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, March 30, 2005

Securities Claims Against J.P. Morgan Dismissed
Judge Sidney Stein (S.D.N.Y.) dismissed the putative class claims against J.P. Morgan in In Re JP Morgan Securities Litigation, 02 Civ. 1282.
The plaintiffs' claims arose out of J.P. Morgan's involvement in financial transactions involving Enron.  After Enron collapsed and J.P. Morgan's role in procuring financing was reported, shares in J.P. Morgan fell.  Plaintiffs claimed that J.P. Morgan fraudulently failed to disclose its role in the Enron's financing.
Under the 1995 Private Securities Litigation Reform Act, a plaintiff must prove that the defendant had a specific intent to falsify its financial reports.  It is not sufficient for a plaintiff to make general allegations.
Judge Stein dismissed the plaintiffs' claims in J.P. Morgan because the plaintiffs had no evidence of the defendants' intent.  Without evidence of specific intent, or at least facts "that constitute strong circumstantial evidence of conscious behavior or recklessness," plaintiffs cannot proceed with securities fraud claims.  
7:48 am est 

Bipartisan Support for Litigation Reform
According to an Op/Ed piece in the Washington Times, support for litigation reform (although strongest among Republicans) is actually bipartisan. 
The piece sites a recent opinion poll in which respondents were asked generically whether the legal system needed reform.  Republicans said yes at a rate of 86%, but Democrats also responded in the affirmative 67% of the time.
If true, these numbers make it hard to understand why Democratic leaders in Congress opposed the Class Action Fairness Act and other proposed litigation reforms.
7:14 am est 

Tuesday, March 29, 2005

Reform in Illinois
The State of Illinois, home to the infamous Madison and St. Clair Counties, has a medical malpractice reform bill pending in its State Senate.
Unfortunately, local media reports suggest that State Democrats are delaying action on the bill. 
Illinois Senate Bill 150 proposes changes in medical malpractice insurance regulation, limits liability for hospitals for the errors of non-employees, limits liability for good samaritans and creates a pilot program called "Sorry Works!" in which doctors and hospitals may apologize for medical errors and offer an early settlement without having that offer constituting an admission of error. 
7:18 am est 

Monday, March 28, 2005

Herman Cain on the Ownership Society
Sunday's Atlanta Constitution featured a debate on the "ownership society" between Herman Cain, a former republican Senatorial Candidate and a representative of a liberal thinktank.  Unfortunately (though not surprisingly) the online version of the AJC does not include the columns (and that's why I can't remember the liberal's name).
Cain's arguments were adequate, though not terribly inventive.  He describe social security reform and tax reform as improvements that would make these governmental programs more fair and more effective.
The counter-point claimed that we already have an "ownership society" and that this was a bad thing because ownership itself was bad.  The rich were getting richer and the poor were getting poorer, etc.
Both views left me unsatisfied.  The liberal writer has a point: we already do have an ownership society.  Except for a handful of other nations, the United States leads the world in the individual ownership of capital.  More than 50% of Americans own stock and approximately two-thirds own their own homes
This level of personal capitalism, however, is a source of prosperity, not a source of poverty.  Does it allow for the possibility that some will become very wealth?  Of course.  But that is not the point.  The disparity in wealth from the top of the curve to the bottom harms no one.  It is the wealth at the bottom of the curve that is important.
In extremely poor countries (sub-Saharan Africa, for example), the most wealthy persons are generally not much better off than an average American.  The least wealthy persons live in squalor, without adequate food, water or shelter.  This is real poverty, and the relative equality of poverty throughout the country does no good to anyone.
In the U.S., while there remain isolated examples of extreme poverty, there is also a substantial group of poor who adequately provide their own needs and also afford some luxury items (air conditioning, cable TV and the like).  The discrepancy between these poorest persons and the wealthiest in the country is meaningless. 
What makes the "ownership society" a liberating vision is that it offers hope to the poor - and to the middle class as well - of the accumulation of wealth through individual effort.  Continuous labor to maintain subsistence saps the soul and ennervates the will.  Labor to produce wealth, carrying the potential to improve the laborer's life, provide creature comforts and create a legacy for the laborer's children is a liberating vision.
Those who support the transformation of our society through ownership, should focus on this vision of liberation, rather than on the idea of incremental improvements. 
7:22 am est 

