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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Monday, May 30, 2005

Ronald Reagan Remembers
"Behind me is a memorial that symbolizes the Ranger daggers that were thrust into the top of these cliffs. And before me are the men who put them here. These are the boys of Pointe du Hoc. These are the men who took the cliffs. These are the champions who helped free a continent. These are the heroes who helped end a war. Gentlemen, I look at you and I think of the words of Stephen Spender's poem. You are men who in your "lives fought for life and left the vivid air singed with your honor.""
10:06 am edt 

France Rejects E.U. Constitution
From Paris:
French voters dealt a crushing defeat to the European Constitution today, demonstrating their determination to punish the leaders of France and of Europe after a bitter campaign that split the country in two.
As the polls closed, the French Interior Ministry said the no camp had 57.26 percent, compared to 42.74 for yes, with nearly 83 percent of the votes counted
8:05 am edt 

Sunday, May 29, 2005

Rebalancing the Republic Through the Courts
John Leo writes
Burt Neuborne of New York University law school said recently that his fellow Democrats may be making a mistake by depending so heavily on judges to establish law without seeking true public support.
Well, that's one way of putting it. Another is simply to say that the Democrats consistently rely on judges to impose legislation that they can't get through the normal democratic process because majorities don't want it. As a result, our politics and our courts have been deformed. A contempt for majorities keeps growing on the left, and contempt for the courts keeps rising on the right.
Megan McArdle, writing at Asymmetrical Information, says Republicans are determined to pack the court because "it is the only way Democrats have left them to undo the quasi-legislation that liberal judges wrote."
Perhaps the hysteria of recents months is a symptom of a more pernicious disease: a chronic imbalance in our republic.
Liberal frustration over the pace of social change in the legislature in the 1950s, 60s and 70s found voice in the legislative pronouncements of the courts. 
Unable to make abortions available through Congress?  Make it a Constitutional right through the judiciary.
Unable to legislatively impose secularism in public schools?  Make it Constitutionally prohibited to recognize traditional religious symbols in holiday musicals, graduation ceremonies and the like through litigation.
Unable to expand the American vision of socialism through expanding entitlement and other "safety net" programs?  Allow agressive plaintiffs' lawyers to litigate safety torts to a degree that forces business to seek a safe haven in no-fault insurance programs, thereby distributing wealth through insurance rather than through taxes.
10:02 am edt 

Saturday, May 28, 2005

Whither Europe?
This weekend the French will go to the polls to vote on the E.U. Constitution.  A rejection by the French is generally thought to presage disunion for the E.U., as former French Prime Minister Valery Giscard D'Estaing wrote it.
William Kristol predicts that a French rejection of the constitution might bring a "whiff" of reform to Europe. 
Javier Solana, whose job it is to promote the E.U., claims that "Neither Europe nor the world could afford the self-inflicted wound of a rejection of the constitution."  Unfortunately, this is exactly the kind of hyperbole that has brought the decision in France to a likely rejection. 
European elites who cannot imagine the future without a united Europe suffer from a lack of imagination.  Voters may very well reject the constitution and European leaders would do well to begin thinking about that future as a real possibility.
That they cannot speak volumes to their arrogance.  As D'Estaing said when asked about his document (which runs to the hundreds of pages), "The text is easily read and quite well phrased, which I can say all the more easily since I wrote it myself." 
Can you imagine an American politician saying this?
Felix Rohatyn suffers from a similar lack of imagination.  He argues that rejection "leads to a return toward a more fractured Europe, less cohesive and, as a result, less successful." 
But why does centralization automatically lead to success?  Why does the independence of Europe's member states guarantee failure? 
The more central question, writes John Vaught LaBeaume in Reason, is whether "a constitution that cements the E.U.'s centralized, inflexible decision-making really the most forward-looking, market-savvy, and truly liberal blueprint for a 21st Century Europe?"
Ironically, much of the impetus for a "non" vote in France is a fear of market forces and a loathing for competition.  Far too many French believe that a centralized E.U. will make France too much like the U.S., eliminating the French 35-hour work week and its six weeks of annual vacation.
Perhaps the further irony to come out of Sunday's referendum will be a future that is less determined and more subject to debate.  Opening France, and the rest of Europe, to a real debate over the state of its economy may be exactly what is needed to bring a "whiff" prosperity to the old continent. 
11:18 am edt 

Friday, May 27, 2005

House Judiciary Committee Approves Lawsuit Abuse Reduction Act
The House Judiciary Committee has approved the Lawsuit Abuse Reduction Act, setting the stage for possible House action on the bill in the next few months. 
As I've described in a previous post (April 19, 2005) the Lawsuit Abuse Reduction Act seeks to restore Fed. R. Civ. P. 11 to its 1983 format, requiring federal judges to impose sanctions on lawyers who file lawsuits that are not meritworthy in law or fact. 
As I describe in Out of Balance: Prescriptions for Reforming the American Litigation System, one of the reasons why Rule 11 has not been more effective in limiting frivolous litigation is that it was gutted by Congressional Democrats in 1993 to make sanctions discretionary, rather than mandatory.  Because judges rarely want to take the time out of their dockets to explore sanctions after a case is dissmissed, this small change in the rule went a long way towards vitiating the in terrorem effect Rule 11 was intended to have. 
By restoring the mandatory quality of sanctions under Rule 11, the LARA would make a significant step towards reducing the number of frivolous cases.
The LARA does, however, also have an additional requirement that deserves further study and may stand in the way of the bill's passage. 
As currently drafted, the LARA would require state courts to make a determination, early in the case, whether the case involves "interstate commerce".  If the case does affect interstate commerce, then the bill would require the state court to apply Rule 11 to the actions of the attorneys in the case.
Although the drafters undoubtedly intended the reference to interestate commerce to invoke Congress' authority to legislate, it is not clear how such a federal law would survive Constitutional challenge.
While the interstate commerce clause has been broadly interpreted to permit Congress to make laws regulating interstate commerce, I am not familiar with any judicial decisions that have interpreted the clause to authorize Congress to legislate state civil procedure in cases that affect interstate commerce. 
In other words, it is one thing for a federal law to regulate interstate commerce or to require that a certain class of cases be heard in federal courts.  It is quite a different thing, however, for Congress to instruct state court judges on procedural matters to follow in their courts. 
I'm not ready to take a position on this particular question at the moment, but would appreciate any thoughts my readers might have.  Please drop me a line at if you have any thoughts.
10:46 am edt 

