Jonathan B. Wilson

Legal Resources
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Out of Balance
Legislation for Renewable Energy

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, November 28, 2005

Blackberry Patent Litigation Reaches Breaking Point
And all the world's blackberry devices may soon break as well unless the manufacturer can reach an agreement with a patent-holder who is seeking an injunction
1:51 pm est 

The Myth of the Underprivileged Soldier
The U.S. military is more representative of U.S. society than nearly any other occupational cross-section. 
Why then do critics of the U.S. military seem to resort so often to the argument that the U.S. all-volunteer force wouldn't have volunteered if it weren't so poor, so uneducated, and so otherwise without prospects?
Apart from being factually false, the argument suffers from the added defect of insulting those who volunteered. 
12:48 pm est 

Free Speech and Campaign Finance Laws
George Will connects campaign finance reform and free speech. 
12:32 pm est 

More Speculation on a McCain Candidacy
From Josh Gerstein
12:23 pm est 

Sunday, November 27, 2005

Tookie Williams
Michelle Malkin has an extensive catalog of links and background information on Stan "Tookie" Williams, the multiple murderer sentenced to die on December 13th. 
To his defenders, Williams is an example of a redeemed life.  Convicted of several murders and the founder of the Crips gang, he has authored a number of childrens' books (focused on avoiding gang involvement) and brokered a number of "gang truces" and similar events aimed at limiting gang violence. 
To others, Williams' redemption is staged.  He has never admitted his responsibility for the four murders for which he was convicted, he has never apologized to the family of his victims and has been involved in a number of prison altercations that are inconsistent with his nomination for a nobel peace price
California Governor Arnold Schwarzeneggar will hold a clemency hearing December 8th, so the story will remain in the news for the next several weeks. 
Other Links:
Debra Saunders on Williams
RedState backgrounder
2:03 pm est 

The UAW and GM
Michael Barone describes the impact of unions on the slow descent of GM:
Union-driven legacy costs have already forced many steel companies and airlines into bankruptcy, with pension obligations fobbed off on the Pension Benefit Guaranty Corp. The Big Three auto companies might as well do the same. At least there aren't that many big unionized private industries left to fall. Besides, taxpayers and politicians angry at costs imposed by unions--particularly in the public sector--can always change the rules and reduce unions' bargaining leverage. Just as the economic marketplace eventually reduced the power of the old industrial unions, the political marketplace could, in time, reduce the power of the "post-industrial" unions.
The attempt to protect workers from all risk has turned out to be very risky indeed, since in a dynamic economy large corporations are subject to competition from firms with lower costs. In the auto industry the result is significant pain for those who relied on the Big Three and the UAW; but the result is also a vastly faster growing economy and many more opportunities than provided by the European welfare states.
7:28 am est 

Saturday, November 26, 2005

2005 and 1939

The President of Iran predicts the destruction of Israel.  An Israeli draws parallels to 1939:

Now, Ahmadinejad is no Hitler, and 2005 is not 1939. The world has presumably learned the hard way that appeasing fanatic tyrants can only backfire. And Jews, who now have a state of their own, are not helpless. That's why it is mind-boggling to realize how easily such statements can still be made, and by no other than the president of a state that is a member of the United Nations -- an organization created in 1945 to ''maintain international peace and security,'' according to its charter.

There was a wave of protest all over the free world. Muslims, however, mostly kept their mouths shut, except for some mavens who rushed to assist the Iranian president, trying to soften his harsh message. ''He is just talking,'' they explained. ''He doesn't really mean it.'' Yet a weak later, Ahmadinejad not only repeated his threat, but even launched a big rally under the slogan: ``The world without Israel.''

7:53 am est 

The John McCain Charm Offensive
From placating the minutemen in Arizona, to canoodling with Stephen Moore, the straight-talking Republican seems on a mission to make friends. 
Even Moore seems won over:
While I disagree vehemently with him on many policy issues, it is thrilling to sit in his presence. He is a genuine American hero and patriot in an age when heroism and patriotism have gone out of style.
7:44 am est 

Spitzer Democrats
Chris Smith asks to what kind of Democrats would Eliot Spitzer appeal as governor? 
Given Spitzer's uncannily repetitive references to Teddy Roosevelt, national Democrats should be asking themselves the same thing. 
7:37 am est 

Friday, November 25, 2005

Giving Thanks for Property Rights
How the Pilgrims discovered the merits of private ownership
4:34 pm est 