Friday, March 25, 2005

Washington Post Skewers Reid on Social Security
The Washington Post (of all outlets) accuses Reid of "dishonestly" debating the merits of Social Security reform:
"ONE CAN DEBATE the merits of creating personal accounts in Social Security but not the case for fixing the program's solvency problems. Over the next 75 years, as the Social Security trustees reported on Wednesday, the program has a projected deficit of $4 trillion; the longer the nation waits to address this problem, the nastier the tax hikes or benefit reductions that will result. But that's not the impression conveyed by some Democratic leaders. The trustees' report, according to Senate Minority Leader Harry M. Reid (D-Nev.), "confirms that the so-called Social Security crisis exists in only one place: the minds of Republicans." The senator's desire to score political points is understandable. His willingness to do so by implying that Social Security is healthy is not. "
Hearing such criticism from the "mainstream" Washington press is not an everyday occurrence and may signal a shift in the debate. 
10:25 am est 

Thursday, March 24, 2005

Venue Provision of Georgia's Reform Law Challenged as Unconstitutional

According to the March 23, 2005 edition of the Fulton County Daily Report, Georgia State Court Judge J. Antonio DelCampo, sitting in DeKalb County, has ruled the venue provisions of Georgia's recent tort reform law (S.B. 3) unconstitutional.

The venue provisions of the new law allow a non-resident defendant in a medical malpractice case to transfer the case to the county where the defendant resides if that was the county where the claim occurred. Prior law had allowed the plaintiff to determine the venue of the case if there were multiple defendants residing in more than one county.

In determining venue in a civil case involving joint tortfeasors, Article VI, Section II, Paragraph iv of the Constitution of the State of Georgia  provides:

Suits against joint obligors, joint tort-feasors, joint promisors, copartners, or joint trespassers residing in different counties may be tried in either county.

Past cases have interpreted "either county" to mean in any county in which any of the joint tortfeasors resides.

Reform advocates had claimed that plaintiffs had wrongfully joined defendants to medical malpractice cases in order to get venue in plaintiff-friendly counties.

Defendants in the current case, seeking to uphold the venue provisions of S.B. 3 will have a difficult argument to make. In 1979 in Glover v. Donaldson, 243 Ga. 479, the Georgia Supreme Court invalidated another piece of legislation that stipulated that MARTA (the Atlanta regional rail authority) could only be sued in Fulton County (the county in which the City of Atlanta sits). In the Glover case, MARTA was sued as a joint tortfeasor in DeKalb County and the Georgia Supreme Court held that the Constitutional venue provisions for joint tortfeasors allowed the plaintiff to maintain venue in DeKalb County because the legislative provision for exclusive venue in Fulton County could not override the Constitutional provision to the contrary.

7:36 am est 

Wednesday, March 23, 2005

Reform Coming to Florida
Hot on the heels of a litigation reform bill's passage in South Carolina, Florida is shaping up to be the next battleground state. 
Governor Jeb Bush has supported a number of reform measures and Tom Lee, the President of the Florida Senate, has also publicly advocated reform
Senator Lee was quoted to say, "Since I have been in the Legislature, the Judiciary Committee in the Florida Senate has been a graveyard for litigation reform and a variety of other reform. We want to have an open and fair hearing of these issues in the Florida Senate."
The effort is supported by the Florida Civil Justice Reform Institute, an arm of the Florida Chamber of Commerce, and the American Justice Partnership
7:54 am est 

Tuesday, March 22, 2005

AMA Study on Tort Reform Effects on Malpractice Insurance
A new study released by the American Medical Association provides further substantiation to the claim that tort reform may result in lower malpractice premiums. 
The study follows developments in Texas, West Virginia and Ohio (all of which adopted reforms in 2003) and tracks declines in malpractice insurance rates in Texas, and lowered rates of increase in West Virginia and Ohio.
The link between tort reform and declines in insurance rates is a key argument in linking tort reform to the availability of health care.  Proponents of reform had claimed that one of the rationales for reform was that rising malpractice insurance was forcing physicians out of practice or out of state. 
2:06 pm est 

South Carolina Governor Signs Tort Reform Bill
After several months of legislative wrangling, South Carolina's governor has signed a tort reform bill that includes abolition of joint and several liability, limits venue-shopping and adopts a Rule 11-like prohibition on attorneys filing frivolous suits.  
2:00 pm est 