Wednesday, May 25, 2005

Filibuster Fallout
The Washington Post reports that the White House is gearing up for a "battle royale" in its nomination of a Supreme Court Justice to replace William Rehnquist when he is expected to retire this summer.  The big question is how the Senate filibuster compromise will shape the battle lines in the coming fight.
Mickey Kaus, no partisan Republican for sure, writes that the filibuster compromise, brokered by a group of 7 moderate Republicans and 7 moderate Democrats, was more a matter of maintaining Senatorial power than it was about avoiding clash or confirming judges.  To that extent, he is certainly correct. 
If any individual Senator can hold up the business of the institution for as long as it takes a cloture bill to pass, that individual Senator retains enormous power.  Eliminating this power on the part of individual Senators reduces the Senate's institutional power to a degree as well.
From the same side of the political spectrum, Josh Marshall expresses cautious optimism over the compromise.  While bemoaning that three "extreme" judges will go through, Marshall claims that the nuclear option has not really been taken off the table and the virtues of the compromise will not become clear for weeks or months (i.e., when the battle over the next Supreme Court appointment is joined). 
Quoting Ronald Reagan (whom Marshall calls "another pol") to say, "trust but verify", Marshall attributes the potential for a Democratic victory in the compromise to the "suprisingly able" leadership of Harry Reid.  Defying all appearances, Marshall describes Reid's leadership as "understated" and "unaffected".  (If Reid's recent rants -- Bush is a "loser" etc. -- are understated, I'd hate to see him when he's hyperbolic). 
Marshall also has a point, however, that the option of changing Senate rules has not been ruled out.  In the same way that Democrats retain their privilege of using the filibuster in extraordinary circumstances (what is more extraordinary that the nomination of a Supreme Court Justice?) the Republicans have as much a legal ability as before to change the rules of the Senate.
From the conservative side of the spectrume, Stephen Bainbridge is pleased with the compromise, calling the filibuster a fundamentally conservative tool.  He argues that conservatives like Michelle Malkin, John Hinderaker and Hugh Hewitt who deplore the deal, would have traded possible short-term partisan advantage for the necessary long-term loss of this conservative tool.
Ultimately, for champions of Constitutional conservatism, the value of the filibuster compromise rests in this balance between partisan advantage and conservative intitutional balance.
The conservative approach values time-honored tradition and rewards institutions that tend to slow change.  Conservatives value historical lessons and look skeptically at change based on abstract notions or theories.
By avoiding a precedent that a filibuster can be overridden through a rules change adopted by a mere majority, the institutional skepticism that is embodied in the filibuster rule is upheld.  While that may work to the short-term disadvantage of Republican partisans (after all, the compromise throws two Republican judicial nominees "under the bus") but may well work to the long-term advantage of conservative principles more generally.
8:03 am edt 

Monday, May 23, 2005

Krugman on Economics: Forward into the Past
Conservative George W. Bush defeats Massachusetts liberal John F. Kerry by a 2 million popular vote margin, campaign on the theme of the "Ownership Society" in which he promises to empower individuals by lowering their taxes and opening the gates to individual capital ownership.   New York Times columnist Paul Krugman says this proves the American electorate is hungry for socialism. 
Confused?  You're not the only one.
Socialism has been dead for at least 20 years.  But it lives on in the Economics Departments of a few college campuses and on the editorial page of the New York Times. 
Krugman says the election of 2004 was about protecting America from "gay married terrorists".  While it's true that President Bush tapped into the majority's concern over shifting cultural values and the role that elites -- from the media to the courts -- have taken in advocating cultural change towards a particular secular viewpoint, the election was not all about guns and Bibles.
There could not have been a clearer clash on issues between Bush and Kerry.  Bush campagined on social security reform.  Kerry opposed it.
Bush campaigned to end the estate tax and expressly promised to reform the income tax.  Kerry opposed Bush but offered no real alternative.
Krugman points to a law passed by a bi-partisan majority in Maryland (a state that went for Kerry by a 12 percentage point margin in 2004) before getting struck by the veto of Maryland's Republican Governor Robert Ehrlich as evidence that American voters want "economic security".  He argues that, "when given a chance to make a clear choice" Americans "support a stronger, not a weaker, social safety net." 
Krugman's problem is that there is simply no evidence to support his conclusion. 
The latest Pew study on demographics and party allegiance, for example, suggest that the breakdown between Republicans and Democrats is largely unchanged over the past few years.  Republicans have simply done a better job of articulating their core beliefs. 
As the Pew study concludes, Republicans offer an optimistic vision for economic opportunity.  They offer individuals the opportunity to succeed economically and support legislative initiatives to remove governmental barriers to individual achievement.
Democrats are "cynical" and assume that most individuals will fail.  Democrats support governmental solutions intended to protect individuals against their own failures to support themselves economically.
If America remains an optimistic nation it will remain a nationa that supports individual achievement.  The history of the past 70 years, and the current economic woes of Western Europe, support the conclusion that economic achievement is the enemy of socialism.
Krugman just doesn't see it.
11:18 am edt 