Spielberg Takes on 1972 Olympics
Steven Spielberg's latest film, Munich, takes on the kidnapping of Israeli athletes at the 1972 Olympics and Israel's commando response. 
He's on dangerous ground, of course, as it will be impossible to avoid comparing the Palestinian/Israeli conflict as it stood in 1972 with current events (whatever they may be in late December when the film is released).  Moreover, it seems that any reference to Israel in the movies inevitably draws criticism from someone.
Mel Gibson's Passion, a story of the crucifixion of Christ that was intended by its producer to reflect as accurately as possible the Bible's account, was criticized by many as depicting Jews too negatively.
Spielberg has approached this sensitive subject before, most notably in Schindler's List and to a lesser extent in Saving Private Ryan.  But Munich will force viewers to confront notions of violence and retribution in ways that modern sensibilities may find unfamiliar.
American culture in 2005 is very quick to ascribe all conflict to misunderstanding and to credit all violence to poverty and inequity.
The story of Israel's violent response to the kidnapping of its athletes cannot be told its this context.  The story will show violence born of anger, jealousy, ideology and revenge.  How audiences react will say as much about their culture as the film itself. 
7:40 am est 

No Lawsuits at First Thanksgiving
How the Pilgrims gave thanks without litigation
7:17 am est 

Thursday, November 24, 2005

Happy Birthday, William F. Buckley
George Will gives thanks for the conservative writer and icon.
7:38 am est 

That Most Distinctively American Holiday
Christopher Hitchens reflects on Thanksgiving:
Concerning Thanksgiving, that most distinctive and unique of all American holidays, there need be no resentment and no recrimination. Likewise, there need be no wearisome present-giving, no order of divine service, and no obligation to the dead. This holiday is like a free gift, or even (profane though the concept may be to some readers) a free lunch--and a very big and handsome one at that. This is the festival on which one hears that distinct and generous American voice: the one that says "why not?" Family values are certainly involved, but even those with no family will still be invited, or will invite. The doors are not exactly left open as for a Passover Seder, yet who would not be ashamed to think of a neighbor who was excluded or forgotten on such a national day?
7:32 am est 

Wednesday, November 23, 2005

Stossel on Loser-Pays
ABC News' John Stossel endorses loser-pays as a solution for excessive lawsuits. 
1:53 pm est 

DOJ Drops Arthur Andersen Prosecution
Approximately six months after it was spanked by the U.S. Supreme Court, overturning the conviction of Arthur Andersen, the Department of Justice is announcing today that it will drop any further attempt to pursue criminal charges against the defunct accounting firm.
After the breathless accusations and hastily-concocted legislation, law makers and prosecutors can now see more clearly the distinction between politically unpopular professional associations and real crime.
Unfortunately this comes as little solace to the thousands of partners and employees of Arthur Andersen who had nothing to do with Enron or any of the other accounting scandals of several years ago.  Their equity in the firm (in the case of partners) and their jobs and resumes (in the case of employees) were destroyed by a government prosecution that proved unwarranted.
9:41 am est 

The Alito Smear is On

From the San Diego Union-Tribune:

"[Alito's opinion in Doe v. Groody] is a narrow, technical, thoughtful opinion. Repulsively enough, however, the partisan left is using Doe v. Groody not only to call Alito a fascist but to suggest he is a "pervert" and a "degenerate," to quote some of the many slurs on, the popular and influential political Web site. This is depraved.

In the war over Alito, truth was the first casualty. But common decency wasn't far behind. 

* * *  

The use of vile dishonesty to try to gin up support for a filibuster shouldn't just upset Alito supporters. It should appall anyone with a conscience.

7:49 am est 

Tuesday, November 22, 2005

Employer Liable for Terrorism
From the annals of expanding employer liability . . . this story, from Rod Satterwhite, of an employer who was sued by an employee who was allegedly abducted and almost killed by terrorists in the Philippines (where the employer had sent the employee for job purposes). 
The employee, upon returning to the U.S., promptly sued the employer, claiming that his injuries should be the employer's responsibility but that his claim should not be barred by the Workers Comp bar.  
The trial court granted summary judgment to the employer on the Workers Comp issue, but on the appeal in Ali Kahn v. Parsons Global Services, Ltd., D.C. Cir., No 04-7162 (Nov. 15, 2005), the D.C. Court of Appeals reversed.
Satterwhite writes that the employee's "plight evokes sympathy" and that's certainly true, but I'm somewhat more bullish on the employer's defense than Rod.  If the employer lacked the ability "to predict or control" the terrorists who abducted and injured the employee, why should the employer have any liability for the employee's injuries? 
The Workers Compensation laws reflect a careful balance between the employer's ability to spread risk across its employees through insurance and the employer's need to minimize the cost of litigating employee claims.  The legislatures have provided employer's a "safe harbor" from liability for participating in the no-fault insurance regime that guarantees each injured employee compensation for actual damages and loss of work.
Either the employee's injuries were suffered outside the workplace and outside the scope of employment (in which case the employer should have no liability) or the injuries were suffered within the scope of employment, in which case the Workers Compensation bar should apply.
(Updated 2:46 pm to add citation and link).
7:38 am est 