Monday, March 21, 2005

Congress Passes Law for Terry Schiavo
The House overwhelmingly passed a resolution that would give federal courts jurisdiction over the Terry Schiavo case. 
Much has been written on this case -- perhaps too much -- but there's no obvious answer. 
The husband says that his wife expressed a desire not to be kept alive by heroic means.  Perhaps she did.  And if she did, he is certainly not only right but duty-bound to attend to her wishes.  Certainly the past ten years have been more than enough time for her husband and her family to work through their issues and arrive at a consensus on what is best for Terry Schiavo.
The parents and siblings of Terry, however, accuse the husband of assorted failings and insist that Terry's brain-damaged state is one of being alive.  The pictures we've seen, showing Terry looking around and smiling, sure look like a living person. 
While much of this story will probably continue to play out in the courts and perhaps the legislature, these kinds of decisions are precisely those that are the least appropriate to be decided in courts and legislatures. 
7:12 am est 

The McCain-Feingold Snooker
John Fund expands coverage of the scandal behind how the Pew Charitable Trusts fooled Congress, the President and even the courts into thinking their was popular support for campagin finance reform.
According to recent reports, nearly all of the $120+ million that financed the campaign finance reform efforts came from a handful of liberal trusts, including Earth Action Network and the People for the American Way. 
Why is it that the groups with the most money to burn need to be concerned with how politicians raise funds to run campaigns?
7:01 am est 

Sunday, March 20, 2005

Bye-bye Syria?
Will Syria collapse?  What would take its place?
7:18 am est 

Good News From Iraq
In the past four months insurgent attacks have decreased in number and effectiveness.  The New York Times reports:
The top Marine officer in Iraq said Friday that the number of attacks against American troops in Sunni-dominated western Iraq and death tolls had dropped sharply over the last four months, a development that he called evidence that the insurgency was weakening in one of the most violent areas of the country.

The officer, Lt. Gen. John F. Sattler, head of the First Marine Expeditionary Force, said that insurgents were averaging about 10 attacks a day, and that fewer than two of those attacks killed or wounded American forces or damaged equipment. That compared with 25 attacks a day, five of them with casualties or damage, in the weeks leading up to the pivotal battle of Falluja in November, he said...

...He said that several hundred hard-core jihadists and former members of Saddam Hussein's government and security services were still operating in Anbar Province, but that the declining frequency of the attacks indicated that the rebels' influence was waning.

"They're way down on their attempts, and even more on their effectiveness," General Sattler said.

7:15 am est 

Saturday, March 19, 2005

France and the Law of Blasphemy (Oh My!)
A court in France prohibits a blue jeans manufacturer from using a parody of Davinci's Last Supper in its advertisements in response to a lawsuit from a group of bishops who claim that the ad offends French anti-blasphemy laws.
Should the U.S. follow suit?  James Lileks says "no". 
France is a funny place.  Invading Iraq to depose a bloddy dictator is wrong.  Muslim girls can't wear headscarves to school, because that promotes religion.  But making fun of a thousand year-old painting is wrong because it might offend the religious.
Can't you folks all just get along?
9:51 am est 

Friday, March 18, 2005

An End to Judicial Activism
Consider Thomas Lifson's thoughtful piece on the end of judicial activism.  He believes activism may soon recede because:
  • The American public is paying attention
  • Abortion policy is an increasing, not a receding, irritant
  • Public awe of the judiciary is receding
  • The Supreme Court is at a turning point
  • Powerful voices advocate a return to originalism
  • The Republican Senator majority seems inclined to break filibusters of judicial nominees
  • The Democrats' arguments will not prevail in the public arena

Of these, I'm not terribly convinced about the "powerful voices . . [for] originalism" but I also see an additional reason to hope.

The role of the Internet as a medium of communication and expression has so transformed the ability of ordinary people to learn about the law and the judiciary that it is not only transforming how people learn, but also what they learn.

Decades ago, information about the judiciary and judicial decisions were filtered and organized by the mainstream media in a way that fit into the MSM's paradigm  That paradigm emphasized social security and particular ideas of social progress at the expense of individual rights and those other values that the elites deemed less valuable.

