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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 Web.com.com (NASDAQ: WWWW) and EasyLink
Services (NASDAQ: ESIC). He is also the founding chair of the Renewable Energy Committee of the American Bar Association's
Public Utility Section.
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Tuesday, January 31, 2006
Corretta Scott King Dead
The widow of civil rights leader Martin Luther King, Jr. was 78.
Washington State Expands Scope of Anti-Discrimination Law
Washington State has joined Oregon and California as the third state in the U.S. to ban discrimination on the basis of "sexual orientation."
The final version of the bill, which passed the House January 27th, defines "sexual orientation" as "heterosexuality, homosexuality, bisexuality,
and gender expression or identity." "Gender expression or identity" is defined as "having or being perceived as
having a gender identity, self-image, appearance, behavior, or expression, whether or not that gender identity, self-image,
appearance, behavior, or expression is different from that traditionally associated with the sex assigned to that person at
birth."
The breadth of these definitions seems likely to spur further discrimination claims.
Alito Confirmation
Seems to be inevitable today.
Saturday, January 28, 2006
Ribstein on Sarbox
Larry Ribstein has a great post on the "yawning gap" between theory and reality on the effectiveness of Sarbanes-Oxley. (Tip: Ted Frank).
People at Work
I've found an employment blawg with helpful guidance for in-house attorneys written by Chicago practitioner Charles A. Krugel. On a human-interest level, check out this nearly 100-year-old picture of his great-great grandfather at his butcher shop in Chicago.
Thursday, January 26, 2006
Gore in '08?
Could be. He's in Sundance, accepting adoring applause from supporters for his documentary on the environment.
Suing Plaintiffs' Lawyers for Fraud
Michael Krauss, writing at PointOfLaw, has a great piece on a suit brought by an aggrieved client in Colorado against his former (plaintiffs') attorney.
As he describes it, Richard E. Crowe sued Frankline D. Azar & Associates after hiring Azar to represent him in a
personal injury case. Crowe claims that his lawyer's television ads claim that the firm has the ability to get "full
value" for their clients' claims, but that Crowe was pressured into settling his case for less than its full value.
In a ruling on Monday, the Colorado Supreme Court ( opinion) held that attorneys can be liable under the Colorado Consumer Protection Act if "the attorney or law firm knowlingly engaged
in a deceptive trade practice . . . significantly impacting the public as actual or potential consumers of legal services"
and causing injury. ( Deniver Post; Jan. 25).
In the past, many state courts refused to hear consumer protection claims against attorneys on the grounds that the practice
of law was not a "commercial activity" within the scope of the consumer protection statute. Attorneys argued that their
obligations of professionalism made them different from other commercial actors.
Unfortunately, as the practice of law has become more commercial, especially with the growth of "complaint mills" that
generate lawsuits with little or no research into their merits before filing, the "professionalism" argument has grown thin.
If the legal profession ceases to take professionalism seriously, it should have no reason to exempt itself from the
other rules and standards that govern the marketplace, including consumer protection laws.
Wednesday, January 25, 2006
Shut up, They Explained
Brian Anderson's piece on the free-speech-chilling effects of McCain-Feingold and its possible implications for political bloggers is a must-read.
Canadian Conservative Roundup
Harper will bring Canada "back to the grown-ups' table" - David Frum
7:25 am est
Tuesday, January 24, 2006
Canada Shifts Rightward
Stephen Harper, leader of the Canadian Conservative Party, won election as Canada's Prime Minister yesterday, taking
that country's government to the conservative side of the spectrum for the first time in 13 years.
Harper is telegenic and, in the few speeches and interviews I've heard, an articulate spokesman for conservative principles.
Will his election presage a rightward shift in Canadian politics generally, or did Canadians simply tire of a liberal
government that had spent too many years in power?
It is relatively unlikely that Harper's election signals a real shift. Canadians, on the whole, like their socialized
medicine and tend to think of themselves at odds with their American neighbors. If Harper represents nothing more than
closer relations with the U.S., he is unlikely to gain traction for Canadian conservatives in the long run.
Harper's election does, however, hold out hope for a Candian realignment if Harper can bring his communication skills
to the Canadian people, allowing them to think about their society and their government from a conservative point of view,
much in the way that Ronal Reagan did in the U.S.
Monday, January 23, 2006
Blawg Review #41
The Blawg Review often begins with the host offering a few words about himself. While I’m still getting over the
overdose of flattery I received through Jim Copland’s generous introduction, I do have a few prejudices of which the reader should be aware.