Monday, November 21, 2005

U.N. Internet Grab Silenced . . . For Now
Pete DuPont gives us an update on the World Summit on the Information Society and warns that this issue is not yet over.  
Update:  Even the Washington Post gets this one right.
10:25 am est 

Blawg Review #33
Available today through Overlawyered
9:00 am est 

Sunday, November 20, 2005

The Alito Memo
The Washington Post suggests that Judge Alito's 1985 memo, written as part of a job application for the Ed Meese Justice Department, should be a proper subject of questioning at his confirmation hearings. 
There's relevance and then there's materiality.
While it may be relevant to ask Judge Alito about what he wrote in 1985, it's hard to imagine that would be material to an honest Senator's decision to confirm or refuse the nomination.  With more than 15 years on the bench, Judge Alito has written volumes of legal decisions that should give Senators more than enough context in which to examine the nominee's judicial skills and temperament. 
While a 20-year-old job application might have some technical relevance, it should be far less important that some newspaper editorials have suggested.
11:00 am est 

More on Possible Milberg Weiss Indictment
It seems that a key player in a 1995 lawsuit filed by Lerach's former firm has been given immunity, according to the Recorder.  The article also provides illuminating insights into had decisions were made in the Milberg Weiss firm.  (Via Overlawyered). 
10:51 am est 

Caps on Punitive Damages Deter Long-Shot Lawsuits
PointofLaw has a great example of this effect, taken from the annals of post-Katrina litigation. 
10:46 am est 

Friday, November 18, 2005

Supreme Court Focus on Attorneys Fees
The focus on the ability to collect attorneys' fees in cases litigating partially in federal court but later remanded to state court helps to highlight a key issue in the debate over litigation reform. 
Plaintiffs currently enjoy a substantial advantage in many cases where prevailing law allows plaintiffs to recover their attorneys' fees if they win.   California has over two hundred one-way fee-shifting statutes and there are dozens of examples in the federal law.
There are very few situations, however, where a defendant can hope to recover its fees.  The result is out of balance, effectively giving plaintiffs an incentive to file suit in the hope that their potential recovery of attorneys' fees will give the defendant an additional incentive to settle. 
While this is not an issue that the Supreme Court can settle, one hopes that the debate draws enough attention to the role of attorneys fees in generating and prolonging litigation so that Congress and the state legislatures can adopt reforms.
8:51 am est 

Impeachment Trial Baloons
John Kerry is floating a trial baloon on preparing articles of impeachment against the President on the decision to go to war in Iraq. 
8:40 am est 

Democratic Amnesia
Have Democrats forgotten that they first proposed regime-change in Iraq?
8:38 am est 

Thursday, November 17, 2005

ABA President Demands Rights for Enemy Combatants

If you needed any more evidence that the American Bar Association was a political lobby -- as opposed to a professional association of attorneys -- it came last week in a letter e-mailed by ABA President Michael Greco to ABA members.

The bulk of the letter read:

The U.S. Senate last week adopted with no hearings and with little debate Senator Lindsey Graham's proposal to eliminate habeas corpus rights for Guantanamo detainees, denying them access to federal courts. The American Bar Association urges the senators to reconsider and defeat that enormous change to our fundamental legal system.

Throughout our nation's history, starting with the defense by lawyer, later president, John Adams of Massachusetts, of the British soldiers who fired on patriots in the Boston Massacre, it has been our commitment to basic principles of justice, even for the most unpopular among us, that has allowed us to maintain the high moral ground in the world, the most strategically important territory for us to occupy as we struggle with the enemies of freedom.

Our influence in the world is directly affected by our actions with respect to those we detain. The prisoners in Guantanamo have been held there, largely incommunicado, for four years. That fact alone offends our heritage of due process and fairness. The writ of habeas corpus was developed precisely to prevent the prolonged detention of individuals without charge, by allowing those held to petition the federal courts. To eliminate the right of habeas corpus would be shocking to our nation.

A few thoughts spring to mind.

First, Congress adopted the Sarbanes-Oxley Act with little debate as well but I don't seem to remember the ABA lobbying for its repeal.

