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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Sunday, February 26, 2006

The Long War

William Kristol sees a long war ahead.  Are up we to it?

DEMAGOGUES TO THE RIGHT OF THEM, appeasers to the left of them, media in front of them, volleying and thundering. Can the Bush administration continue to charge ahead? Does it have the will--and the competence--to lead the nation for the next three years toward victory in the long war against radical Islamism?

From Copenhagen to Samara, the radical Islamists are on the offensive. From Tehran to Damascus, the dictators are trying to regain the upper hand in the Middle East. From Moscow to Beijing, the enemies of liberal democracy are working to weaken the United States. Across the world, the forces of terror and tyranny are fighting back. Are we up to the challenge?

It's not clear that we are. Many liberals, here and in Europe, long ago lost the nerve to wage war--or even to defend themselves--against illiberalism. Parts of the conservative movement now seem to be losing their nerve as well. In response to an apparent clash of civilizations, they would retrench, hunker down, and let large parts of the world go to hell in a hand basket, hoping that the hand basket won't blow up in our faces.

7:51 am est 

Court Bars Rapist from Suing Victim
Connecticut Superior Court Judge Clarance J. Jones has issued a permanent injunction barring convicted rapist Allen Adgers from filing further lawsuits without leave of court.
As previously reported Adgers had been convicted of rape and is serving a 13-year sentence, but has used civil process in a series of suits against his victim and others in order to learn the his victim's home address and subject her to questioning through depositions.
Because there is no threshhold over which a civil suit must pass before a plaintiff may begin using civil process, Adgers was able to learn his victim's address over and over again, even though she moved six times, kept an unlisted phone number and so on. 
While the decision has been rightfully hailed by Connecticut Attorney General Richard Blumenthal as a "victory for victims' rights" it carries little consolution with it for other victims of abusive process and frivolouos lawsuits. 
Judge Jones' injunction is extraordinary and probably would have been unavailable if it weren't for Adgers' outrageous actions.  How many other cases go forward that are less outrageous, but equally wasteful of the time and resources of the courts and the defendant?
So long as plaintiffs have the capacity of filng suit and engaging in discovery without satisfying any minimal standard of justification, unscrupulous plaintiffs will be able to use the compulsive power of the courts to impose frustration and costs on defendants. 
7:41 am est 

Thursday, February 23, 2006

German Court Convicts Man for Insulting Islam
If you think that concerns of the imposition of Sharia law by the intimidation of Islamic riots is hyperbole, read about this case, in which a German court convicted a man, under German law, for insulting Islam by printing the word "Koran" on a roll of toilet paper. 
The man offered his Koran toilet paper for sale and planned to donate the proceeds to a memorial for "victims of Islamic terrorism." 
This exercise in political theater was deemed illegal by the German court and the defendant was sentenced to one year in jail (suspended) and 300 hours of community service.
The efforts of the Islamic fascists will be incremental, rather than wholescale.  They will not conquer and occupy territory, as the fascists of the 1930s tried, but will intimidate society and the courts into accepting their world view.  Only a sustained effort to justify and maintain Western values can stop this kind of campaign. 
It brings to mind the words of T.S. Eliot, "This is the way the world ends, not with a bang but a whimper." 
11:36 am est 

A War of Intimidation

When William Bennett (conservative moralist and Republican) and Alan Dershowitz (liberal trial lawyer and Democrat) agree on anything, you know it must be right.  Here's what they have written:

What has happened? To put it simply, radical Islamists have won a war of intimidation. They have cowed the major news media from showing these cartoons. The mainstream press has capitulated to the Islamists -- their threats more than their sensibilities. One did not see Catholics claiming the right to mayhem in the wake of the republished depiction of the Virgin Mary covered in cow dung, any more than one saw a rejuvenated Jewish Defense League take to the street or blow up an office when Ariel Sharon was depicted as Hitler or when the Israeli army was depicted as murdering the baby Jesus.

So far as we can tell, a new, twin policy from the mainstream media has been promulgated: (a) If a group is strong enough in its reaction to a story or caricature, the press will refrain from printing that story or caricature, and (b) if the group is pandered to by the mainstream media, the media then will go through elaborate contortions and defenses to justify its abdication of duty. At bottom, this is an unacceptable form of not-so-benign bigotry, representing a higher expectation from Christians and Jews than from Muslims.