Sunday, May 22, 2005

Changing the Rules
Kevin Drum, writing in a blog for Washington Monthly in response to an argument from Juan Non-Volokh, enunciates what may become the new Democratic argument for the filibuster: you can't change the rules in mid-stream.  He writes:
My broader point is that the real issue in the filibuster fight isn't the filibuster itself — or blue slips or Rule IV or any other specific rule — it's the general principle that rules shouldn't be cynically changed en masse just because your guy is in power and you've decided they're no longer convenient. As it happens, I'm not much of a fan of filibusters myself: their history has mostly been anti-liberal, and in principle I think majorities should be able to pass legislation if they can muster the votes. However, the rules shouldn't change midstream. If Republicans and Democrats could agree on a broad set of rule changes that eliminated the filibuster but didn't take effect until 2009, I'd support it. That's fair, since no one knows which party will be in control then. I'll take my chances that the Dems will win in 2008 and the rule changes will work in my favor.
But if the rules can't "change midstream", when does the majority get to change the rules?  Christmas vacation? 
If Drum agrees that the majority should be able to change the rules "if they can muster the votes" then the majority has to be able to change the rules while Congress is in session, etc.  There is no appointed Constitutional time for rules changes and a rules change in response to unprecedented tactical moves by the minority seems as good a time as any. 
And would this apply to the minority's tactics as well?  We've been listening to the hardcore Senate Democrats saying that their threat of a filibuster is justified because (a) Bush's nominees are "out of the mainstream" or (b) filibuster's are a practice with a long tradition.
While point (a) is at least debateable (I think they're not out of the mainstream but I acknowledge that others may disagree) point (b) is not.  But if the majority would be prohibited, by Drum's rule, from doing anything differen "midstream" shouldn't the minority also be prohibited from any novel tactical moves? 
What is telling is that the "no midstream rules change" argument is both new, slightly disingenuous, and gaining steam among the far left bloggers
8:12 am edt 

Saturday, May 21, 2005

Constitutional Authority for Senate Rule-Making
This article in the Harvard Journal of Law and Public Policy outlines and Constitutional justification for the Senate's ability to changes its rules by simple majority vote. 
It will be through this procedure that Republican Senators may change the Senate's rules next week to prevent the filibustering of judicial nominees. 
2:14 pm edt 

Constitutional History of Filibusters
The Federalist Society has published an excellent white paper on the Constitutional history of the filibuster and the Senate's role in advising and consenting to judicial nominees.
Click here for the download (in .pdf). 
2:10 pm edt 

The Left Melts Down
The language from the left contigues to boil over from the angry to the silly as activists from the anyone-but-Bush camp try to maintain pressure on Democratic Senators to prevent any compromise on confirming judicial nominees. 
According to newspaper reports, Barbara Boxer sought to invoke the end of the world in her description of the filibuster impasse:
California Supreme Court Justice Janice Rogers Brown is a right-wing extremist unfit for confirmation to a federal appeals court, and Republicans in Congress are exhibiting the height of arrogance by jamming her down Democrats' throats, U.S. Sen. Barbara Boxer said Friday.
Eleanor Clift, not usually known for overheated rhetoric, seemed unable to contain herself in describing the conflict:
And after a wave of courthouse violence, Texas Republican John Cornyn said on the Senate floor that he wasn’t sure there was a cause and effect, but he could understand how people get so upset. Republican Rep. John Sensenbrenner, chairman of the House Judiciary Committee, announced he would hold hearings on federal court budgets, suggesting there is more than one way to rein in judges and that is to starve them into submission.
This is dangerous business when an inflamed minority, the religious right, demands the ouster of any judge that doesn’t rule their way.
Now who is really inflamed?  The Republicans who want to put their nominees to an up-or-down vote or the far-left Democrats who are unwilling to let majority rule govern the Senate's role in giving advice and consent?, of course, is trying to whip up a rabble to stand outside the Capitol next week.  They haven't had much of a response so far, but if gangs of marauding youths next week attack the Starbucks' and McDonalds' on the Hill, you'll know whom to blame.
1:34 pm edt 

Friday, May 20, 2005

Warner May Be Key to Filibuster
Both Tim Russert and Mark Leon Goldberg believe that Virginia Senator John Warner may be the key to the judicial filibuster impasse. 
Russert notes that Warner is one of the "gang of 12" moderate Senators from both parties who have been trying to broker a compromise.
Warner has conservative credentials but has also been broken ranks on several occasions to vote with moderate Democrats.
Goldberg recounts Warner's many, nuanced statements on the issue, beginning with this model of non-specificity: 
“I tend to be a traditionalist, and the right of unlimited debate has been a hallmark of the Senate since its inception. Without question, though, I am strongly opposed to the use of the filibuster to block judicial nominations."
2:33 pm edt 

Thursday, May 19, 2005 Depicts Frist Blowing-up Capitol
As predicting in these pages earlier today, has released an ad depicting Senate Majority Leader Bill Frist, looking like the evil emperor from Star Wars, blowing up the Capitol. 
3:33 pm edt 

Filibuster Follies
We should expect that the left-wing groups will turn up their rhetorical volume dials in the next few days as a confrontation looms on the judicial filibuster issue.
It seems clear that the Senate Republicans will move forward with the "nuclear option", changing Senate rules to eliminate filibusters on judicial appointments.
With Republicans not backing down, the left-wing activists who stand behind the Democrats when it comes to judicial appointments are going to have to try to raise the stakes.  They will try to convince the Democrats in the Senate that conceding to the Republicans will hurt them in campaign contributions or standing. 
Meanwhile, the battles laws seem very firmly drawn:
The confirmation process has been politicized beyond anything we've seen in the past. Special interest groups have staked out extreme positions on a host of issues -- the death penalty, racial preferences in education, and partial birth abortion, to name a few. If a nominee fails to meet a litmus test on any one of these issues, the groups demand a filibuster. All that is required is the announcement by the minority that it is filibustering and the normal presumption of simple majority rule is notched into a three-fifths requirement. Accordingly, filibusters are now more readily available. The predictable has occurred: interest groups have been unleashed, and the confirmation process has become longer, more contentious, and more divisive.
I recall two judicial nominations of President Clinton's particularly troubling to me and my fellow Republican members when I was the Republican Leader in the Senate. Despite our objections, both received an up-or-down vote on the Senate floor. In fact, I voted to end debate on one of these nominees while voting against his confirmation. Republicans chose not to filibuster because it was considered inappropriate for nominations to the federal bench. 
By creating a new 60-vote threshold for confirming judicial nominees, today's Senate Democrats have abandoned more than 200 years of Senate tradition. 
 For the first time, judicial nominees with clear majority support are denied an up-or-down vote on the Senate floor through an unprecedented use of the filibuster. This is not a misrepresentation of history; it's a fact.
If anyone doubted which side of the political aisle is playing dirty in the fight over federal judicial nominees, he hasn't read about the National Abortion and Reproductive Rights Action League's mission to dig up financial and other dirt against 30 sitting federal appellate judges.
* * *
But what makes this more interesting is that one of the partners in the consulting firm is Craig Varoga, a former aide to Senate Minority Leader Harry Reid. Should we assume complicity on Reid's part?
Until I hear him denouncing this outrage, I'll presume he's supportive of it. With his consistent pugnaciousness and pettiness in these Senate skirmishes and his recent demeaning reference to President Bush as a "loser" before high school students, we now know Reid's not the mild-mannered public servant he pretends to be.
Don't forget, also, that Reid recently smeared by innuendo one of the president's appellate court nominees when he suggested that very damaging information existed in the judge's confidential FBI file.
* * *
If everyone's finances are so relevant all of a sudden, perhaps someone should do an expose concerning the financial workings of NARAL to inquire, among other things, into what kind of incentives NARAL and other such groups have actually to be pro-choice, as opposed to pro-death. What's good for the goose ...
11:13 am edt 