Second, when John Adams defended the British soldiers who had fired on a crowd of rioting colonists in the years preceding the Revolutionary War, he was defending uniformed soldiers who fought under the British flag in a territory that, at the time, was a British colony.  Our ancestors later fought to separate themselves from England but, at the time, English colonial law was the law of the land.

The enemy combatants detained at Guantanamo, however, in most cases, fight under no flag, for no recognized state, under no color of law and outside the protections of the international law of armed conflicts. 

Prisoners at Guantanamo receive medical care, regular meals, Red Cross visits and access to counsel.  The conditions at Guantanamo are better than:

* the conditions afforded by the Union to Confederate soldiers during the U.S. Civil War (as well as those afforded Union soldiers by the Confederacy) -- President Lincoln suspended writs of habeas corpus for much of the war;

* the conditions afforded by the British to American colonial combatants during the Revolutionary War (captured colonists were often summarily executed); and

* the conditions prevailing in in the jails of many countries throughout the world today (which often lack medical care, refuse access to counsel or due process and refuse access to the Red Cross). 

Those opposed to the Bush administration might want to use the U.S. policy on enemy combatants as a political tool, but there is nothing in the U.S.'s policy that is inconsistent with America's history in treating armed combatants.

7:52 am est 

Glimmers of Light Through the Big Lie
The "BUSH LIED" argument is becoming tiresome.  Debate whether going to war in Iraq was right or not, but don't try to tell me that Bush snookered the public, the Democrats and Tony Blair into believing that Saddam had WMD when Bush knew better.
As Michael Barone argues:
The Democrats who are peddling the Big Lie of "Bush lied" are doing so either (a) deliberately to injure the cause of the United States and of freedom in the world or, as I think, (b) with reckless disregard of whether they injure the cause of the United States and of freedom in the world. What they are doing may suit their political needs, but it hurts our country.
Even Mr. Straight Talk Himself, John McCain, says:
But I want to say I think it's a lie to say that the president lied to the American people [boldface added]. I sat on the Robb-Silberman commission. I saw many, many analysts that came before that committee. I asked every one of them–I said, `Did–were you ever pressured politically or any other way to change your analysis of the situation as you saw [it]?' Every one of them said no. Now was there a colossal intelligence failure? Of course, there was. Is there still a lot that needs to be done to improve that? Are we winning the war on terror? I think it depends on your parameters. But to assert that the president intentionally lied to the American people is just wrong."
But you don't have to take my word for it.  Check out the video clip available here to hear Madelein Albright, Bill Clinton, Sandy Berger, Nancy Pelosi aand other Democratic leaders tell us (between 1998 and 2002) that there was "no question" that Saddam possessed WMD and would use those weapons if he were not taken out of power.
7:21 am est 

Tuesday, November 15, 2005

South Dakota Judicial Accountability Movement
Mainstream media outlets (ABC, Seattle P.I.) are reporting today on a group in South Dakota pushing for a ballot referendum that would strip South Dakota judges of their immunity from suit for actions taken in their capacity as judges.
The group, South Dakota Judicial Accountability, says little about itself on its website and does not disclose its backers apart from Bill Stegmeier, the small business owner who founded the organization.  The group's website decries "judicial activism" but does not specify the particular harms they hope to remedy by means of their "Judicial Accountability Initiative Law".
The J.A.I.L. Amendment, among other things, would create a "Special Grand Jury" to judge both "issues of law and fact" in complaints against South Dakota judges.  The Special Grand Jury would have the power to remove judges from office and to refer judges for criminal prosection. 
The J.A.I.L. Amendment purports to strip all South Dakota judges of any claim to immunity for civil suits brought against them (see paragraph 2, "no immunity shall extend to any judge of this state") but a later provision (see paragraph 15) purports to empwer the Special Grand Jury to determine, "whether or not immunity shall apply as a defense to any civil action that may thereafter be pursued against the judge."
Importantly, the J.A.I.L. Amendment suggests that South Datkota judges would have both civil and criminal liability for the "deliberate disregard of material facts" as well as "blocking a lawful conclusion of a case."  Presumably, any judicial decision (granting or denying a motion for summary judgment, for example) might qualify.
While the motives of this citizens' group may have the sympathies of many who read this column, the J.A.I.L. Amendment is one of the worst reform ideas ever.
Setting aside the procedural problems with the J.A.I.L. Amendment (which are legion) the concept of judicial immunity is fundamental to judicial independence which, in turn, is indispensible to an effective judiciary.
If any litigant could sue the judge presiding in his case for the "deliberate disregard of material facts" (J.A.I.L. Amendment, paragraph 2) then every litigant in every case would sue the presiding judge as soon as the judge denied the litigant's summary judgment motion. 
If judges were personally liable for errors of law (note that the J.A.I.L. Amendment purports to prohibit the state treasury for paying the attorneys' fees of judges who must defend themselves) then no individual could ever afford to be a judge.
The appellate courts, for better and worse, must be the sole recourse of litigants to hold judges accountable to the law in routine matters.  (I exclude those rare and notorious cases of judicial misconduct that bring into play judicial misconduct comissions (on the state level) and impeachment for federal judges). 
If the appellate courts are ineffective, the only remedy must be to improve them.  If trial judges are ineffective, reformers should look at ways to elevate better judges.  If South Dakota determines to create an independent body to judge the judges, the outcome will be endless litigation -- not the end of excessive litigation.
8:06 am est 