I am the general counsel of a publicly-traded company in Atlanta where I have been in practice for about 15 years (the first 10 with large firms like Paul Hastings and King & Spalding). While I do retain an interest in the philosophy of jurisprudence and occasionally delve into both history and philosophy on my own blog, much of my blawging tends to focus on the practical impact of the law on business. (See, e.g.,
this January 2005 post on a lawsuit inspired by the “Fear Factor” television show and its relevance to tort reform.) Those practical considerations
prompted me to write a book in which I advocate caps on punitive damages and loser-pays through an offer of judgment rule as fruitful prescriptions for
reform.
While this Blawg Review will not have a theme as such, I thought it interesting to note the many different ways in which
legal blogs (or "blawgs") come into contact with society and the world. Through that paradigm, I have organized this
week's readings.
In the News
The recently-completed confirmation hearings of Judge Alito are much in the news and continue to be the source of comment
in the blawg-o-sphere.
Matt Barr explores some of the deeper questions of jurisprudence while taking apart some of the arguments that were not made in the Alito hearings.
Matt is a lawyer who is now practicing business but obviously retains a great love for the philosophy of law.
In Tort Reform
Walter’s fellow blogger at Overlawyered, Ted Frank, is covering the possibility of suits being filed against Viacom and Kellogs by parent activists over the Nikelodeon network’s use of
its cartoon characters in advertisements and on cereal boxes. Ted writes that the plaintiff parent doesn’t even
buy the sweetened cereals promoted by the cartoon characters, so the chief harm complained of is having to say “no” to her
children. (As the parents of a two-year-old my wife and I have to say “no” quite a lot. I had no idea we could
get paid for it). If these kinds of suits trouble you, check out AEI’s white paper on “harm-less lawsuits”.
From a different perspective, E.L. Eversman, writing at AutoMuse, is concerned that Illinois Supreme Court Justice Lloyd Karmeier's refusal to recuse himself from the panel overturning
the $1 billion Avery v. Statement Farm Mutual Insurance Co. award after accepting campaign contributions from State
Farm is a " black-eye for supporters of tort reform."
In other tort reform news, the couple who perpetrated last year’s “Wendy’s Finger-in-the-Chili” hoax each received lengthy prison sentences.
In the Law Schools
Villanova law professor James Maule picks up her theme, agreeing that the current format of law review articles is stilted and dull. Those in the academy are under
substantial pressure to publish through traditional law reviews: it is a path to tenure and often the only path to financial
advancement within the university. And yet there is much about the genre that is limiting.
He closes his thoughts by asking:
"Generations ago, someone had the courage and vision to write the first law review article. Will the current generation
of law faculty have the courage and vision to move legal scholarship into the twenty-first century?"
Professor Dan Markel, writing at PrawfsBlawg, asks " Whither the SSRN?". His argument is that the SSRN was originally intended to encourage "the early distribution of research
results by publishing submitted abstracts and by soliciting abstracts of top quality research papers around the world."
He bemoans that some law schools are using the SSRN as a tool for evaluating the work of young professors and that few pre-published
manuscripts on SSRN actually elicit helpful comments.
Professor Gordon Smith responded to Markel's post, noting that the easy access offered by SSRN allows non-lawyers (and non-academics) to reach his work.
Professor Stephen Bainbridge also reacted to Markel's post, arguing that, whatever its original purpose, the SSRN now serves a different, though still valuable purpose,
by "bypassing the delays inherent in submitting an article to journals and the subsequent editorial process." A law
professor who wants to distribute a piece before it has reached print can do so electronically through the SSRN.
Stanford Law Professor Lawrence Lessig has published a fascinating, multi-media presentation on the argument for The Google Book Search. This new Google book search service allows viewers to search the contents of entire books they haven't purchased. The service has obvious value for
users but raises a number of copyright concerns.
In the Realm of Intellectual Property
Stephen Nipper, writing on ReThink(IP) suggests a way of understanding trademarks in an " open-source" model. The open-source trademark sounds like a collective mark, but it is instructive to look at familiar ideas from new angles from time to time. On the Internet
Google has also made the news this week when the mainstream media reported that Google was alone among the five major search engines in resisting U.S. government
subpoenas for the identification of users based upon their use of Google's services.