While we may disagree among ourselves about whether and when the public interest justifies the disclosure of classified wartime information, our general agreement and understanding of the First Amendment and a free press is informed by the fact -- not opinion but fact -- that without broad freedom, without responsibility for the right to know carried out by courageous writers, editors, political cartoonists and publishers, our democracy would be weaker, if not nonexistent. There should be no group or mob veto of a story that is in the public interest.

When we were attacked on Sept. 11, we knew the main reason for the attack was that Islamists hated our way of life, our virtues, our freedoms. What we never imagined was that the free press -- an institution at the heart of those virtues and freedoms -- would be among the first to surrender.

7:50 am est 

Gore Channels Nixon
Someone seems to have decided that Al Gore in 2008 is the functional analog of Richard Nixon in 1968. 
Compare Dick Morris:
And Gore may be a man whose time has come in his party. It was he who warned of climate change and predicted its consequences. Hurricane Katrina was just a fulfillment of the prophesies Gore wrote about in his late-1980s book Earth in the Balance. He has been an energy-conservation nut for years, and his obsessions with alternatives to oil will play better and better as we come to realize how our addiction to oil has led us to dependency on the dealers of this particular drug — Iran, the Saudi royal family and Hugo Chavez.
The Democratic base’s anger at Gore’s defeat in 2000 was assuaged by the worse Kerry defeat of 2004. The idea that he was an incompetent candidate has been replaced in Democratic iconography by the idea that he was cheated out of the presidency. The hiatus has healed his reputation with the base in much the same way that the negative rap on Nixon for losing in 1960 was ameliorated by the Goldwater wipeout of 1964.
History indicates that candidates who won the popular vote but lost in the Electoral College have all come back to win revenge in subsequent elections.
with Roger Stone
Several weeks ago, former Vice President Al Gore told the Associated Press that he “had no plans to seek the Presidency in 2008.” His words were eerily reminiscent of a quote from another former Vice President, Richard Nixon, who told the same Associated Press in November of 1965 that he “had no plans to seek the Presidency in 1968.”
Many years later, in 1992, I chatted with Nixon in his Saddle River, N.J., home. He told me that “no man who narrowly misses the brass ring ever stops dreaming of another shot at it.” If Nixon was right, Mr. Gore may be positioning himself to be the one Democrat who can defeat Hillary Rodham Clinton in the 2008 Presidential primaries.
The odd circumstance of both articles suggests that there's already a cadre of Gore in '08 media consultants handing out talking points with the comparison.  But we have more than two years to go before anyone should break out their earth-tone, alpha-male power suits. 
7:20 am est 

Wednesday, February 22, 2006

No Indictment for Lerach, Weiss
According to reporting
8:32 am est 

Frivolous Lawsuits Cost Taxpayers Millions
Florida television station WESH has a video clip of their expose of several local suits filed against state and county government. 
What's noteworthy is that an MSM outlook is making the case for reform by telling the story of frivolous suits filed against municipalities. 
One of the more interesting cases in the piece is a suit by a pedestrian who claims to have tripped in a municipal parking lot over a pine cone.  The plaintiff claims her suit is not frivolous, arguing, "They should have the grounds clear.  There was no place to walk."
8:27 am est 

Monday, February 20, 2006

Is There Sex in Heaven?
Some thoughts from a Philadelphia newspaper, with an emphasis on the Islamic view:
Eternity is a long time to go without sex.
To many Americans, eyebrows raise at the very idea of suicide bombers believing their heavenly reward will include sex with beautiful virgins. But aren't the 75 percent of Americans who believe in an afterlife concerned that there might not be any sex in their heaven?
Mark Twain considered the problem. In Letters From the Earth, he writes of humankind: "He has imagined a heaven and has left entirely out of it the supremest of all his delights - the one ecstasy that stands first and foremost in the hearts of every individual of his race - sexual intercourse!"
For any sane person, he wrote, heaven would be an intolerable bore.
Not so in Islam. The Koran describes a lush garden-like heaven in which each man can be married to a bevy of beautiful, dark-eyed females called houri. The passage is open to interpretation, but scholars say these are not earthly girls who died but heavenly creatures, and, it would appear, they can be deflowered and then automatically reflower.
"Obviously the houri are there for a reason or they wouldn't be described as ever-virgin," said Tim Furnish, a professor of history at Georgia Perimeter College and author of Holiest Wars: Islamic Mahdis, Their Jihads, and Osama bin Laden.
One of the inflammatory Danish cartoons played on this idea with a voice from the clouds yelling to would-be suicide bombers to stop, because the supply of virgins was running low. Many articles in the U.S. press refer to a reward of 72 virgins - a number that's not in the Koran, Furnish said, but comes from supplementary writings.
"If you take the opposite sex out of the picture, that would not be a heaven where I'd want to go," says Alam Payind, director of the Middle East Studies Center at Ohio State University and a part-time imam. Yes, it's a male-dominated vision, he said, but that was woven into the fabric of Middle Eastern culture.
Why do I have the feeling that if Christians were advertising the sexual delights of Heaven they would be trampled by an army of flag-waving feminists, denouncing them for their objectification of women and yet when the West criticizes Islam, we're told to hold our tongues for fear of giving offense?
10:15 am est 