Welcoming ATRA To Atlanta
The American Tort Reform Association is meeting this week in Atlanta and I'm looking forward to speaking to the group this afternoon on the reform ideas in Out of Balance. 
7:34 am est 

Monday, November 14, 2005

Bogus Ethics Charges Against Alito
As this column says it, Judge Alito must be sailing towards confirmation if his detractors are becoming this desparate. 
7:35 am est 

Sunday, November 13, 2005

NARAL Smears Alito
It should come as no surprise, but Kate Michelman, the former Chair of NARAL, has smeared Judge Alito on the pages of the L.A. Times, claiming that "this time, it's personal."
Her argument, is that Judge Alito, because of his opinion on behalf of the Third Circuit in Planned Parent v. Casey, proves him to be the kind of judge who is "willing to give politicians such unthinking deference that they do not even attempt to ascertain how real laws affect real people." 
And by "real people," Michelman means herself, telling us all about her own experience with an unwanted pregnancy, an estranged husband, and a decision to abort her pregnancy, leading up to an "invasive and humilitating interrogation" by her doctors in a Pennsylvania hospital in which she was required to notify her husband of the abortion and obtain his consent.  He gave it.
Michelman's point that this was a "wrenching personal decision" is fair enough.  One would expect that it would be.  But to what end does this personal story take us?
Michelman, of course, makes no attempt to explain how the connection between "real laws" and "real people" have anything to do with constitutional jurisprudence.  Her point is the kind that non-lawyers often make: believing that constitutional judicial decision-making involves some kind of moralistic balancing or an attempt to "do the right thing."
Whatever one might think of the morality of abortion, it's constitutionality is an entirely separate matter.  Morality is not constitutionality (and neither is constitutionality moral). 
The majority of Americans are deeply torn on the subject of abortion.  A Gallup poll in 2003 found that 42% of respondents said that abortion should remain legal in some circumstances, while 23% would have banned the practice in all circumstances and 19% would permit abortion without any limitations at all.  Despite these conclusions on the legality of abortion, 53% said that abortion was "morally wrong" while only 37% said it was "morally acceptable."
These results suggest a public that favors maintain the legality of abortion in some circumstances but that remains skeptical as to the morality of the practice. 
If that is indeed the sentiments of a majority of Americans, why is Michelman and her compatriots at NARAL so shocked and offended when state legislatures attempt to restrict the practice of abortion?
The constitutional question, of course, is a separate issue.  If Roe v. Wade provided women with a constitutional right to obtain an abortion in certain circumstances (the Roe decision, of course, created a sliding scale of restrictions, permitting fewer restrictions in the first trimester of a pregnancy and more restrictions as the second and third trimesters) it remains the province of the courts to draw distinctions between that constitutional right and the and the right of the legislatures to restrict the practice. 
As Charles Krauthammer explained well in a recent column, Judge Alito's opinion in Casey was an attempt to reconcile inconsistent precedent's established by the Supreme Court.  One of those opinions, authored by Justice Sandra Day O'Connor no less, held that a law that required minors to obtain the consent of their parents was not a constitutionally "undue burden" on the legal exercise of the right to have an abortion.
Judge Alito reasoned that if a minor, who was subject to the economic and other persuasive impacts of her parents, could constitutionally be required to obtain her parents' consent, a law that required a woman to notify (but not obtain the consent of) her husband must be less burdensome and, hence, constitutionally permissible.
For reasons that are not terribly clearto me, the Supreme Court disagreed with Judge Alito's reasoning, struck down the spousal notification law, and added yet another lawyer of confusing jurisprudence to this already complex topic.  Given the complexity of appellate court reasoning on the subject it would not be surprising to see that decision revisted again in the coming years. 
Which brings us back to Michelman.  The conclusion of her analysis of Alito's Casey decision was:
That is precisely the problem with government regulating private lives. Politicians do not know how laws will affect each individualized case. Courtrooms are a citizen's last refuge from unjust laws. When judges do not see those in their courtrooms as whole people and diverse individuals, that final constitutional safeguard is eviscerated.
What utter nonsense.  It is a constitutional safegard, that judges must "see those in their court rooms as whole people and diverse individuals"?
Alito's reasoning in Casey had nothing to do with the "wholeness" or the "diversity" of the parties to that case.  Alito's reasoning was solely concerned with the legal precedents and the way in which those precedents shaped the boundries of the constitutional right to an abortion established in Roe
Michelman's piece is objectionable because it was a conclusion in search of a rationale.  Michelman wanted to oppose Alito because, in her words, he is "conservative".  Therefore, she concluded that his reasoning in Casey (which reached a result she disapproved) was a constitutional "evisceration." 
Michelman's writing does a disservice to the public, which struggles in the vapid sea of media coverage, to understand the role of the judiciary and the nature of constitutional reasoning.  Reaching a welcome conclusion is not a proper aim of an appellate judge.  The appellate judges, properly, should be unconcerned with the popularity of the outcomes their decisions may force.
Rather, well-crafted constitutional decision-making respects precedent, the law, and the Constitution.  It does not create new rights but it jealously guards constitutional rights. 
Alito's Casey decision, while it was struck down by the Supreme Court, was a proper exercise in judicial function.  Michelman's screed misunderstands what judges do and adds nothing to the public's understanding of why judges like Alito are needed on the Supreme Court. 
4:13 pm est 