Professor Solove argued in Google, Privacy and Business Records, that the "third party doctrine" in Fourth Amendment jurisprudence -- in combination with Internet technologies -- tends
to open the door to privacy far more widely than in the past. The third party doctrine claims that personal information
that is in the hands of a third party is not subject to a reasonable expectation of privacy. In the Internet world,
however, we all have substantial amounts of private data (credit card numbers, social security number, transaction data, search
results, e-mail) that are maintained in the hands of third parties (web merchants, banks, transaction processors, search engines,
ISPs, etc.)
Professor Geoffrey Manne went one step farther, suggesting that Google's refusal to comply with the subpoenas may be financially motivated, with Google perceiving that
consumers would prefer a service that would protect their privacy.
Alas for Google, its stock dropped about 10% over the past week on the news of its legal troubles.
John Walkenbach gives three cheers for Google, but humorously suggests that users who wish to participate more fully in the government's war on terrorism should start using the Patriot Search.
The Patriot Search works just like any other commercial search engine, except that the user's identity and search parameters
are immediately transmitted directly to the government for instant analysis.
In the Marketplace
Stephen Albainy-Jenei, writing at Patent Baristas, offers some extended thoughts on emerging FTC concerns involving patent licensing agreements between drug manufacturers.
He explains that "The FTC has filed a series of lawsuits challenging patent settlement agreements between major drugmakers and their generic
rivals. The agency contends that in some cases those settlements stifle competition because drugmakers are paying generics
to stay out of the market."
With popular focus on the risings cost of health care and the role of generic drugs, this is an issue that could attract
public attention.
J. Craig Williams, writing at May It Please the Court, notes that " parents cannot divorce their children." The case he cited involved a California trial court that approved a settlement between two divorcing parents
in which the two parents agreed to limit their child's ability to obtain support payments from the father. The California
Court of Appeals reversed the trial court's approval of the stipulated settlement on the grounds that the parents were prohibited,
as a matter of law, from limiting or cutting short their child's ability to obtain support.
In Practice
In the Dictionary
David Giacalone writes that the term “blawg” should be phased out and rendered obsolete. His argument is that the term is confusing to the public and tends to trivialize
the work done by lawyers on their websites.
Giacalone’s arguments were so provocative, that they sparked a riposte from our own dear Editor and a further rebuttal from Giacalone
In Memoriam
Missouri attorney George Lenard, writing at George’s Employment Blawg, has a touching tribute to the late Judge Theodore “Ted” McMillian. Lenard writes that the judge “grew up in a era of racism and then
broke the color barrier with a list of "firsts" - first African-American to become a state prosecutor in Missouri, first to
become a state judge and first to sit on the U.S. Court of Appeals here [in Missouri]“
In Compliance
In Law Schools
Law students contribute to the cause of online legal scholarship as well and the weekly carnival of student law blogs
is available this week here at Evan Schaeffer’s Legal Underground.
In Foreign Policy
While this might prove fertile ground for some wisecracks about “cheese-eating surrender monkeys” I will restrain myself,
thank the Editor for the privilege of hosting this week’s Blawg Review and get back to work.
Blawg Review has information about next week's host, and instructions how to get your blawg posts reviewed in upcoming issues.
Friday, January 20, 2006
25 Years of Reaganomics and Regulation through Litigation
Marking the 25th anniversary
of Ronald Reagan’s first inauguration, the Wall Street Journal is opining on the last two and one-half decades of Reaganomics: the view
that lower tax rates and reduced governmental regulation of business prompt greater investment, more jobs, higher productivity
and a concomitant improvement in public welfare.
The Journal concludes, rightly
I think, that history has vindicated Reaganomics. More than anything else, this
vindication is apparent from the topic’s absence from public debate.
Few serious spokespersons today
take the position (as many economists did in the early and middle 20th century) that strict regulation of the means
of production is necessary to keep corporations in check. The debate is largely
in the margins, whether pollution credits promote or hinder improvements in the environment, for example.
Politicians of both parties routinely
refer to the power of the free market as an organizing principle of our economy and of the need to avoid excessive regulation.
And yet the collectivist spirit
that motivated economics in the early 20th century (John Kenneth Galbraith and the New Deal, for example) has found
other forms of expression, most notably in our judicial system.
Populist arguments that once prompted
politicians to adopt rules and regulations are not re-tooled as tort claims and made in court before judges who, in varying
degrees, are immune to the political process.
Do you think that Corporation
X’s wage and benefit policies are unfair to workers? Don’t ask Congress to do
anything. Refashion your argument as a class action on behalf of the workers.