Removing that filtering function has facilitated discussion and learning outside of the elites' paradigm.  Today, ordinary Internet readers can learn of examples of judicial activism in ways not previously possible (or at least convenient). 

An informed populace is much less likely to accept uncritically judges who disguise policy choices as Constitutional interpretation. 

1:01 pm est 

Drilling in ANWR
Much attention is being paid to the Senate's recent action, approving oil exploration in the Arctic National Wildlife Refuge (ANWR). 
An interview with an environmental activist on this morning's Morning Edition on NPR gave an interesting insight to the reasoning of much of the environmental movement.  When asked whether the interviewee would prefer drilling in ANWR or drilling in other environmentally-sensitive areas where oil is easier to obtain and capable of extraction by order of the Bureau of Land Management, the environmentalist said, "I couldn't choose".
Environmentalism is absolutism and absolutism is the tyranny of a single value. 
We have competing values.  We want to preserve a clean environment that is enjoyable to humans and capable of sustaining diverse plants and animals. 
We also want to drive cars, live in heated homes and have the creature comforts that require electricity and gasoline.  For the foreseeable future, electricity and gasoline require drilling and extracting oil from the ground.
For decades we've been satisfied with buying our oil from producers in the middle east and other volatile places around the world.  That choice has required Americans to maintain a foreign policy that is designed to maintain our access to world oil markets.
Drilling in ANWR and elsewhere is a first step towards energy independence.  Developing alternative energy sources (nuclear, solar, wind, hydrogen, etc.) are other steps, but will take time.
In short, you can either choose to be dependent on the middle east for oil or you can choose to extract it from the American homeland. 
Not choosing, is not an option.  You make a choice either way.
7:26 am est 

South Carolina Moves Forward
The House passed a unanimous resolution approving the Senate's version of a tort reform measure, moving one step closer to putting the bill in front of the governor for signature.
7:09 am est 

Thursday, March 17, 2005

The Investor Class and the Ownership Society
An excellent piece by Ramesh Ponnuru on the statistical correlation between stock ownership and market-friendly voting. 
9:40 am est 

Reform Roundup
In South Carolina, after the Senate approved a House reform bill, opponents in the House offered more than 8,000 amendments; so many that they were carted into the chamber in a wheelbarrow. 
Cute--and emblematic of the kind of deep, meaningful thought given to the topic of reform by some of its opponents.
In New Hampshire, a reform effort seems bogged down by the President-elect of the New Hampshire Trial Lawyers, who argues that reforming the litigation system really won't lower malpractice insurance rates. 
Oklahoma's House has passed H.B. 1554, immunizing food producers and restaurants from liability for "obesity" lawsuits. 
In Florida, however, a ray of sunshine appears as Governor Jeb Bush makes a joint appearance with legislative leaders to support reforms in joint and several liability, premises liability, vicarious liability and changes to procedural rules governing venue and class actions.
7:52 am est 

Wednesday, March 16, 2005

Family of Deceased Protester Sues Caterpillar
The parents of a 23-year old protester, killed in a skirmish with Israeli defense forces, are suing Caterpillar Inc., the manufacturer of the bulldozer used by Israeli forces in the engagement. 
The protestor, Rachel Corrie, was acting as a "human shield" by standing in front of Israeli forces in a bulldozer who were leveling buildings alleged by the Israelis to have been used in terror attacks.
Corrie's family, and an assortment of anti-Israeli organizations, have been organizing protests and accusing Caterpillar of "war crimes" for more than a year. 
If Caterpillar is liable when Israeli forces kill a person with a Caterpillar bulldozer then every manufacturer of hardware that is utilized by military forces would be liable for the damage caused by those forces.  Clearly, that cannot be the law.   
11:57 am est 

Chavez on Unions
Linda Chavez has an interesting take on the present and future state of the Labor movement and how it spends its members' dues.
11:14 am est 

