington Post, for example, often contain over-the-top claims and wildly profane language.  While this kind of language can be endearing to true believers, it has the opposite effect on the undecided and the moderate. 
If Lieberman loses to Lamont we shuld expect to see an emboldened left-wing blogosphere, spouting vitriol into the mid-term elections and into the Presidential primaries.  Republicans, however, should be able to use this to their advantage.
Expect to see challenges to Democratic candidates based upon leftwing blogs.  "Senator Clinton, a writer on a poplular weblog yesterday said that President Bush had prior knowledge of 9/11 but allowed the tragedy to occur so that Halliburton could generate profits on wartime spending.  Will you join me in rebuking that kind of hateful conspiracy-mongering?"
Seeing how moderation lost Lieberman his seat, Democratic candidates will struggle to distance themselves from the loopy left while simultaneously embracing this emerging source of Democratic support. 
The decades-old theme of Democratic inadequacy in foreign affairs and national defense will continue.  If the Democratic base will throw a senior member of their party under the bus for daring to voice feelings of moderation in the war on terror, why should voters trust a Democratic candidate to keep the company safe. 
Lieberman's loss will mean a potential for GOP gain as the gulf between the parties grows and the anti-war and anti-defense sentiments of the Democratic party alienates moderates both within the Democratic party and amongs independents. 
8:05 am edt 

Saturday, August 5, 2006

Recognizing History's Choices
Victor Davis Hanson captures the urgency of our times:
These past few days the inability of millions of Westerners, both here and in Europe, to condemn fascist terrorists who start wars, spread racial hatred, and despise Western democracies is the real story, not the “quarter-ton” Israeli bombs that inadvertently hit civilians in Lebanon who live among rocket launchers that send missiles into Israeli cities and suburbs.

Yes, perhaps Israel should have hit more quickly, harder, and on the ground; yes, it has run an inept public relations campaign; yes, to these criticisms and more. But what is lost sight of is the central moral issue of our times: a humane democracy mired in an asymmetrical war is trying to protect itself against terrorists from the 7th century, while under the scrutiny of a corrupt world that needs oil, is largely anti-Semitic and deathly afraid of Islamic terrorists, and finds psychic enjoyment in seeing successful Western societies under duress.

In short, if we wish to learn what was going on in Europe in 1938, just look around.
1:31 pm edt 

Wal-Mart Employees in China Form Union
Employees at Wal-Mart's second store in China have formed a union.
The cognitive dissonance from this story hurts my head.  Why would employees in a workers' paradise need a union?
7:48 am edt 

Leftists Love Fidel -- From Afar
From today's WSJ
The idea of "Fidel" allows his leftish admirers from the comforts of free, mostly capitalist societies to imagine that someone out there is struggling to build a better, more egalitarian way of life--without any of them having to live amid the daily Cuban reality of grinding poverty and political intimidation.
7:46 am edt 

Christianist Politics?
Kathleen Parker writes:
For those who do not spend their days pulling imaginary bugs out of their eye sockets, "Christianist'' is a relatively new term that roughly refers to a virulent strain of right-wing political Christianity that, supposedly, parallels Islamist lunacy.
7:45 am edt 

Thursday, August 3, 2006

Killing Castroism
Peggy Noonan writes in today's WSJ on the same theme I addressed yesterday:
What to do now?
How about this: Treat it as an opportunity. Use the change of facts to announce a change of course. Declare the old way over. Declare a new U.S.-Cuban relationship, blow open the doors of commerce and human interaction, allow American investment and tourism, mix it up, reach out one by one and person by person to the people of Cuba. "Flood the zone." Flood it with incipient prosperity and the insinuation of democratic values. Let Castroism drown in it.
7:34 am edt 