If you think a particular
industry harms the environment, don’t expect the legislature to change the laws that permit that harm. Instead, file suit on behalf of the class of persons who are offended.
While Reaganomics may have
prevailed in two of the three branches of government, it has not yet carried the day in the judiciary where courts have been
all too willing to accommodate the creative claims of various activist groups who have tried to regulate our economy through
the courts.
Regulation through litigation, in some ways, is even more pernicious than outright regulation through legislation. The legislative process allows competing interests to make their points in public. The judicial process, while public, is far less responsive to the public. The legislative process admits multiple points of view and takes place over time, allowing experts and
advocates many opportunities to persuade legislators and the public. The judicial
process is technical and rules-driven. Judicial decisions made on the basis of
factual judgments are often immune from review, susceptible of being overturned only when appellate courts can find technical
or legal infirmities in their reasoning. By some accounts, the burden of excessive litigation in the U.S.
imposes an indirect “tax” of nearly $300 billion per year on our economy.
President Reagan convinced America
that high taxes and excessive regulation were not only unfair, but ineffective. History
has demonstrated he was right. What will it take to make that same point to those
who now try to regulate through litigation?
Thursday, January 19, 2006
SOX Whistleblower Protections Do Not Extend Overseas
In a case of first impression, the First Circuit Court of Appeals in Carnero v. Boston Scientific has held that the whistleblower protection provisions of Section 806 of the Sarbanes-Oxley Act do not apply to non-resident
employees of foreign subsidiaries of U.S. companies.
While this holding is not yet settled law, if it is sustained over time and followed by other courts it could alleviate
some of the burden felt by multinational corporations in establishing global whistleblower hotlines as part of their Sarbanes-Oxley
compliance efforts.
Litigation Bound in Wisconsin
Wisconsin was once known as a relatively fair jurisdiction for business defendants but the combination of a liberal Democratic
governor and his willingness to veto reform legislation and put pro-plaintiff judges on the bench has transformed the state's courts for the worse.
Wednesday, January 18, 2006
Hillary's Plantation
You might have thought that Pat Robertson, Ray Nagin and Mahmoud Ahmadinejad had the early lock on the 2006 " most idiotic statement of the year award" but Hillary Clinton has never been one to hold back when recognition is within her reach.
Her recent claim that Congress is "run like a plantation" has already been diced, sliced and parsed by the blogosphere,
but it's still breathtakingly foolish.
Mike Goodwin's piece this morning notes that the "plantation" quote was not part of the Senator's prepared remarks and was made in response
to some negative questioning to the effect that Democrats in Congress had not stood up to Republicans.
As a prominent Democrat, I entirely expect Senator Clinton to bash Republicans, take credit for any successes and generally
position herself as a cure for all the world's ills. That's what politicians do and she should do no less.
But does calling the Congress a plantation really advance her own cause? It may have gotten cheers from the radical
left (who are largely disenchanted with Hillary anyway with her newfound penchant for moderation and triangulation) but does
it do anything to persuade the swing voters in the middle?
How could it? It's not only offensive but ridiculous to compare the pampered, well-paid elites who occupy Capitol
Hill with the millions of poor African souls who suffered slavery in the colonies and the U.S.
And does it really benefit New York's junior Senator to pander so obviously to her left wing? They know she doesn't
swing leftward on issues like Iraq. They know she left them stranded with her silence when Justice Roberts and
so-to-be Justice Alito had their confirmation hearings. The annual MLK Republican bash-a-thon has become such an expected
ritual that it must surely be discounted by the denizens of the left.
All in all, Hillary's recent plantation tour may have been good for a few laughs at her expense, but probably did little
to further her White House ambitions.
Blawg Review #41 Coming Monday
A quick reminder that I'll be hosting Blawg Review #41 this coming Monday.
The good folks at BlawgReview have cornered the market on legal blog carnivals and I'm looking forward to aiding and abetting their continued market
exploitation.
Tuesday, January 17, 2006
2006: The Year that God Was Angry
2006 is barely underway and we've already got a tight and spirited race for the "most idiotic statement of the year award."
You might have thought that Iranian President Ahmadinejad had it all sewn up with his claim that Europeans tried to complete the Holocaust by creating a Zionist state in the Middle East, where it would be surrounded
by hostile Islamic states who, naturally, would want to destroy it. (Ahmadinejad took top honors in 2005 with a speech
in which he denied the Holocaust had ever occurred, but promised to "wipe Israel off the map" anyway.)