Frivolous Litigation and U.S. Competitiveness
Chrysler's CEO, Dieter Zetsche, says that the burden of frivolous litigation holds back U.S. companies and makes them less competitive than their foreign counterparts. 
In a speech to the Detroit Economic Club, the automaker's CEO described how meritless legal claims drive up costs for U.S. producers.  He described one case in which DaimlerChrysler was ordered by a Tennessee jury to pay $50 million for the deaths of two women in Arkansas in 2002 arising from a collision involving a Dodge Caravan.
According to Zetsche, the Arkansas collision was the result of a 17-year-old driver falling asleep and hitting the minivan at high speed, causing an unbelted passenger in the back of the van to hurl forward, killing the van's driver.  "The lawsuit was less about the accident and more about the trial bar going after "deep pockets"."
As I describe in Out of Balance, the cost of excess litigation in the U.S. is approximately $1,000 per person, including the costs of punitive damage awards, attorneys' fees and the "deadweight loss" caused by the fear of litigation itself.  The cost of litigation borne by producers, like U.S. automakers, gets passed through to individual consumers in the form of higher prices and lost opportunities. 
According to Zetsche, frivolous litigation and the rising cost of health car reduce U.S. competitiveness, resulting in the U.S. market share for Big 3 automakers this year dropping to an all-time low of 57.6 percent.
"No matter how touch anyone might think this business is today, it's going to get tougher still," he said.
9:07 am est 

Tuesday, March 15, 2005

West Virginians: Litigation System Out of Balance
A poll released by the U.S. Chamber's Institute for Legal Reform finds that a majority of West Virginians believe the current litigation system is out of balance.
78% of those polled believed that the "number of lawsuits" in state courts is a problem with 33% saying it is a "serious" problem.  The outcome is bipartisan, with 86% of Republicans, 66% of Independents and 76% of Democrats agreeing. 
71% of those polled said that "significant change" is needed.
74% of those surveyed believe that lawyers benefit most from the current system.  Only 4% think consumers benefit and only 7% think victims benefit. 
There are several litigation reform bills now pending in the West Virginia legislature. 
7:28 am est 

Scalia Speaks Out
In a speech to the Woodrow Wilson Center, Justice Antonin Scalia denounced several recent Supreme Court decisions as constituting little more than masked policy preferences of the majority. 
By disguising policy choices as Constitutional law, he argued, judges eliminate legislative flexibility as judicial choices become immutable precedents.  He said

"If you think aficionados of a living Constitution want to bring you flexibility, think again.  . . . You think the death penalty is a good idea? Persuade your fellow citizens to adopt it. You want a right to abortion? Persuade your fellow citizens and enact it. That's flexibility. . . . Why in the world would you have it interpreted by nine lawyers?"


7:15 am est 

Monday, March 14, 2005

The Problem With France
Anti-Americanism in France is nothing new, according to Professor Ralph R. Reiland.  Even when we've rescued them from two World Wars and one Cold War, they still think us "crude" and "simplistic". 
7:52 am est 

John Bolton and His Critics
Interesting pieces from Stephen Hayes and Robert Novak on President Bush's nominee for Ambassador to the United Nations.
7:44 am est 

Social Security Reform
On the battlelines of this debate there seem to be two competing arguments: one proposes alternatives to shore up the program's solvency or to improve its benefits, the other proposes no change at all, as if the program were holy writ, incapable of improvement or amendment.
On this point, compare John Fund's analysis of what FDR really thought about Social Security, concluding:
I suspect that, whatever his views might be on personal accounts today, FDR would have little use for liberals who attack them without any suggestions of their own on how to "try something."
With Michael Barone's thoughts about why the Democrats are flailing in search of a reason to be:

Democrats in power can make small, quiet moves toward redistribution, like the expansion of the earned income tax credit in the Clinton administration. Out of power, they can focus on policies for which arguments can be made by vivid anecdotes, like prescription drugs for seniors. Or they can obstruct change and wait for Social Security, Medicare and Medicaid to gobble up larger shares of the economy. But that will take time.

For now, Democrats are facing the fact that general arguments for a larger welfare state just doesn't seem attractive to most voters.