Wednesday, May 18, 2005

Negligent Sex?
This isn't really a desparate attempt to drive traffic to my site.  I promise.
A Massachusetts court has recently had to resolve the question, as a matter of tort law, what duty of care a pair of non-married adults owe to each other for injuries resulting from consensual sex between them.
I'll leave the details of the case for those with strong stomaches who are willing to read the opinion found in the preceding link.  In summary, however, the plaintiff (male) was injured when the defendant (female) changed her position during the middle of intercourse. 
The trial court granted summary judgment in favor of the defendant, finding that, as a matter of law, there was no applicable standard of care between two consenting adults engaged in sex.  Consequently, one of those adults could not be liable for negligence in connection with injuries suffered by the second adult.
The Massachusetts appellate court affirmed the trial court's holding, but declined to support its rationale that there was no duty of care.  Instead, the appellate court reasoned:
Whether persons involved in consensual sexual relations owe each other a legal duty of reasonable care in the conduct of those relations is a question of first impression in Massachusetts. Generally, as the plaintiff claims, tort law requires that a duty of reasonable care be exercised to avoid injury to others. Reasonable care is determined by the "standard of conduct demanded by the community for the protection of others against unreasonable risk." Restatement (Second) of Torts § 283 comment (c) (1965). However, "[i]t should be recognized that 'duty' is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection." Prosser & Keeton, Torts § 53, at 358-359 (5th ed. 1984). Here, the defendant can be found liable to the plaintiff for his injuries only if we determine that the defendant owed him a legal duty of reasonable care in the conduct of their consensual sexual relations. If we determine that no such duty of care existed, the defendant is entitled to summary judgment. See Dhimos v. Cormier, 400 Mass. 504, 507 (1987).
* * *
While it is inappropriate and unworkable to hold consenting adults to a standard of reasonable care in the conduct of private consensual sexual behavior, we conclude that it is appropriate that they be held to a standard that requires them not to engage in wanton or reckless conduct toward each other during such consensual sexual conduct. "The words 'wanton' and 'reckless' are . . . not merely rhetorical or vituperative expressions used instead of negligent or grossly negligent. They express a difference in the degree of risk and in the voluntary taking of risk so marked, as compared with negligence, as to amount substantially and in the eyes of the law to a difference in kind." Commonwealth v. Welansky, 316 Mass. 383, 399 (1944). See Cohen v. Davies, 305 Mass. 152, 156 (1940) (indifference to consequences distinguishes wanton or reckless behavior from negligence). Since "[t]he essence of wanton or reckless conduct is intentional conduct . . . which . . . involves a high degree of likelihood that substantial harm will result to another," Commonwealth v. Welansky, supra, citing Restatement of Torts § 500 (1934), we believe that a fact finder is capable of recognizing such extreme conduct, impartially and without prejudice, even in the context of consensual sexual behavior.[7] 
So, the next time you find yourself having sex in Massachusetts, be careful not to do anything "wanton or reckless".  Is everyone clear on that?
Of course not.  The trial court was right to find that there was no duty of care.  Consenting adults "assume the risk" when they venture into the bedroom and there is no workable way for courts to arbitrate injuries sustained in these circumstances.  The appellate court has introduced a who new scope of human endeavor to the scrutiny of the courts and we cannot imagine what new judicial horrors will befall us as we begin to litigate what kinds of sexual activity are "reckless" and which are merely "grossly negligent". 
A number of legal blogs have already taken up the case, including Eugene Volokh, Christine Hurt and Walter Olson
Of these, Professor Hurt has the most interesting observation: 

Interestingly, the court mentions that the policy behind sports assumption of the risk ("no duty") cases is that if everyone involved in a sport had a duty to use reasonable care to one another, then that might have a chilling effect on sports participation.  The court did not reiterate that policy with regard to sexual activity, though!


2:28 pm edt 

Tuesday, May 17, 2005

Dire Predictions on Filibusters

Tod Lindberg

The point is that each escalation has been seen by the escalating side and presented as nothing more than a reply in kind: an eye for an eye. In fact, we have gone from "a tooth for a tooth" to "a whole upper palate for a tooth," and future generations may come to think that justice is depicted as blindfolded in accordance with the doctrine of "two eyes for an eye."

A showdown can be averted if a half-dozen senators from each party can unite both to stop filibusters and to prevent reckless rule changes. Are there enough senators who value their institution enough to resist the irresponsible incitements of the interest groups on both sides?
"what some lawmakers call a constitutional crisis"

The Senate's institutional paralysis over judicial confirmations is a political problem for which there is a political solution: 60 Republican senators. The president believes that Democratic obstruction of judicial nominees contributed to Republican gains in 2002 and 2004. In 2006, 17 of the Democrats' seats and that of Sen. James Jeffords of Vermont, their collaborator, are up, five of them in states the president carried in 2004.

It has been 98 years since Republicans have had 60 senators. But in the past 50 years, there were more than 60 Democratic senators after seven elections: 1958 (64), 1960 (64), 1962 (67), 1964 (68), 1966 (64), 1974 (61), 1976 (62). Republicans might reach 60 if the president devoted as much energy to denouncing obstruction of judicial nominations as he is devoting to explaining Social Security's problems. Solving those problems is important, but not as important as achieving a judiciary respectful of the Constitution.

No Democratic filibuster can stop the 2006 elections. Those elections, however, might stop the Democrats' filibusters.