You might also have given the early 2006 lead to televangelist and former Presidential candidate Pat Robertson who
kicked off the New Year with the claim that Ariel Sharon's stroke was a consequence of God's anger over Israel's withdrawal from Gaza under Sharon's leadership.
But New Orleans Mayor Ray Nagin was not content to maintain his also-ran status and stepped up his efforts ("big time"
as the Vice President might say) with his claim yesterday to have spoken to Martin Luther King Jr. about the rebuilding of
New Orleans.
Proving that he is an equal opportunity insulter, Nagin revealed that the spirit of Dr. King had informed him that "God is mad at America" and sent Hurricane Katrina as
a result.
But not to worry. Mayor Ray has a solution. He's going to make sure that when New Orleans is rebuilt it willl
"be a chocolate New Orleans".
Yes, that's right, a "chocolate New Orleans."
And just in case anyone is unclear on what that means, Mayor Ray spelled it out for us, saying, "This city will be a
majority African American city. It's the way God wants it to be. You can't have New Orleans no other way. It wouldn't be New
Orleans."
The obvious punditry on Nagin's latest statement is that it is breathtakingly racist and, if uttered by a white politician,
would presage Olympic sprints by Jesse Jackson and Al Sharpton, full speed, to Larry King's microphone in protest.
But obvious punditry is banal and this horse will be dead before today's evening news.
The more subtle point, I believe, is the weirdly offensive way that these various spokesmen (a prominent televangelist,
the mayor of a major U.S. city and the President of Iran) all claim to know what God thinks and are anxious to tell the rest
of us what that is.
Does no one know how to persuade anymore? Is the only way to win an argument is to claim that God has decreed you
the winner, declare victory and move on?
I hope not, but the first two weeks of 2006 offer little encouragement.
Monday, January 16, 2006
The Caracas-Tehran Axis
Mary Anastasia O'Grady, writing in Opinion Journal, summarizes the many connections between Iran's regime and Venezuelan demogogue Hugo Chavez.
With Iranian nuclear aspirations gaining notice, it's worth directing attention to the growing relationship between Iran's
President Mahmoud Ahmadinejad and Venezuela's President Hugo Chávez. The Reagan administration repulsed Soviet efforts to
set up camp in Central America. Iranian designs on Venezuela perhaps deserve similar U.S. attention.
The warmth and moral support between Ahmadinejad and Chávez is very public. The two tyrants are a lot more than just pen
pals. Venezuela has made it clear that it backs Iran's nuclear ambitions and embraces the mullahs' hateful anti-Semitism.
What remains more speculative is just how far along Iran is in putting down roots in Venezuela.
In September, when the International Atomic Energy Agency offered a resolution condemning Iran for its "many failures and
breaches of its obligations to comply" with its treaty commitments, Venezuela was the only country that voted "no." Ahmadinejad
congratulated the Venezuelan government, calling the vote "brave and judicious."
Three months later, in a Christmas Eve TV broadcast, Chávez declared that "minorities, the descendants of those who crucified
Christ, have taken over the riches of the world." That ugly anti-Semitic swipe was of a piece with an insidious assault over
the past several years on the country's Jewish community. In 2004, heavily armed Chávez commandos raided a Caracas Jewish
school, terrifying children and parents. The government's claim that it had reason to believe that the school was storing
arms was never supported. A more reasonable explanation is that the raid was part of the Chávez political strategy of fomenting
class hatred--an agenda that finds a vulnerable target in the country's Jewish minority--and as a way to show Tehran that
Venezuela is on board. Ahmadinejad rivals Hitler in his hatred for the Jewish people.
The parallels between these regimes are remarkable. Both use anti-semitism as a convenient scapegoat for
their problems, real or imagined. Both ignore their crumbling economies while focusing on anti-American foreign affairs.
Both practice revolutionary rhetoric internally, using increasingly totalitarian tactics to stifle dissent. That one
is a quasi-Marxist state and the other an Islamic facsist state seems not to matter much at all.
Saturday, January 14, 2006
Dahlia Lithwick's Guide to Federalists
Lithwick gives Senate Democrats a (tongue-in-cheeck) tour of what American federalists are all about. Fun reading for a Saturday morning before the kids get up.
Friday, January 13, 2006
FTC Launches Anti-Fraud Site
As a technology lawyer I get calls and emails all the times from friends and relatives, asking me how to stop spam, how
to spot "phishing" scams and the like.
I try to keep track of helping online articles on the topic, but haven't yet found a really easy-to-use site or article
for non-techies.