7:36 am est 

Sunday, March 13, 2005

No Lawsuit for Summer Homework
A Wisconsin judge has dismissed a complaint by a high school student and his father against the local school board for requiring pre-calculus homework during summer break.  The judge quipped:
"Had the Larsons done a bit more homework," they would have learned that the people of Wisconsin granted the legislature "power to establish school boards."
Philip K. Howard of Common Good said:
"I think it would have been more of a deterrent if the judge had sanctioned the father for bringing the lawsuit in the first place, " reasoning that fewer frivolous suits like this would be filed if potential plaintiffs knew they might be sanctioned for filing a complaint just to "see what happens."
12:22 pm est 

Rhode Island Reform
H.B. 5695 in the Rhode Island House of Representatives seeks to reform that state's civil procedure pertaining to medical malpractice actions by requiring an expert "certificate of merit" to accompany the complaint in a medical malpractice action, together with a tighter statute of limitations for certain types of medical malpractice claims.
12:16 pm est 

California Tort Reform Group Re-energized
Re-enegergized from the successful effort behind Proposition 64, California's Citizens Against Lawsuit Abuse is launching a new media campaign to grow public awareness over the problem of frivolous litigation. 
12:02 pm est 

Saturday, March 12, 2005

11:29 am est 

Still On the Loose
Georgia law enforcement is still searching for Brian Nichols, the alleged gunman in yesterday's fatal shooting of Judge Rowland Barnes, a court reporter and a sherrif's deputy.
After moving the search to the North Atlanta area around Sandy Springs, late Friday night authorities found the 1997 Honda Accord Nichols is alleged to have stolen downtown.  This development raised the possibility that Nichols never left the downtown area Friday morning as first thought.
Friday's commute was strange, with county and state police cruisers camped out along the major thoroughfares, trying to spot Nichols' getaway car. 
7:19 am est 

Friday, March 11, 2005

Search Focused on North Atlanta
WXIA-11 Atlanta is reporting that the search for fugitive Brian Nichols is focused in North Atlanta, around I-400, inside the perimeter. 
12:17 pm est 

Judge Rowland Barnes
12:15 pm est 

Atlanta Judge Killed, Suspect At Large
Local news outlets are reporting that a rape suspect wrestled a gun from a Sherrif's deputy inside the Fulton County Superior Court building in downtown Atlanta, killing Judge Rowland Barnes and perhaps some others.
Reports indicate that the suspect has stolen a car and is at large.  Helicopters are buzzing around downtown Atlanta as I write. 
Police vehicles have been rushing back and forth down Peachtree Street (from the court house, at the southwest end of street, to Crawford Long Hospital in midtown Atlanta).
10:37 am est 

Agent Orange Suit Dismissed
A federal court in the Southern District of New York has dismissed a civil suit by a group of Vietnamese nationals against Dow Chemical and Monsanto for their role in manufacturing the defoliant Agent Orange during the Vietnamese war. 
The plaintiffs claimed that use of Agent Orange by the U.S. military was a "war crime" and that the companies' involvement in the manufacture of Agent Orange made them liable in tort.
Although Judge Jack B. Weinstein reached the right conclusion in dismissing the plaintiffs' claims as a matter of law, he seemed to hold open the door to future claims.
In particular, the U.S. government had argued that the plaintiffs' claims should be dismissed under the "government contractors defense" which effectively shields government contractors from liability for damages caused by their products in the hands of the government.  Judge Weinstein rejected this reasoning, writing:
"To establish liability, the plaintiffs would have to show that the usage was illegal under international law; the defendants knew how their product would be used; and, that with knowledge, they supplied the product, facilitating and becoming a party to the illegality. 'Unfairness' to government contractors is not a convincing ground for ignoring their corporate liability under international law since it would be necessary to show that the corporation was aware of the intended illegal use when it supplied its product."
In an age where anti-American groups are quick to accuse any use of military force of being a "war crime", opening the door to civil liability for government contractors under any theory is a serious change to the law.  Would the manufacturer of rifles be civil liable if the U.S. military uses those rifles in a military conflict that some advocates claim is a war crime?  Judge Weinstein's opinion would seem to admit this is a possibility.
9:04 am est 

Thursday, March 10, 2005

High-Tech Competitiveness
A high-tech lobbying group, representing companies like Microsoft and Intel, is claiming that the U.S. may be in danger of losing its competitive edge. 
The group cites unfavorable differentials between U.S. and foreign spending on R&D, consumer broadband adoption, and science and math education. 
Among the group's proposals is that Congress should take more steps to limit frivolous litigation. 
7:32 am est 

South Carolina Logjam Broken
The South Carolina Senate appears to be moving forward with a bill abolishing joint and several liability along the lines previously approved by the State's House. 
7:23 am est 