Litigating Your Way to Weight Loss
USA Today weighs in (sorry) with an editorial on the latest obesity lawsuit, slated to be filed this week in Massachusetts. 
The Center for Science in the Public Interest is planning to sue Kelloggs for allegedly contributing to childhood obesity through child-focused advertising using cartoon images.  (Think Joe Camel with frosting). 
As the paper concludes, this lawsuit, like many others pursued by CSPI, is not only legally questionable but morally misguided.  Children have parents.  (Children without parents have guardians).  Children eat what their parents and guardians provide.  If children are overweight its because their parents let them get that way. 
The tactic of litigating what you cannot legislate is also misguided.  As CSPI quots GSU law professor John Banzhaf, "If we can't legislate, we'll litigate." 
That might be a great mantra for a single-minded interest group, but it's a lousy ethos for a republic.  If our society fails to cure itself of its penchant for litigation, it will lose its ability to legislate. 
9:31 am est 

Saturday, February 18, 2006

Return of the Newt?
Today's WSJ has a background piece on Newt Gingrich and his preparations for a possible 2008 presidential bid. 
I've criticized some of Gingrich's past policy suggestions but the ones his floating in this interview make a lot more sense. 
In particular, the former Speaker has a solution for the problem of pork-barrel spending: require every conference report to get posted on Thomas for at least 72 hours before it can be voted upon.  This would give "every blogger in the country" enough time to read and comment on any outrage and enough time for the MSM to read the blogs and figure it out.
Say what you will about pajamas media and the like, but solutions like this have a ring of simplicity about them and the simplest solutions are often the best.
I'm not sure that this is a formula for a winning presidential race, but I certainly appreciate the thought. 
7:42 am est 

Friday, February 17, 2006

Finding Churchill in our Time
Victor Davis Hanson draws eery parallels between our reluctance to engage the forces of radical Islamism with intellectual appeasement in the 1930s. 
4:42 pm est 

Al Gore Makes a Movie

Paramount has announced that it will produce a film adaptation of Al Gore’s upcoming book, “An Inconvenient Truth” .  Gore's latest book continues the environmental alarmist themes he developed in "Earth in the Balance." 

Whether Gore is planning to become an entertainment icon or is simply refashioning his message for another run at the presidency remains unclear.

8:21 am est 

Wednesday, February 15, 2006

Wal-Mart Ordered to Carry Contraceptive Pill
The Massachusetts state pharmacy board yesterday ordered Wal-Mart stores in that state to carry the RU-486 contraceptive pill. 
It is not clear whether this regulatory decision will have any impact on the civil litigation filed several weeks ago by activists seeking for force Wal-Mart to stock the drug. 
8:27 am est 

ABA Tells Law Schools to Ignore the Law
GMU Law Prof. David Bernstein disembowels the accreditation standards adopted by the ABA's Council of the Section on Legal Education and Admissions at the ABA's recent mid-year meeting.
Standard 211 requires accredited law schools to take affirmative steps to pursue "diversity in gender, ethnicity and race."  This requirement, standing alone, is hardly controversial or noteworthy.