In an odd burst of usefulness, the Federal Trade Commission, in partnership with the Direct Marketing Association, has
launched a site that provides an extremely easy-to-understand explanation for most kinds of online fraud.
The site is worth saving for future referrals.
Bald Tires on an Icy Road
As reported in the Washington Post, Senator Jon Cornyn said that recent attempts to smear Judge Alito "have as much traction as bald tires on
an icy road."
Senate Democrats, while not in words, at least in their actions and body language are conceding that Alito's confirmation
is inevitable.
When the hearings began Monday, liberal activists said their best hope was for Alito to commit a gaffe or lose his composure.
When his 18 hours of testimony ended at lunchtime yesterday, and Republican senators scurried to shake his hand, both sides
agreed he had done neither.
The committee could vote as early as Tuesday on whether to recommend Alito, 55, to the full Senate. All 10 Republicans
on the panel appear virtually certain to support him, while several senators predicted all eight Democrats will oppose him.
Thursday, January 12, 2006
Why the Drama? Part II
Peggy Noonan captured many of my thoughts even better than I did (that is one of her charms):
But this one is all kind of over, isn't it? It definitively ended when Mrs. Alito walked out in tears. But
to me it seemed over on day one. The Democrats on the committee seemed forlorn in a way, as if they knew deep in their hearts
that nobody's listening. Two decades ago they could make their speeches and fake their indignation and accuse a Robert Bork
of being a racist chauvinist woman hater and their accusations would ring throughout the country. But now the media they relied
on have lost their monopoly. Everyone who's fired at gets to fire back, shot for shot.
It's all changed. Which is one reason Judge Alito will be confirmed, and another reason I like Joe Biden. He still has
the old spirit--an ingenuous spirit, a crazy one, a stupid one. But spirit nonetheless.
Why the Drama?
As many noted, yesterday's hearings were full of sound and fury, but ultimately signifying nothing.
Ted Kennedy, in particular, was in full umbrage mode, all but calling Judge Alito a racist and then calling Chairman
Arlen Specter a liar when Specter claimed not to have received a letter from Kennedy asking for certain documents.
Many have already chided Kennedy for his shameful and embarrassing performance, but I'll my "amen" to their chorus.
The more interesting question, though, is why Kennedy, Schumer & Co. would go to such lengths to embarrass themselves
with their obvious smear campaign against the nominee when every public opinion poll shows that they're not making a dent.
If the Senators can't persuade their colleagues or the public to change their minds, why bother?
The answer goes to one of the ugly truths about Senatorial politics and the politics of the Left in particular:
Senate liberals no longer care about persuading the public. They are beholden to the special interest groups (MoveOn.org,
Emily's list, NOW, NARAL and their ilk) and are willing to go to great and embarrassing lengths to excite the base that donates
to those groups and to appease the elites who lead those groups and determine their campaign contributions.
Senate Democrats know that Alito's nomination is inevitable. They know that they can't persuade the public.
Their only goal now is to put on a show that will make the beneficiaries of George Soros happy so that they can stake their
claim.
One can only hope the public is watching the drama and drawing the right conclusions.
Wednesday, January 11, 2006
Alito Will Be Confirmed
And Senate Democrats will not try to filibuster.
I'm probably not the first to predict it, but after almost three days of trying, Senate Democrats have not even been
able to get Judge Alito to flinch.
John McIntyre, writing at RealClearPolitics, asks whether the Democrats are giving Alito "a pass". Probably not intentionally, but after failing to score so badly
in the first three days of questioning, the Democrats are giving up, if not in word, at least in their body language.
Senate liberals wanted to claim he would overturn Roe v. Wade. No, he said, he would keep an open mind.
Next, they claimed he hated individual liberty and would always back the administration in disputes over civil liberties.
No, he replied, the Constitution continues to apply, both in war and peace.
Finally, they hoped to smear the judge with the decades-old story about the "concerned alumni of Princeton" except that
there only witness was a freelance writer who once compared the Holocaust to eating meet and had to be pulled. So the
smear won't work either.
Democrats ultimately have no story to tell on this nomination that will overcome the more credible story that Alito tells
through his own actions: that his is a smart and humble individual who is more than qualified to be a Supreme Court Justice.
Even worse for the Democratic base, which would love the histrionics a filibuster would bring, Democrats know that a
filibuster would fail. Judge Alito has shown himself to be knowledgeable, calm and likeable. Under heated and
pompous questioning from Senators Schumer and Kennedy he has kept his cool and undermined their credibility in the process.