Saturday, November 12, 2005

President Bush Fights Back
The President has finally taken the gloves off in responding to critics regarding the pre-war use of intelligence.  While it's perfectly legitimate to question the way in which the war was fought, and even to question whether going to war was the right decision, the "BUSH LIED" argument is simply illegitimate.
Congress approved the war in Iraq with access to the same intelligence that the White House had.  Not only was the U.S. convinced, but our decision was joined by a number of friendly governments with their own intelligence assessments and their own decision processes.
We were genuinely surprised not to have found the WMD that we all thought were there.  But, news flash, war often brings surprises.
The decision to go to war is inherently risky, not only as a function of predicting the outcome, but as a function of predicting the facts in play before war begins.  Hitler bluffed his way into Poland in 1939 with weapons that, in many instances, lacked ammunition.  Clausewitz's "fog of war" obscures both men, machines and motives.  An effective leader makes decisions decisively, using the best information available, with a view towards minimizing risk.
If Bush had decided against confronting Saddam -- even acknowledging now that Saddam did not have WMD stockpiles -- Saddam might still have developed those stockpiles over time.  Bush and the U.S. allies correctly judged that Saddam had both the motive and the means to acquire WMD, they were only wrong in judging that he had already done so.  By confronting Saddam when we did, we eliminated the greater risk that Saddam would have completed his quest to acquire WMD.
Bush spoke well on Friday and he should speak like this more often:
While it's perfectly legitimate to criticize my decision or the conduct of the war, it is deeply irresponsible to rewrite the history of how that war began. (Applause.) Some Democrats and anti-war critics are now claiming we manipulated the intelligence and misled the American people about why we went to war. These critics are fully aware that a bipartisan Senate investigation found no evidence of political pressure to change the intelligence community's judgments related to Iraq's weapons programs.
They also know that intelligence agencies from around the world agreed with our assessment of Saddam Hussein. They know the United Nations passed more than a dozen resolutions citing his development and possession of weapons of mass destruction. And many of these critics supported my opponent during the last election, who explained his position to support the resolution in the Congress this way: "When I vote to give the President of the United States the authority to use force, if necessary, to disarm Saddam Hussein, it is because I believe that a deadly arsenal of weapons of mass destruction in his hands is a threat, and a grave threat, to our security." That's why more than a hundred Democrats in the House and the Senate — who had access to the same intelligence — voted to support removing Saddam Hussein from power. (Applause.)
The stakes in the global war on terror are too high, and the national interest is too important, for politicians to throw out false charges. (Applause.) These baseless attacks send the wrong signal to our troops and to an enemy that is questioning America's will. As our troops fight a ruthless enemy determined to destroy our way of life, they deserve to know that their elected leaders who voted to send them to war continue to stand behind them. (Applause.) Our troops deserve to know that this support will remain firm when the going gets tough. (Applause.)
7:22 am est 