A new element of the standard provies, however, that:
"the requirements of a constitutional provision or statute that purports to prohibit consideration of gender, race, ethnicity or national origin in admissions or employment decisions is not a justification for a school's non-compliance with Standard 211."  
In other words, accredited schools must follow the ABA's requirements for affirmative action, regardless of whether those requirements are legal.
Reasonable minds can differ on the merits of affirmative action policies in law schools and on the constitutionality of race-conscious preferences in admitting students and hiring faculty.  These policies are sharply-debated and their legality will, in all likelihood, continue to be a subject of litigation.
But how in the world does the ABA get the right to mandate that its accredited schools follow its policies without regard to their legality?  Is it not the height of hypocracy for an organization that declares itself dedicated to the rule of law, to flout the rule of law in its accreditation standards?
8:18 am est 

Tuesday, February 14, 2006

Trial Lawyers Struggle to Stop Asbestos Reform
S.B. 852, the asbestos reform bill, seems likely to pass the Senate as proponents presented a motion yesterday to cut off further debate on the measure, but the trial lawyers haven't yet given up. 
The reform is supported by both industry groups, veterans groups and other organizations to usually find themselves at cross purposes.  As the Washington Post, which has editorialized in favor of reform, notes, the only group opposing asbestors reform is the trial lawyers:
IN A TRIUMPH of good sense and bipartisan cooperation, the Senate voted on Tuesday to go forward with a bill that would fix the broken asbestos litigation system. Hundreds of thousands of asbestos injury claims have already landed in the courts, contributing to the bankruptcy of more than 70 companies. Without reform, this process will drag on, triggering the bankruptcy of yet more firms, many of which have only tenuous asbestos connections, because the main firms responsible have already gone under. Meanwhile, many who are ill from asbestos-related diseases won't be able to get timely compensation or, in some cases, any compensation. Unless the bill passes, Navy veterans, for example, will go uncompensated for diseases caused by asbestos on ships. Veterans are not allowed to sue the government, and many of the shipbuilders are long since bankrupt.
The bill will be debated and amended, and it may face a second attempted filibuster before it gets a vote. Some amendment may be reasonable at the margins, but the bill's central idea -- to replace litigation with a $140 billion compensation fund to be financed by defendant companies and their insurers -- must be preserved.
But the truth is that the bill's main opponents are trial lawyers, who profit mightily from asbestos lawsuits and who constitute a powerful lobby in their own right. Mr. Specter and Mr. Leahy are in fact model resisters of special interests who have spent more than two years crafting legislation that serves the public interest. For Mr. Reid to demean this effort in order to fire off campaign sound bites is reprehensible. 
And speaking of reprehensible, the trial lawyers opposing reform have not been at all bashful when it comes to warning Democratic members of Congress that they will withhold campaign contributions from those who support reform.
As tort reform advocate Walter Olson noted recently, even last year Roll Call was reporting the high pressure tactics used by the trial lawyers:
Trial lawyers are advising Democratic Senators that the current proposal to compensate victims of asbestos exposure not only shortchanges their clients, but could curtail future campaign contributions made by asbestos lawyers to Democrats.

Linda Lipsen, a senior vice president for the Association of Trial Lawyers of America, told a Democratic campaign official last week that asbestos lawyers are upset about the legislative fix being advanced by Sen. Patrick Leahy (D-Vt.) and Senate Judiciary Chairman Arlen Specter (R-Pa.).
“It may have an impact on fundraising from this particular bar,” Lipsen said she told a senior Democratic Senatorial Campaign Committee official. “Not that it will, but it might.”
* * *
Trial lawyers are one of the most reliable sources of campaign dollars for Democrats. In the 2004 election cycle, ATLA donated nearly $2.6 million with about $2.4 million of that total going to Democrats, according to the Center for Responsive Politics. While it is not clear how much more individual trial lawyers contributed to Democratic candidates, campaign committees and affiliated organizations, the figure is believed to be impressive.
* * *
Peter Kraus, a partner in the Dallas firm Waters and Kraus, is one of the lawyers ATLA identified as postponing a fundraiser as a result of the asbestos issue.
* * *
The Dallas lawyer said he needs to focus his time on raising money to help defeat the new proposal, which he said would hurt his business.
“I haven’t cancelled anything, but I have pushed stuff back,” Kraus said. “The people I need to go and raise money from for [Democrats] are the same people I go to raise money to help oppose this bill.”
Kraus is a prolific contributor, personally giving more than $150,000 to Democrats in the 2004 election cycle, according to PoliticalMoneyLine. He also helps raise money from other people for the party.
But Kraus said if the bill is approved, then some of these donors will be unable to make future contributions because their livelihood would be greatly affected.
“There are a lot of people I raise money from who will not be making money in this litigation and will not be able to contribute, I am sure, to political campaigns,” he said. “That is not anger or a vendetta kind of thing. That is just the reality.”
* * *
Another trial lawyer specializing in asbestos cases, John Cooney of Chicago, said he, too, had cancelled an upcoming fundraiser. Cooney, a partner in Cooney and Conway, donated more than $70,000 to Democrats in 2004, according to PoliticalMoneyLine. Cooney said he had to cancel his fundraiser because he is spending all his time in Washington, D.C., trying to fight the bill.
A Democratic strategist, who spoke freely on the condition of anonymity, said it is surprising that party leaders are not working harder to protect their political base.
“There is an old adage in Washington that you dance with the one who brought you,” said the strategist, who asked not to be be named. “But it is awfully hard to dance with someone whose legs you just cut off. And it is impossible to waltz into the majority dancing alone.”   (emphasis added)
7:59 am est 