Wednesday, March 9, 2005

Illinois Reform Bill
The reform bill mentioned in the last post is Illinois S.B. 1724
10:19 am est 

Poll Shows Support for Reform in Illinois
A new poll fromthe home state of the nation's worst "judicial hellhole" - Madison County, Illinois - shows bipartisan support for reform in that state. 
According to the poll, taken by, 75% of Illinois Democrats and 85% of Illinois Republicans believe the Illinois court system needs reform. 
10:16 am est 

Reform in South Carolina
Reform efforts in South Carolina are in danger of becoming snagged on the question of joint and several liability. 
There are a handful of bills pending in the state that would adopt a number of reforms, including abolishing joint and several liability, modifying venue provisions, adopting a state version of Fed. R. Civ. P. 11 and heightening standards for punitive damages awards. 
8:58 am est 

Monday, March 7, 2005

Washington Post Parses Rhetoric
An incredibly biased piece appeared in the Washington Post today, suggesting that Republicans are winning the war on tort reform not because of superior facts, but superior rhetoric.  Post staff writer Terry M Neal writes:
Republicans have so far been successful in their efforts to limit class action lawsuits, and have other tort reforms in their sights. They are winning because they control the rhetoric, not because they are armed with undisputed facts. 
The message begins at the White House. In his State of the Union Bush called on Congress to pass medical liability reform that "will reduce health-care costs and make sure patients have the doctors and care they need." By the time it's cranked up, this message will be carried via talk radio and cable and amplified with a multi-million dollar lobbying, PR and advertising blitz by the business and medical communities.
Um, Terry.  What about the "multi-million dollar lobbying" put out by the ATLA, Common Cause, and the dozens of other left-wing groups fighting to keep plaintiffs' lawyers the ability to tie down business with frivolous lawsuits?  He continues:
Republicans have so far been successful in their efforts to limit class action lawsuits, and have other tort reforms in their sights. They are winning because they control the rhetoric, not because they are armed with undisputed facts.
Certainly the folks at the ATLA have a thesaurus.  Have they lost the ability to "control the rhetoric" they use?
Using language to convey ideas in the mass media is nothing new.  Democrats have been using it for years, turning phrases that emphasize the positive elements of their message.
For example, "the right to an abortion" becomes "reproductive choice".  Decreasing the rate of gain in discretionary spending becomes a "budget cut".  Of course one of the all-times greats was when a tax cut aimed at stimulating growth became a "risky tax scheme."
Explaining tort reform is difficult because the problem combines the complexity of of the civil procedure system and its macroeconomic impact.  It's not the stuff of cocktail party banter. 
But, if you tell someone that they could get sued and spend $100,000 on legal fees, win the case (so that they had no liability) and still have no right to recover their legal fees from the party that sued them, they get the picture.
Too bad Terry M. Neal doesn't. 
4:27 pm est 

Saturday, March 5, 2005

Voters in Washington State to Decide Medical Malpractice Reform
Initiative 330 will go to the voters this fall after reform initiatives stalled in the legislature.  I-330 would cap noneconomic damages and limit some medical malpractice suits.
The initiative is fairly narrowly-crafted to apply only to medical malpractice claims.  Supporters are calling it a "downpayment on comprehensive liability reform."
7:47 am est 

Greenspan Unglues the Looney Left
More looney left bloggers have taken up Harry Reid's theme, accusing Federal Reserve Chairman Alan Greenspan of being a "controversial HARD-RIGHT IDEALOGUE" (capitals in original).
As Austin Bay concludes, this is simply an example of Democratic short-term tactical thinking, playing to the Beltway press, without regard for how it will play in the heartland. 
With a list of honorary degrees a mile long and two Clinton appointments to his (sic) credit, Greenspan can only look like a right-wing idealogue if Ted Kennedy is your idea of a moderate. 
7:38 am est 

Cedar Revolution
Protestors in Lebanon seeking the ouster of Syrian troops have dispatched armies of hotties:
Hat tip: Instapundit
7:26 am est 

Friday, March 4, 2005

Harry Reid Comes Unglued
Calling Alan Greenspan "one of the biggest political hacks we have here in Washington." 
According to his official bio at the Federal Reserve Bank, Greenspan has a PhD in Economics from NYU and has received a number of honorary degrees: 
Dr. Greenspan has received honorary degrees from Harvard, Yale, Pennsylvania, Leuven (Belgium), Notre Dame, Wake Forest, and Colgate universities. His other awards include the Thomas Jefferson Award for the greatest public service performed by an elected or appointed official, presented by the American Institute for Public Service, 1976 (joint recipient with Dr. Arthur Burns and William Simon); election as a Fellow of the American Statistical Association, 1989; decorated Legion of Honor (Commander) France, 2000; honorary Knight Commander of the British Empire, 2002; and he was the first recipient of the Gerald R. Ford Medal for Distinguished Public Service, 2003.

