Jonathan Wilson is an
Atlanta attorney with more than 19 years of experience guiding growing private and public companies. He currently serves
as the outside general counsel of several companies and is the former general counsel of Web.com.com (NASDAQ: WWWW) and EasyLink
Services (NASDAQ: ESIC). He is also the founding chair of the Renewable Energy Committee of the American Bar Association's
Public Utility Section.
Wednesday, March 30, 2005
Securities Claims Against J.P. Morgan Dismissed
7:48 am est
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.
Bipartisan Support for Litigation Reform
7:14 am est
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.
Tuesday, March 29, 2005
Reform in Illinois
7:18 am est
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.
Monday, March 28, 2005
Herman Cain on the Ownership Society
7:22 am est
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.
Friday, March 25, 2005
Washington Post Skewers Reid on Social Security
10:25 am est
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.
Thursday, March 24, 2005
Venue Provision of Georgia's Reform Law Challenged as Unconstitutional
7:36 am est
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.
Wednesday, March 23, 2005
Reform Coming to Florida
7:54 am est
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."
Tuesday, March 22, 2005
AMA Study on Tort Reform Effects on Malpractice Insurance
2:06 pm est
A new study
released by the American Medical Association provides further substantiation to the claim that tort reform may result in lower
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.
South Carolina Governor Signs Tort Reform Bill
2:00 pm est
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.
Monday, March 21, 2005
Congress Passes Law for Terry Schiavo
7:12 am est
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.
The McCain-Feingold Snooker
7:01 am est
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?
Sunday, March 20, 2005
7:18 am est
Good News From Iraq
7:15 am est
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
"They're way down on their attempts, and even more on their effectiveness," General Sattler said.
Saturday, March 19, 2005
France and the Law of Blasphemy (Oh My!)
9:51 am est
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.
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?
Friday, March 18, 2005
An End to Judicial Activism
1:01 pm est
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
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
Drilling in ANWR
7:26 am est
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
Not choosing, is not an option. You make a choice either way.
South Carolina Moves Forward
7:09 am est
Thursday, March 17, 2005
The Investor Class and the Ownership Society
9:40 am est
An excellent piece
by Ramesh Ponnuru on the statistical correlation between stock ownership and market-friendly voting.
7:52 am est
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.
House has passed H.B. 1554, immunizing food producers and restaurants from liability for "obesity" lawsuits.
, 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
Wednesday, March 16, 2005
Family of Deceased Protester Sues Caterpillar
11:57 am est
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.
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.
Chavez on Unions
11:14 am est
Linda Chavez has an interesting take
on the present and future state of the Labor movement and how it spends its members' dues.
Frivolous Litigation and U.S. Competitiveness
9:07 am est
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
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.
Tuesday, March 15, 2005
West Virginians: Litigation System Out of Balance
7:28 am est
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.
Scalia Speaks Out
7:15 am est
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?"
Monday, March 14, 2005
The Problem With France
7:52 am est
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".
John Bolton and His Critics
7:44 am est
Social Security Reform
7:36 am est
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
Sunday, March 13, 2005
No Lawsuit for Summer Homework
12:22 pm est
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."
"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."
Rhode Island Reform
12:16 pm est 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.
California Tort Reform Group Re-energized
12:02 pm est
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.
Saturday, March 12, 2005
11:29 am est
Still On the Loose
7:19 am est
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
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.
Friday, March 11, 2005
Search Focused on North Atlanta
12:17 pm est
WXIA-11 Atlanta is reporting that the search for fugitive Brian Nichols is focused in North Atlanta, around I-400, inside
Judge Rowland Barnes
12:15 pm est
Atlanta Judge Killed, Suspect At Large
10:37 am est 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).
Agent Orange Suit Dismissed
9:04 am est
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.
Thursday, March 10, 2005
7:32 am est
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.
South Carolina Logjam Broken
7:23 am est
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.
Wednesday, March 9, 2005
Illinois Reform Bill
10:19 am est
Poll Shows Support for Reform in Illinois
10:16 am est
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 CommonSenseCourts.org, 75% of Illinois Democrats and 85% of Illinois Republicans believe
the Illinois court system needs reform.
Reform in South Carolina
8:58 am est
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.
Monday, March 7, 2005
Washington Post Parses Rhetoric
4:27 pm est
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?
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"
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.
Saturday, March 5, 2005
Voters in Washington State to Decide Medical Malpractice Reform
7:47 am est
The initiative is fairly narrowly-crafted to apply only to medical malpractice claims. Supporters
are calling it a "downpayment on comprehensive liability reform."
Greenspan Unglues the Looney Left
7:38 am est
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.
7:26 am est
Protestors in Lebanon seeking the ouster of Syrian troops have dispatched armies of hotties:
Friday, March 4, 2005
Harry Reid Comes Unglued
10:35 am est
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:
Spring 2005 Internet Industry Report
8:04 am est
Jon Stossel on Litigation
6:56 am est
"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
Thursday, March 3, 2005
Washington Malpractice Study: Claims Rising
1:00 pm est
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
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.
William Pryor's Filibuster
12:36 pm est
An excellent piece
on Alabama's respect for William Pryor and why Senate Democrats are wrong to filibuster his nomination.
Wednesday, March 2, 2005
Blocking and Tackling
1:21 pm est
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".
Showdown at the William Meyers Corral
12:49 pm est
Tuesday, March 1, 2005
7:09 am est
Alison Frankel, writing in the American Lawyer, has a great piece on the atrocities committed in the ongoing fen-phen
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.
Phone: 404-353-4833 | firstname.lastname@example.org
Jonathan B. Wilson is an Atlanta attorney at the law firm of Taylor English Duma LLP. Jonathan B. Wilson
provides legal advice to investors, companies and business executives involving corporate law, securities law, SEC matters,
intellectual property, website and Internet legal issues, start-ups, limited liability companies, partnerships, 1934 Act matters,
outsourcing, strategic alliance agreements, contracts, and other matters of importance to growing private and publicly-traded