Back in January, Senate Democrats were saying that they would shut down the Senate if Republicans made this rule change. Now they are singing a different tune. Minority Whip Richard Durbin, one of the most partisan Democrats, assures everyone that they're not really going to obstruct very much at all.
The reason is that Democrats know that obstruction does not play well at the polls. Voters at some point ask what you stand for. Old Media are not going to paint Democrats as obstructionists. But New Media can. For years, Sen. Tom Daschle received positive coverage in the Sioux Falls Argus Leader, South Dakota's dominant newspaper. But during the 2004 campaign, several local anti-Daschle blogs took on Daschle and the paper, and circulated stories that put him in a less favorable light. Daschle had won seven elections in South Dakota. He lost in 2004.  
* * *
How this issue will play out in Congress is unclear. But do Democrats want to face this reshaped electorate with our reconfigured media with no other message but obstructionism?
"filibuster fight will be disastrous for the GOP"
8:31 am edt 

Saturday, May 14, 2005

Federalist Society Re-cap
We had a live debate on Thursday at the Atlanta Federalist Society where I was on a panel with Bill Clark (Georgia Trial Lawyers Association), Allison Wall (GeorgiaWatch) and Deborah Winegard (Medical Association of Georgia).  Jonathan Ringle from the Fulton County Daily Report moderated.
With this being a Georgia event, much of the discussion centered on the reforms enacted through Georgia's Senate Bill 3, discussed earlier on these pages.  In particular, Clark and Wall directed much of their fire at Winegard because of the healthcare-specific provisions of that bill.
One example is the provision of Senate Bill 3 that raises the standard required to sustain a malpractice claim against an emergency room doctor.  S.B. 3 raises that standard to "grossly negligent" by "clear and convincing" evidence.
Proponents of S.B. 3 aruged at the bill's adoption that the exigencies of emergency room care required that ER doctors be given a break.  Patients with "acute" symptoms in a time-sensitive environment are harder to manage and their is a higher risk of an adverse outcome.  For that reason, proponents argued, ER doctors should not be liable except where they are more than merely negligent.
Bill Clark argued that the standard of "grossly negligent" by "clear and convincing" evidence was very close to a standard of criminal liability and that it was too much to exempt ER doctors from all liability except that which would be criminal.
I tried to focus my remarks on the "big picture".  There are approximately 6 million civil cases filed in U.S. state courts every year: 3 million contract cases and 3 million tort cases.  Med-mal cases are important to society and the individual litigants, but they make up a small percentage of the total litigation burden on the U.S. economy.
In response to some of the arguments in Out of Balance: Prescriptions for Reforming the American Litigation System, Bill Clark suggested that their were "constitutional" reasons to resist fee-shifting offer of judgment rules and the loser-pays rule of attorneys' fees.
I think their is an interesting argument to be made, but I'm not sure that Bill made it.  Congress has enacted laws to govern civil litigation in federal courts and often those rules require the dismissal of suits before trial.  Certainly it is not the GTLA's position that any pre-trial dismissal of a suit is unconstitutional.
I hope to address the more interesting constitutional question in a later post.
10:46 am edt 

Thursday, May 12, 2005

Newt Gingrich and the Crossroads of Conservatism
The good folks at PardonMyEnglish are running an enhanced version of Part I.  Please check out their site. 
7:53 am edt 

Wednesday, May 11, 2005

Should Wal-Mart Pay More?
Thomas Sowell asks this question and provides his own answer in his latest piece:
The latest liberal crusade is against the Wal-Mart stores.
A big headline on a long article in The New York Times asks "Can't A Retail Behemoth Pay More?"
Of course they can pay more. The New York Times could pay its own employees more. We could all pay more for whatever we buy or rent. Don't tell me you couldn't have paid a dime more for this newspaper. But why should any of us pay more than we have to?
According to The New York Times, there is a book "by a group of scholars" due to be published this fall, arguing that Wal-Mart has an "obligation" to "treat its employees better."
This can hardly be called news. Nothing is easier than to find a group of academics -- "scholars" if you agree with them -- to advocate virtually anything on any subject. Nor is this notion of an "obligation" new.
For decades, there has been lofty talk about the "social responsibility" of businesses or about a "social contract" between the generations when it comes to Social Security. Do you remember signing any such contract? I don't.
As Sowell describes it, there is no social contract.  If only those who wrote about the law and economics in the popular press could come to understand that the popular descriptions of these issues would be much clearer and accurate.
Sowell recounts the argument that, somehow, Wal-Mart falls short of its obligations by paying its entry-level employees a wage that is above the poverty line for a family of three, but below the poverty line for a family of four.  Although it complies with applicable labor laws and pays the federal minimum wage or better the academics claim Wal-Mart has an obligation to pay more.
How much more, you might wonder.  Enough to put a family of four above the poverty line?  Of course.  But what about a family of five?  Sure, why not.  How about six?
The point is that if every employer had an obligation to pay its employees not according to the value of their work but according to the needs of their families, our entire system of workplace compensation would be turned upside down.
For years, advocates of women's rights have lobbied in favor of "equal pay for equal work", arguing that women, on average, are paid less than men for the same jobs. 
If this group of academics had their way, perhaps men (who have children and stay-at-home wives) should get paid more than women (who are, perhaps, unmarried or have fewer children than men whose wives become homemakers).
That's obviously wrong and proves Sowell's point.  Employees earn their pay by the value they deliver to their employers.  Software designers earn more than fast-foot cash register operators because the value delivered by a software designer who creates a new product is greater than the value delivered by the cash register operator.  The personal finances and family needs of the two employees are simply irrelevant to the decision to pay the employee.
Sowell concludes:
It would be devastating to the egos of the intelligentsia to realize, much less admit, that businesses have done more to reduce poverty than all the intellectuals put together. Ultimately it is only wealth that can reduce poverty and most of the intelligentsia have no interest whatever in finding out what actions and policies increase the national wealth.
They certainly don't feel any "obligation" to learn economics, out of a sense of "social responsibility," much less because of any "social contract" requiring them to know what they are talking about before spouting off with self-righteous rhetoric.
7:03 am edt 