In contrast, Senator Reid's bio stresses his humble beginnings:



10:35 am est 

Spring 2005 Internet Industry Report
The Spring 2005 Report is now available through the Publications page.  Special thanks to Celeste Creswell and her colleages at Wargo & French for their efforts in writing this Report. 
8:04 am est 

Jon Stossel on Litigation

"I think that trial lawyers are looting the country, taking our money and freedom," Stossel said, adding that the United States should impose a law requiring people to pay for damages, instead of filing frivolous lawsuits." 

"Lawsuits are so destructive that we treat them like missiles . .  . Force is government in litigation. We need some, but force wrecks lives."

- Jon Stossel, in a speech to Californians Against Lawsuit Abuse

6:56 am est 

Thursday, March 3, 2005

Washington Malpractice Study: Claims Rising
A recent study from the Washington State Office of the Insurance Commissioner highlights the trend that litigation reform proponents have been claiming: that malpractice claims are increasing in frequency and in cost, even though relatively few claims find that a provider was liable. 
The Washington study, which examined malpractice insurance data from 1994-2004 from the providers that account for nearly 90% of the Washington market found that: 
  •  malpractice claims increased at an annual rate of 4.9%
  •  the average claim increased at an annual rate of 4.1%
  •  defense costs increased at an annual rate of 6.4%; and
  •  67% of those claims that incurred defense costs resulted in no compensation at all.

This last point is remarkable.  In a little more than two-thirds of the cases where the insurer contested liability, the insurer was right and owed the plaintiff nothing.

Washington has a growing movement to reform its litigation system which supported legislation in 2004 that narrowly missed passage. 

The Washington Liability Reform Coalition is hoping to do better in 2005, building on momentum achieved from successful litigation reform efforts in Georgia and Ohio.   

Of course this trend is entirely consistent with the economic model I describe in Out of Balance: Prescriptions for Reforming the American Litigation System.  Washington, like most states, allows plaintiffs a "free shot" a defendants.  Facing a claim in which it has no hope for ever getting its attorneys' fees reimbursed, a defendant will often settle simply to avoid the cost of defense.

The data in this survey demonstrates that it is becoming increasingly expensive for defendants to defend themselves, even when defendants "win" in over two-thirds of the cases they contest. 

1:00 pm est 

William Pryor's Filibuster
An excellent piece on Alabama's respect for William Pryor and why Senate Democrats are wrong to filibuster his nomination. 
12:36 pm est 

Wednesday, March 2, 2005

Blocking and Tackling
Democrats are using the William Meyers nomination and other Bush appointments to the bench as a fundraising tactic.
Sensitive to the possibility that Republicans may use procedural rule changes to cut short a Senate fillibuster, Democrats have been trying to raise funds through the controversy.
In one of the fundraising letters, Ted Kennedy is quoted to say "Our very ability to block these ideological judges is in jeopardy."
Of course, it was not long ago that Democratic Senators were in high dudgeon over the refusal of Republican Senators to approve President Clinton's appointees, labelling Republican efforts as "gridlock". 
1:21 pm est 

Showdown at the William Meyers Corral
The battle is heating up over this nominee to the 9th Circuit. 
12:49 pm est 

Tuesday, March 1, 2005

Fen-Phen Follies

Alison Frankel, writing in the American Lawyer, has a great piece on the atrocities committed in the ongoing fen-phen litigation. 


She writes:

The fen-phen class action approved in 2000 was supposed to be a new paradigm of how to resolve a mass tort equitably. Instead, the iron law of unintended consequences has ruled. Misconduct has not been punished, but rewarded. Some uninjured people have been paid to go away while thousands of claimants alleging real injuries still wait for compensation.

7:09 am est 

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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.