This nomination is done, even if it takes a few more days for the clock to run out. As McIntyre notes, the Democratic
partisan blogs are already changing their focus to the mid-term elections and the Abramoff scandal. Alito will be confirmed.
Alito Roundup - Day 2
Jonah Goldberg writes, convincingly, that the Alito hearings are a "show trial." They aim not to persuade or to educate, but rather
to create the appearance of drama so that if the nominee commits some kind of gaffe, the opposing Senators can gasp in mock
horror and then denounce the nominee to the waiting cameras.
Would Senators insist on such theatre if the Court weren't as powerful as it now is? Probably not. And why
is the Court so powerful? Because decades of judicial overreaching have transformed the judiciary into a quasi-legislative
institution where political groups who fail at the ballot box take their initiatives to be imposed by judicial fiat.
And what of the show? Senator Kennedy, among other themes, wants to horrify the audience by linking the nominee
to the "public outcry" over warrantless wiretaps of suspected terrorists. But which is more frightening: the warrantless
wiretaps or the politicians who would weaken our defenses against terror in the name of partisan political advantage?
William F. Buckley rightly describes the public's nonchalant response.
Judge Alito said that he would approach the question of abort with an " open mind" if the issue came before the Court.
Even the New New Times was forced to portray Day 1 of the hearings as a victory for Judge Alito:
If Senate Democrats had set out to portray Judge Samuel A. Alito Jr. as extreme on issues ranging from abortion to government surveillance of citizens, they ran up against an elusive target
on Tuesday: Samuel A. Alito Jr. For nearly eight hours, Judge Alito was placid, monochromatic and, it seemed, mostly untouchable.
* * *
For the most part, his handling of questions from Democrats had the effect of leaving his questioner shuffling through
papers in search of the next question.
On his first day of questioning from senators, Supreme Court nominee Samuel A. Alito Jr. tried to send a reassuring
message: The country may be at war, but Americans' personal privacy and civil liberties will be safe with me.
Under sharp questioning from Democrats and gentle prodding from Republicans on the Senate Judiciary Committee,
the federal appeals judge portrayed himself as a cautious, independent thinker who understands the judiciary's role as a check
on presidents who overstep their constitutional authority.
Tuesday, January 10, 2006
Alito Roundup
Jonathan Turley says that Judge Alito is the "wrong nominee at the wrong time" for the U.S. because his past opinions tend to favor governmental
perogatives over the rights of individuals.
As Tom Bevan notes, Kennedy and several of the other Democrats on the Judiciary Committee have taken up this theme, accusing Judge Alito
of favoring the government over the interests of individuals.
Unfortunately, this is an old theme for Democrats and for social liberals, like Turley, who sometimes part with Democrats
on other issues. The question should not be whether the nominee favors one group over another. If he does, he
should not be a judge, let alone a Justice on the Supreme Court.
The test of the nominee should be how faithfully he applies the law and how true is his jurisprudence to the Constitution.
If Turley and other liberals believe that Judge Alito has inaccurately understood the law or imperfectly interpreted the Constitution,
that is fair ground for debate. But the test is not outcome-dependent. Faithful jurisprudence might favor the
government, or corporations, or white Anglo-Saxon males (or whatever other group may be out of fashion this month) or it might
favor some other group in some other circumstances.
The key to jurisprudence is the impartial application of the law and Constitutional principles, not the outcome in particular
cases.
The Alito hearings, however, give every indication they will not be about jurisprudence, as Democrats seem to be gearing
up for a series of personal attacks on issues unrelated to the Judge's past cases.
Saturday, January 7, 2006
Some Thoughts on Adam Smith
Gould's point was on the nature of scientific research and creativity. Darwin had worked for years in the field
of naturalism without developing his theory of natural selection. The evidence for natural selection was available for
years before Darwin penned his original work on the theory. What prompted Darwin to have his original idea and why did
no one else have that idea before Darwin?
Gould's conclusion was that Darwin, like many other original thinkers, had exposed himself to ideas in other areas of
study that, consciously or unconsciously, caused him to compare observations in his own field with those in other fields.
Malthus' chief theory concerned scarcity and population growth, arguing that the geometric growth in population would
necessarily outstrip marginal advances in the efficiency of food production, inevitably leading to starvation. Darwin
observed the multiplication of individuals among certain species but did not see the predicted starvation and extinction suggested
by Malthus.