Tuesday, May 10, 2005

Fixing the Democrats
E. J. Dionne has an interesting view of the political strategy behind the DeLay scandal, the filibuster fight and social security reform:
The stakes in politics are about to get a lot higher.
The partisan battles in the coming weeks -- on judges, Social Security and the future of Tom DeLay -- are part of a larger struggle in which Republicans are seeking to establish themselves as the dominant party in American politics. Essential to their quest is persuading Democrats, or at least a significant number in their ranks, to accept long-term minority status.
The current acrimony in politics is incomprehensible unless it is understood as the inevitable next act of a long-term struggle. Its ferocity arises from the Democrats' refusal to accept the role assigned them by their opponents. They are taking a stand across a broad front not simply to "obstruct" current GOP designs but to reverse a Republican political offensive that began during Bill Clinton's presidency.
In fact, every one of today's fights can be seen as a response to something that happened in the 1990s.
6:20 am edt 

Monday, May 9, 2005

U.S. Chamber of Commerce
John Bachman, the chairman of the U.S. Chamber of Commerce, has proposed a list of reform efforts for legislators. 
Among his list of reforms is health care, social security, free trade and tort reform.  As lists goes, this is not a bad one.
My concern, though, is with Bachman's analysis of tort reform.  He writes:
If you were to do a survey of large companies, you would find that the No. 1 concern of large organizations in the United States and large businesses in the United States today is tort reform. Tort reform is seen by the business community, or I should say by most in the business community, as sort of a hydra-headed monster. It costs, in frivolous lawsuits, every American about $800 a year. The results in runaway jurisdictions turn to what has come to be known as "jackpot justice," where these incredibly big settlements for relatively minor offenses seem to take place.
We at the U.S. Chamber of Commerce believe that justice should be simple, fast, fair and not frivolous. But we also believe that people who have a claim, the claim should be heard and addressed. It is not to say there is not a role for tort. It is to say, where does it fit in? And where are the excesses? And, as I say, it is the No. 1 concern of large businesses, and, interestingly, it is the No. 2 concern of small businesses. Small businesses often see themselves as one lawsuit away from bankruptcy.  
So what are the issues within tort reform that makes it a hydra?
• First, class-action fairness. And here the chamber was part of an important victory, which has to do with jurisdiction shopping. They've addressed some of those issues in legislation that was passed in Washington earlier this year.
• The second issue they look at is medical malpractice. This is terribly important to hospitals, doctors and insurance companies. It is a very, very challenging issue. We've more recently found that the American Medical Association has joined forces with us to deal with some of these issues. If you live in St. Louis, look across the river at Illinois and you'll find that the hospitals are closing their obstetric, gynecology operations. The people are just . . . the doctors are just simply abandoning the field; the hospitals can't afford the insurance, so you're seeing a real reduction in those areas. In Missouri, doctors are leaving practices because they can't afford to pay for the malpractice insurance any longer, and we believe that it's important that insurance costs come under control in this regard and that we see caps on some of the damages.
• We're also looking at asbestos litigation, which has bankrupted a number of companies. You've seen them here in Colorado - companies that have been forced into bankruptcy because of asbestos litigation. We estimate this has cost 60,000 jobs so far, and it has the potential in the eyes of some to be a bigger issue than tobacco. And yet 90 percent of the claimants have had no injury. So the people who desperately need financial relief are being held back in most cases because of these people trying to get these incredible blockbuster lawsuits rather than saying let's get the money to the people who need it and get it to them now. We would advocate that.
My concern is that Bachman identifies the problem of excessive litigation and properly concludes that the system needs reform, but his solutions fall far short of truly fixing the problem. 
Bachman's citation to the $800-per-person cost of litigation is correct (if understated).  There is too much litigation in this country and it drives up the costs of goods and services for anyone.  But how to fix it?
Bachman notes the Congress has recently reformed some of the procedural rules governing class actions, and then states that medical malpractice and asbestos litigation are a problem.
Unfortunately, though, med-mal and asbestos are a relatively small part of the $280 billion cost of excess litigation.  What's worse is that industry specific changes to the litigation rules for these kinds of cases (a) give a false sense of improvement to the electorate and (b) do nothing to improve the system for all of the other cases.
The electorate has a limited appetite for legal reform.  It's difficult to explain to voters and its proponents often have their own interests in mind.  If the health care industry reforms med-mal litigation today, the public will be less inclined to consider other litigation reforms tomorrow.  They will have tired of the argument.
The Chamber would be better served by looking to systemic changes in the litigation system -- the kinds of changes that would improve the balance in the system in a way that makes the entire system more fair and more efficient.
Piecemeal changes - med-mal, asbestos, etc. - only complicate the political effort and will ultimately have little impact on the largest portion of our excess litigation cost. 
4:04 pm edt 

Sunday, May 8, 2005

Balancing the Budget
Does anyone care about balancing the federal budget anymore?
Robert Samuelson doesn't think so.  He points out that the Republicans have made little effort to balance the budget for the past several years and the Democrats have offered no alternatives.
Meanwhile, Stuart Benjamin notes a new report from the Cato Institute on the GOP's profligate spending habits. 
The executive summary to the Cato report claims that President Bush has presided over "the largest overall increase in inflation-adjusted federal spending" since Lyndon Johnson.  It concludes that "the GOP establishment in Washington today has become a defender of big government."
Certainly 9/11 and the war on terror have proven expensive and it's entirely reasonable for the administration to emphasize victory in the war over budgetary balance.  If the war isn't won, there may be no budget left to balance.
And yet that can't be the entire answer.  9/11 can't be blamed for continued increases in non-defense and non-intelligence spending. 
The conclusion that at least some Republicans have become entrapped by the bureaucracy they were elected to dismantle echoes the claims in Newt Gingrich's white paper: Conservatism at the Crossroads. 
3:08 pm edt 

Edwards in '08
The nation's best-known plaintiffs' lawyer may have his sights on the 2008 Democratic nomination.  Former Senator John Edwards is moving back to North Carolina to focus on a foundation he started to fight poverty.  If his wife recovers her health (she is receiving radiation treatment for breast cancer) Edwards could be a contender for his party's nomination. 
2:56 pm edt 