More than One Internet?
Brian Carney speculates on the future of the Internet with more that one root (the possible outcome of the U.N.'s attempt to take over Internet governance). 
7:10 am est 

Wednesday, November 9, 2005

Interpreting the 2006 Elections
While there were few bright spots in yesterday's elections for Republicans, Michael Barone and John McIntyre both draw the correct conclusion: the 2005 elections do not necessarily portend ill for Republicans in 2006.
As they both noted, yesterday's results in Virginia, New Jersey and New York City are nearly mirrors of the results in 2001. 
In 2001 a Democrat won the Virginia governor's seat 52-47%.  In 2001 we saw the same result, 52-46%.
In 2001 a Democrat won the governor's seat in New Jersey 56-42%.  Four years later, the same result, 53-44%.
In the New York mayoral race, Republican Michael Bloomberg increased his margin of victory from 50-47% in 2001 to 59-39% in 2005.
Republicans have a lot of ground to make up with Bush's approval rating at an all-time low below 40%, but the results in 2005 do not presage a realignment in the Democrats' favor.  On the contrary, they show how little has changed in the underlying preference of voters in the past four years.
1:26 pm est 

California Proposition 79 Defeated
In one of the few brights spots in yesterday's election, California voters defeated Proposition 79, a measure that would have empowered private plaintiffs' lawyers to sue drug companies for charging "unconscionable" prices. 
The measure had been hounded by some of the legal blogs and even the LA Times editorial board had come out against it, noting that the concept of "private attorneys general" had been rejected by California voters through their adoption of Proposition 64 just a few years earlier.
7:50 am est 

Criminal Prosecution of Fake Silicosis Claims?
Professor Lester Brickman, as quoted at PointOfLaw, raises the intriguing question of whether prosecuters may try to raise criminal charges against some of the plaintiffs' lawyers who were involved in generating fake silicosis claims. 
7:43 am est 

Tuesday, November 8, 2005

Multiculturalism and the French Intifada
Mark Steyn writes:
"Multiculturalism means that the worst attributes of Muslim culture - the subjugation of women - combine with the worst attributes of Western culture - licence and self-gratification. Tattooed, pierced Pakistani skinhead gangs swaggering down the streets of northern England areas are as much a product of multiculturalism as the turban-wearing Sikh Mountie in the vice-regal escort." Islamofascism itself is what it says: a fusion of Islamic identity with old-school European totalitarianism. But, whether in turbans or gangsta threads, just as Communism was in its day, so Islam is today's ideology of choice for the world's disaffected.
1:45 pm est 

Sunday, November 6, 2005

French Police Find Bomb-Making Factory in Paris
According to AP:
Police found a gasoline bomb-making factory in a southern suburb of the city, with more than 100 bottles, gallons of fuel and hoods for hiding rioters' faces, a senior Justice Ministry official said Sunday.
Six youths, all aged under 18, were arrested in the raid Saturday night on a building in Evry south of Paris where the gasoline bombs were being put together, Jean-Marie Huet, the ministry's director of criminal affairs and pardons, told The Associated Press.
2:14 pm est 

The Second Battle of Poitiers
Mark Steyn compares the last two weeks of rioting in France to the Battle of Poitiers in 732 AD.  That battle, he notes, was the high-water mark of of the Islamic conquest of Western Europe.  After the Islamic armies were repulsed in that battle, the Islamic empire in Europe began a pullback that last nearly one thousand years.
After several years of scoffing at the Bush doctrine and pooh-poohing the idea that Democracy in the Middle East might be a good idea, the French have a civil war on their hands.
Unlike civil wars at other times and in other nations, however, decades of cultural relativism has sapped the French leadership of their ability to distinguish between right and wrong, good and bad, and "youths" and the advancing armies of Islamo-fascism.
As rioters in France set fire to cars and buildings, derail trains and generally try to destroy as much of the infrastructure of civilization as they can find, the French leadership of Chirac and de Villepin claim the problem if social inequality and the lack of economic opportunity in the suburbs.  In other words, if only the rioters had jobs they wouldn't act is if they were try to spark a revolution. 
As news reports have revealed in the past few days, this is more than a few disaffected "youths" upset over unemployment.  The rioters shout "Allahou Akbar!" when they set fire to cars and throw molotov cocktails.  Police in France have report that they have been fired upon in clashes this week.  The rioters aren't trying to sway public opinion and have issued no statements calling for economic reforms.  To the extent they have spoken at all, they have claimed they are out to overthrow civilization.   
Even more troubling are some suggestions that the conflict in France has spread throughout that country and even into other countries in Western Europe, like Denmark
The conflict in France and Denmark will be only the beginning if leaders in those countries are unable to identify their enemies and call them what they are.  The rioters are not "youths", in the fashion of some college sit-in, they are the vanguards of Islamic fascism who are testing the reactions of Western governments.  If they sense weakness or a reluctance to engage, they will continue to exploit the chaos. 
Bin Laden and his deputies have told us, in their own hand, that their aim is to overthrow secular and non-Islamic governments and to establish a caliphate in the Middle East and, where possible, in other regions as well. 
When we see evidence of that plan unfolding, as we are seeing in France right now, why do some hesitate to attribute those events to the broader movement of Islamic fascism? 
11:17 am est 