In Adam Smith's writings Darwin found an answer. Smith, of course, famously argued that it was an "invisible hand"
that caused a common good to emerge out of the competition of individuals with each other for individual gain. If each
individual sought his own advancement, under a rule of law that prevented naked predation, the society of individuals would
be advanced through the advancement of the individuals themselves.
As Gould points out, this Smithian idea comes through in Darwin's idea of natural selection, where individuals within
species compete with each other for food and sexual reproduction. The fittest within the species are mostly likely to
reproduce and survive, leading to a better and more capable species over time.
No individual within the species consciously endeavors to improve the species itself; the individuals seek only their
own advantage. But, through natural selection, the species is improved nevertheless.
7:42 am est
Blawg Review #39 Coming Soon
This week's blawg review will be hosted by Adam Smith, Esq., a blog dedicated to the application of economics and technology to law firm management.
Friday, January 6, 2006
Buying a Pizza in 2010
The ACLU has a new online ad that is worth watching.
It describes "buying a pizza in 2010" and depicts the conversation between a customer and a service provider in which
the service provider has online access to all kinds of personal information about the customer.
The ad is hysterical, as the operator tells the customer that he's overweight and will have to sign a liability waiver
in order to buy the "double-meat" pizza. When he tries to pay by credit card, the operator tells him that he's maxed
out his cards and will have to pay by cash. You get the idea.
The ACLU's angle, however, is that the growth in data-collecting technology requires legislatures to adopt new laws regulating data collection.
There are arguments on both sides of the issue, but one point that bears repeating is that data-collection, and the synergies
that data-collection can create for service providers, brings a variety of efficiencies, both in money and convenience, for
consumers.
As technologies converge (imagine your handheld PDA linking to your home's HVAC, lighting and other systems and being
able to access your bills for your home utilities online) the trade-offs between privacy, convenience and efficiency should
become clearer. What we need to avoid is a knee-jerk reaction in one direction or the other. The debate is complicated
and invokes a number of competing values. That debate requires a measured consideration of the competing values, not
rhetoric and slogans.
Jailed Litigant Released with Pledge Not to Re-File
The Rocky Mountain News reports that serial litigant Kay Sieverding was released from jail earlier this week by Colorado U.S. District Judge
Edward Nottingham after she agreed to dismiss all of her pending lawsuits.
Sieverding was jailed for contempt in December after she had filed dozens of lawsuits in an attempt to revive claims
that she had lost in an earlier cases. ( Earlier post).
Although Judge Nottingham got Sieverding's agreement to dismiss her claims on the record, in statements made to the media
after she was released from jail, Sieverding appeared unrepentant.
"I believe that I was robbed of justice," she said, as her husband implored her, "Please, don't do this." Sieverding
said she would complain to "the attorney general, the FBI, Congress and the White House" adding that she agreed to dismiss
her suits only because she was under duress. "I was threatened with imprisonment, and so was my husband," she said.
"I believe that I was a victim of conspiracy to deprive rights, which is a federal crime."
Judge Nottingham's statement in court on the damage inflicted by Sieverding's multiple suits was an eloquent rendition
of the need for litigation reform. The judge said "You are inflicting damage, economic damage, on people that shouldn't
have that damage inflicted on them."
Tuesday, January 3, 2006
NEA Gives $65 Million to Left-Wing Causes
From today's WSJ:
If we told you that an organization gave away more than $65 million last year to Jesse Jackson's Rainbow PUSH Coalition,
the Gay and Lesbian Alliance Against Defamation, Amnesty International, AIDS Walk Washington and dozens of other such advocacy
groups, you'd probably assume we were describing a liberal philanthropy. In fact, those expenditures have all turned up on
the financial disclosure report of the National Education Association, the country's largest teachers union.
Under new federal rules pushed through by Secretary of Labor Elaine Chao, large unions must now disclose in much more detail
how they spend members' dues money. Big Labor fought hard (if unsuccessfully) against the new accountability standards, and
even a cursory glance at the NEA's recent filings--the first under the new rules--helps explain why. They expose the union
as a honey pot for left-wing political causes that have nothing to do with teachers, much less students.
What possible justification can there be for a union organization (in which membership is mandatory in some jurisdictions)
using its members' due to finance purely political causes that have little or no connection to its members' interests?
Where are the folks from "not in our name" when you really need them?
We Can Whip AIDS
One of the earliest discoverers of the AIDS virus predicts that mankind can find a way to prevent the disease.
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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
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