Saturday, May 7, 2005

Frivolous Lawsuits in California
Satinder Brar, has filed suit against 68 liquor stores for allegedly failing to post a notice that use of their ATM/debit machines will result in a fee, according to the Whittier Daily News.
One might wonder how an individual such as Mr. Brar could have been tricked into paying a hidden surcharge at 68 different liquor stores, but then one might be assuming that Mr. Brar had ever been tricked.  In fact, the complaint alleges that Brar visited each of the stores, used the debit machine, paying a fee from $0.35 to $0.99 in each case.  He even claims to have saved the receipts, clearing making his purchases solely for the purpose of developing his lawsuit.
What makes the case especially interesting is Satinder Brar's lawyer, Harpeet Brar.
According to the article, Harpeet was one of many lawyers who made a living under California's notorious Unfair Competition Law 17200 in the days before California's citizens rose up to amend it through Proposition 64. 
Before Proposition 64, California courts had allowed attorneys to bring class actions under UCL 17200 based upon any legal infraction regardless of whether the plaintiff had actually been injured by the infraction.  In one famous case, for example, the plaintiffs' attorney had his mother form a corporation which then sued over 1,000 convenience stores for allegedly selling cigarettes to minors.  Underage smoking may be a societal bane, but the plaintiff corporation had suffered no injury as a result.
Through Proposition 64, which was supported by a number of groups including, California amended UCL 17200 to add the requirement of "standing" -- that the plaintiff actually have suffered an injury before bringing suit.
Which brings us back to the Brars.  The article does not indicate how the two are related, apart from their last name, but it does point out that they both live at the same address.
This is relevant because Harpeet Brar is the subject of an injunction in Orange County Superior Court that prohibits him from filing frivolous lawsuits.  Into the fray steps Harpeet's new client, Satinder.
Although the Brars claim to be acting on behalf of consumers, they've told store owners that they'd be willing to settle -- for the modest sum of $1,000 each. 
8:21 am edt 

David Gelertner tells us that every loophole will be exploited; every exploited loophole will be closed. 
7:59 am edt 

Friday, May 6, 2005

The Tyranny of the Present
Victor Davis Hanson sounds a recurring theme in the Chicago Tribune, describing how we underemphasize (ignore? forget?) history in our discussions of current events and issues.
We spend billions of tax dollars on social security for future generations, forgetting the toils of past generations and the contrast between their relative poverty and our relative luxury.
We make other policy choices - restricting emissions to improve air quality, restricting development to maintain undeveloped wilderness - all in the name of future generations, forgetting the efforts of those generations who felled trees to build our cities and levelled the land to build our highways.
I call this a recurring theme because it seems that a number of recent events have conspired to drive home the value of history.
Senators threaten to filibuster the President's appellate judicial appointments and both parties make appeals to history to justify their positions.
Some court houses post copies or artistic renderings of the ten commandments and both their supporters and their opponents claim that the historic interpretation of the First Amendment justify their position.
California Supreme Court Justice Janice Rogers Brown, a Presidential nominee to the D.C. Circuit Court of Appeals, authors a number of judicial dissents, relying upon an historical view of the Constitution.  Her detractors accuse her of extremism.
Hanson's view of the value of history and its relevance to current events is evocative:
To appreciate the value of history, we must also accept that human nature is constant and fixed across time and space. Our kindred forefathers in very dissimilar landscapes were nevertheless subject to the same emotions of fear, envy, honor and shame as our own.
In contrast, if one believes human nature is malleable--or with requisite money and counseling can be "improved"--then history becomes just an obsolete science. It would be no different from 18th Century biology before the microscope or early genetics without knowledge of DNA. Once man before us appears alien, the story of his past has very little prognostic value.
8:29 am edt 

Publication Date for Out of Balance
My publisher tells me that the publication date for Out of Balance will be June 8, 2005.  By that date (in theory at least) the book should be available through the iUniverse web site.  Between two and six weeks thereafter it will come available through Amazon and Barnes & Noble
Next week, on Thursday May 12th, I'll be in a panel discussion on tort reform in Georgia with  Deborah Winegard (Medical Ass'n of Georgia), Bill Clark (Georgia Trial Lawyers Ass'n) and Allison Wall (Georgia Watch).  Jonathan Ringel from the Fulton County Daily Report will be the moderators. 
I'm looking forward to a lively debate.  If you'd like to attend, please  contact the folks at Kilpatrick Stockton to rsvp.
6:50 am edt 

Wednesday, May 4, 2005

The Extremism of Brown's Critics
An excellent editorial in Investors Business Daily claims that it is the critics of Janice Rogers Brown who are the extremists:
Washington: Ever wonder just what it is about Janice Rogers Brown that prompted the Democrats to so fiercely oppose her nomination to the U.S. Court of Appeals? It's her radical position on the Constitution.
Or rather, it's her dedication to constitutional limits that has enraged the left. They don't want anyone on the bench who might get in the way of federal policies and programs that can't withstand constitutional scrutiny.
As I've argued before in this column, Brown's positions have been principled and conservative, trying to sustain historical Constitutional provisions against an onslaught that would replace those provisions with an ideology of convenience.  The ideology of convenience says: "If free speech stands in the way of political correctness in the workplace, abandon free speech.  If the Constitutional principle of 'standing' hinders the ability of plaintiffs to initiate class actions, by all means forget about standing."
Justice Brown thinks that history offers a better prospect from which to understand the Constitution that does the ideology of convenience.
IBD continues:
California Supreme Court Justice Brown says that same enlargement of Washington's power "inoculated the federal Constitution with a kind of underground collectivist mentality. The Constitution itself was transmuted into a significantly different document."
Tough words. No wonder Brown is getting rough treatment in the Senate and media.
She dares to utter what has become obvious to many — that when it comes to governing, collectivism, not constitutionalism, is often the guiding principle.
Nearly two hundred years ago, surveying the wreckage of the French Revolution, Edmund Burke argued that, by abandoning their historical sense of government and by replacing it with an abstract ideology built on the "Rights of Man", the French doomed their revolution to failure.  
The aggregated learnings of history had developed a working constitution that balanced the interests of parties and gave the state and its citizens an understanding of their rights, Burke held.  Abandoning historical understanding and building government on an abstract theory left both the state and the people vulnerable to the whims of ideology. 
Burke was proved right when the White Terror swept across France, leaving thousands dead at the guillotines.
Brown's warnings are woven from the same cloth as Burke's.
Brown warns that the left wants to replace our historical understanding of the Constitution with an interpretation that is sufficiently flexible to fit the ideology of the day, from collectivism to political correctness.  She warns that our historical Constitutional understanding is our protection from the guillotines.
IBM concludes:
Nowhere has Brown said she would base her legal opinions on her observations of these "perilous times." But the fact that she even notices them makes her unfit in the eyes of some.
In our view, Brown's courage to point out this nation's leftward slide is refreshing. And her religious beliefs clearly indicate she is part of the large core of American believers — not on some extreme fringe.
We have enough judges who are eager to look the other way as lawmakers expand government far beyond its constitutional limits.
Brown would be a welcome change from that.
7:46 am edt 