Saturday, November 5, 2005

World Government is Here to Help
U.N. Secretary General, Kofi Annan, writing in today's Washington Post, tries to reassure us that the U.N.'s plan to take over Internet governance is no cause for alarm. 
His protests ring hollow, however.  An organization that includes a human rights body chaired by Libya simply lacks credibility. 
The Internet is just too important to the U.S. economy and the world economy to be handed over to an organization like the United Nations, which can count precisely zero economic successes to its credit.
According to Forrester research, online retail sales in 2004 amounted to $145 billion, or 7% of all U.S. retail sales.  That number is predicted to mushroom to $331 billion annually, or 13% of U.S. retail sales in just five years.
Would you be willing to trust 13% of the U.S. retail economy to the organization that brought us Kosovo, Darfur and the Oil-for-Food scandal? 
4:41 pm est 

Thursday, November 3, 2005

You'd Better Pay, I Know the Judge
Ted Frank has some interesting insights into the case of Mikal Watts, a plaintiffs' lawyer who specializes in suing Ford over vehicle rollovers.  It seems that Mr. Watts has made a point in several demand letters of publicizing his close relationship with the judges presiding over his cases.
One such letter reportedly reads:
"I believe it is wise for the individuals ... who will evaluate this case to remember, 'Toto, we aren't in Kansas anymore.' Politely put, South Texas venue by itself makes this a very dangerous lawsuit. ...
"[The 13th Court of Appeals in Corpus Christi] is comprised of six justices, all of whom are good Democrats. The Chief Justice, Hon. Rogelio Valdez, was recently elected with our firm's heavy support, and is a man who believes in the sanctity of jury verdicts. ..."
So, in order to be a "good Democrat" you must believe in large jury verdicts?  What does it really say about "the sanctity of jury verdicts" that the presiding judge in Watts' case was "recently elected" with his "firm's heavy support?"
6:51 am est 

Roundtable Discussion on Michael Ovitz and Disney
Thanks to Steve Korn and the folks at GC South Magazine for hosting yesterday's roundtable discussion on the Disney case.
You'll find the transcript in next month's issue.  I won't steal any thunder from the magazine, but I think you'll find that the business judgment rule is alive and well. 
6:24 am est 

Wednesday, November 2, 2005

New Employment Law Blog
My friend and former college roomate, Rod Satterwhite, has launched his own blog at SuitsInTheWorkplace, to find space for his creative rantings on labor and employment law issues.  Good luck Rod!
10:30 am est 

A Pathetic Stunt
Stymied by the nomination of Samuel Alito to the Supreme Court and wishing to re-focus public attention on the Iraq war the Democratic leadership yesterday hijacked the Senate for two hours, using a parliamentary procedure to close the Senate to the public for a "closed session".
The stunt had no substantive value as the Senate conducted no business while in closed session.
Can you imagine the howls of indignation we would have heard in the mainstream media if Republican Senators had tried the same manuever during the Clinton administration? 
8:10 am est 

New Site Record
Welcoming the world: Monday set a new record at with more than 20,000 hits generating more than 3,000 unique visitors in one day.
8:06 am est 

Tuesday, November 1, 2005

It's Alito
And the blogosphere is jumping at the news:
Jonathan Adler: Alito isn't "pro-choice" or "pro-life" but "pro-law".
George Will:  "This is the debate the country has needed for decades."
John Podhoretz:  "this is going to be a phony war, waged up until the moment of real combat. Unless something really shocking happens, Alito will be confirmed."
Douglas Kmiec:  "Years ago, when we were Department of Justice lawyers together, we reflected on what brought us to Washington. Judge Alito and I were both drawn by President Ronald Reagan's pledge to work for family, work, neighborhood, peace and freedom. These timeless elements are safeguarded by law. Alito embraces each with diligence, intelligence and fair-mindedness."
NY Times Blog summary
8:55 am est 

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