Wednesday, August 2, 2006

Fidel Castro is Dead: What Next?
The headline, "Fidel Castro is Dead" may come today or it may not come for months or years, but it will come someday.  When it does, what should the U.S. do next?
For years the debate over U.S. foreign policy towards Cuba has been like Brigadoon: the same players make the same arguments over and over again.  Liberal Democrats argue for an end to the economic boycott, conservative Republicans plead human rights and oppose any lifting of sanctions; time passes, repeat. 
The passing of Fidel Castro will not signal an imminent change in Cuba's politics.  His brother, Raul, will in all likelihood take over Fidel's mantel as the premier leader of the country.  With approximately 47 years to cement his hold on power, Fidel has built a solid bureaucracy of support. 
Unlike other dictatorships -- Ceaucescu and Saddam come to mind --  the Cuban police state is supported by a sizeable group of followers who benefit from their support of the regime.  While there is a sizeable opposition in Cuba, the Cuban government has succeeded in keeping the opposition quiet and unable to mount a serious threat to its power.
Fidel's followers are indoctrinated into socialist thinking through a lifetime of political education and a system of rewards that induces allegiance to the regime.  Those few who are brave enough to speak out against Cuban socialism are jailed, tortured, killed or forced to leave the country. 
Consequently, we should not expect a mass Cuban uprising upon the happy news that Fidel has departed this earth.
That does not mean, however, that Fidel's departure does not signal an opportunity for the U.S. to change the stale dynamic that has dominated its relationship to Cuba for nearly half a century.
That dynamic, fueled in large measure by Fidel's outsized personality and his penchant for thumbing his nose at America, ultimately does not serve the interests of the United States or the Cuban people.  It has survived, in large measure, because Fidel used it to buttress his support at home and because many in the U.S. could not overcome their personal aversion to Fidel.  Fidel's antagonism towards the U.S. also bought him plaudits from anti-Americans around the globe, from Hugo Chavez to Moammar Ghaddafi, a veritable Who's Who of the Axis of Evil. 
His removal from the scene may bring about some hope for a gradual change in U.S. policy and the realities of life in Cuba.
One of the most potent forces for modernization and democratization is modernity itself and the bounty of luxuries, comforts and information that a modern market economy brings with it.
China may still be a communist state, with all of the challenges of a one-party government, the suppression of human rights and religious liberty and the squelching of internal dissent.  But the slowly-developing transition of its economy from state control to private ownership is working change on China.  The country is more free now than it was 20 years ago.
Of all the states on the planet, Cuba is among those that has changed the least in the last fifty years.  The primary vehicle (for those who have cars) is a 1959 Chevrolet.  Cuba's economy is state-controlled, with nearly three-quarters of all Cubans working for the state.  Not surprisingly, despite its natural resources and relatively well-educated workforce, the lack of export markets (in large part resulting from the U.S. embargo) keeps Cuba as a net debtor nation, with a fiscal deficit greater than one-third of its GDP. 
The U.S. should have a plan on stand-by for that time when it can suggest to the Cuban people that they stand to benefit from normalizing relations with the U.S.  Fidel's removal from the equation could allow his remaining followers to agree to some political liberalization in exchange for a relaxation of the U.S. embargo.
Opening even slightly the spigot of U.S. trade could drive a significant improvement in Cuba's economy, brining with it the benefits of modernization that rising affluence entails: education, communication, dissent and democratization. 
Normalization would benefit the U.S. as well.  American consumers would benefit from price reductions from some potential Cuban exports.  American investors would benefit from the returns they could generate in a market that has starved for capital for fifty years.  Moreover, an improving Cuban economy (and a liberalizing political system) would mean a dramatic decline in Cuban emigration, saving the U.S. the high cost of defending the coast of Southern Florida and attending to the emergency needs of desparate Cubans fleeing starvation and oppression.
The road to improving relations would be rocky and the destination would not arrive quickly.  But after half a century of stalemate, the days following Fidel's demise may offer the U.S. the best opportunity in our lifetime of changing this tired dynamic for the better.
8:13 am edt 

Tuesday, August 1, 2006

More on Presidential Signing Statements
The Federalist Society has released a white paper on Presidential signing statements authored by a number of FedSoc luminaries, including former Attorney General Ed Meese, law professors Gary Lawson, John S. Baker and Steven G. Calabresi and Washington insider lawyers Charles J. Cooper, Lee A. Casey and David B. Rivkin, Jr.
Among the arguments in the white paper:
  • Signing statements are appropriate because the President has a duty to "take Care that the Laws be faithfully executed."  (A President cannot do that without considering the constitutionality of laws).
  • It is better to have a President comment on the constitutionality of Acts of Congress when they are signed into law, rather than at some later date.
  • Acts of Congress often contain clearly unconstitutional provisions and it is unreasonable to suggest that the President's only options are to sign, or not, an Act that contains constitutionally questionable material. 
8:05 am edt 

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Jonathan B. Wilson is an Atlanta attorney at the law firm of Taylor English Duma LLP.  Jonathan B. Wilson provides legal advice to investors, companies and business executives involving corporate law, securities law, SEC matters, intellectual property, website and Internet legal issues, start-ups, limited liability companies, partnerships, 1934 Act matters, outsourcing, strategic alliance agreements, contracts, and other matters of importance to growing private and publicly-traded companies.