Tuesday, May 3, 2005

Mother Jones and American Prosperity
Ralph R. Reiland had a great piece in Pittsburgh Live on Monday:
"When I was in Alabama 13 years ago, they had no child labor law," wrote labor activist Mary Harris Jones, better known as Mother Jones, in 1908. "In Alabama 13 years ago, women ran four or five looms. Today, I find them running some 24 looms. This is the Democratic south, my friends -- this is a Democratic administration. This is what Mr. Bryan and Mr. Gompers want to uphold."
The "Gompers" that Ms. Jones judged to be insufficiently concerned about the subjugation of labor was Samuel Gompers, the 10-year-old who was taken out of school to become an apprentice shoemaker and then a cigar maker in the sweatshops of New York before becoming the first president of the American Federation of Labor.
"Mr. Bryan" was William Jennings Bryan, the Democrats' three-time candidate for president, in 1896, 1900 and 1908, and a three-time loser. Still, he was skilled at tossing around the anti-capitalist rhetoric, such as on Labor Day in Chicago in 1896 when he famously called for "putting rings in the noses of hogs," referring to how politicians should be treating people like John D. Rockefeller and Andrew Carnegie.
In the end, neither Gompers nor Bryan was anti-capitalist enough for Ms. Jones.
"I stand for the overthrow of the entire system that murders childhood," she explained, referring to child labor. "I stand for the day when this rotten structure will totter of its own vileness. I stand for the day when the baby will live in God's fair land, enjoy its air, its food, its pleasures, when every mother will caress it warmly."
Fortunately, the only Mother Jones we must endure these days is a tedious left-wing magazine.
Domestically, in the U.S., the history of the past 60 years has been one of continuing progress toward the goals of "domestic
tranquility" and "general welfare". 
As Reiland notes, the average American today is much better off than just a few decades ago, living in comparative luxury:
Fast-forward 100 years and the kids are at GapKids, not in the mines. Karl Marx got it wrong about the working class becoming inescapably poorer under capitalism. So much so that Mother Jones -- the magazine, not the activist -- is complaining in its March-April 2005 issue about America's increasing affluence:
"Since 1970, the size of the average new home has ballooned by 50 percent. Great rooms, Viking ranges, 10-acre lots -- can moats and turrets be far behind?"
And the more specific grievances: "In 1950, 1 in 100 homes had 2.5 baths or more. Today, 1 in 2 do." "One in 4 Americans want at least a 3-car garage." "Fourteen million households own 4 or more TVs."
What is truly astounding is the willful blindness required by some who continue in their belief that our society is less prosperous, or less fair, as a consequence of free market principles.
If, in the 1950s for instance, you held the belief that the free market was unfair, that the poor needed government intervention to survive and that economic prosperity could be hand only through proactive public intervention in the market, you probably considered yourself a liberal Democrat.
Within the past two decades, at least, the federal government has, generally speaking, lowered tax rates, decreased federal regulation of business, restricted welfare and encouraged the private ownership of capital.  The result has been an almost uninterrupted boom in prosperity. 
With this history as prologue, even Democrats are forced to favor market forces.  The difference between the moderate left and the moderate right, so far as macroeconomic issues are concerned, is one of degree. 
If the Mother Jones of 90 years ago complained of destitution and poverty, the Mother Jones of today complains of not enough destitution and too much affluence.  How else can the opponents of free market liberty sustain their view of the world?
6:26 am edt 

Monday, May 2, 2005

ATLA Makeover Not Over
When someone in Washington tells you "it isn't about the money," you can rest assured on one point.
It's about the money.
The Association of Trial Lawyers of America insists that its members' opposition to tort reform isn't based on protecting their billions of dollars in annual contingency fees. Now they've installed a new chief, veteran Washington public relations specialist John Haber, to promote that fallacy by putting a good face on what really amounts to unbridled greed.
Haber is being paid a cool half-million dollars to transform the image of America's personal injury bar--the equivalent of giving Ebenezer Scrooge an extreme makeover. Which leads one to ask, "Why do personal injury lawyers--who love to portray themselves as Robin Hood--suffer from an image problem?"
One answer would be because they overestimated what the American public would tolerate. Whether suing fast-food restaurants, flooding the media and the Internet with carnival barker ads promising easy money, or systematically targeting our health-care system, the plaintiffs' bar has proved repeatedly there's little it won't try if there's money to be made.
Judging from the tone of John Merchant's remarks, one gets the feeling that the ATLA's (perhaps too) well-publicized makeover isn't going so well. 
6:19 am edt 

Sunday, May 1, 2005

Dress Rehearsal
According to GWU law professor Jeffrey Rosen, the current Senatorial impasse over judicial confirmations is only a dress rehearsal for the conflict to come when Chief Justice Rehnquists leaves the Court:
He writes:
It feels like Armageddon is just around the corner. The Republican threat to eliminate the filibuster rule in judicial confirmations has led both parties to cautiously assess what the political landscape would look like if the so-called nuclear option were used.
But for many here, this political brawl is only a dress rehearsal for the coming battle over a replacement for Chief Justice William Rehnquist, whose recent illness has led to the expectation that he will retire before the end of the Supreme Court term in June.
Indeed.  It is exactly because of this that the current conflict is so important.
If Senate Democrats can still or derail administration appointments for the District Courts and the Courts of Appeals they will likely also be able to scuttle appointments to the Supreme Court.
10:37 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.