Monday, February 13, 2006

Republicans and Democrats Agree
Republicans and Democrats agree that the South Dakota Judicial Accountability proposal is a bad idea, as that state's House of Representatives has passed a concurrent resolution condemning the ballot initiative.
As previously reported, the J.A.I.L. initiative, would strip South Dakota judges of their immunity for official acts and subject them to lawsuits based upon decisions made as judges. 
Although there are numerous theoretical problems with the initiative, one of the greatest is that it would subject judges to personal liability for "deliberate disregard of material facts".  Because the presence of a genuine issue of material fact is at issue in nearly every motion for summary judgment, such a change in the law could subject every judge in that state to liability for every decision to grant (or deny) summary judgment in every case.
(Cross-posted at PointOfLaw). 
8:00 am est 

Shhhhh . . . . Don't Tell the Iranians

U.S. military planners are reportedly planning “last resort” contingency plans for air strikes on Iranian nuclear facilities in the event sanctions and diplomatic pressure are insufficient to turn the Iranians back from their plans to develop nuclear weapons. 

7:39 am est 

Sunday, February 12, 2006

Attorney Jailed for Frivolous Lawsuits
California attorney Harpeet Brar (past coverage: May 7, 2005; Sept. 3, 2005) has been held in contempt of court and ordered to spend 15 days in jail for ignoring a 2004 injunction against filing frivolous claims. 
Orange County Superior Court Judge Peter J. Polos had issued the injunction in response to Brar's tactic of suing dozens or hundreds of small business defendants simultaneously under California's Unfair Competition Law 17200.  Brar would then promptly contact the defendants, many of whom were non-English-speaking immigrants, and offer to settle the case for a small amount (usually $1,000). 
Brar's latest suit involved a complaint against several dozen liquor store owners who maintained ATMs on their premises that allegedly failed to include a notice that the ATM would charge a fee. 
Dilip M. Vithlani, an attorney who represents many of the liquor store owners, said, "the brilliance of Brar's scheme is that it's cheaper for them to pay him $1,000 to settle because it would cost more to show up in court again." 

Of course a loser-pays, or offer of judgment rule would prevent these kinds of causes from ever being filed and save everyone the trouble of having to deal with the likes of Harpeet Brar. 
7:37 am est 

Friday, February 10, 2006

Excessive Litigation Adds $500 to Every Car
Trying to put a price-tag on our unbalanced litigation system is always a challenge.  The $300 billion annual cost that many in the litigation reform community use is hard to fathom and even harder to put into context.
Daimler-Chrylser has taken its own shot, however, in a recent article in Forbes in which the automaker claims that excessive litigation adds $500 to every vehicle it sells: 
Thomas LaSorda, chief executive officer of the US division of the German-US auto group . . . said the cost of lawsuits - including legal costs and insurance - adds 500 usd to every car and truck sold in the US.

'Perhaps a little 'blue-collar' grounding and manufacturing common sense could go a long way in making sense of the US legal system,' LaSorda told Agence France-Presse at the Chicago Auto Show.

'We need to set some reasonable and fair limits on damages. For every dollar awarded in tort liability, the typical injured party receives only about 46 cents to compensate them for injuries. That means the majority of every dollar goes elsewhere.'

He maintained that the US now spends about 2.23 pct of its gross domestic product on legal fees and other costs associated with litigation while countries such as France, Japan and Canada spend less than one pct of the GDP on litigation.
8:36 am est 

The Contrived Controversy
Nick Hordseth, writing at RealClearPolitics, picks up the argument I made yesterday that the Danish cartoon controversy has been contrived and stage-managed by Islamisk Trossamfund for the purpose of inciting violence and catalyzing radical change. 
Hordseth includes links to the pamphlet the Danish group distributed to clerics in the Middle East in order to engineer outrage.
Nordseth, however, concludes that Iran and Syria jumped on the bandwagon in order to distract attention from their own problems (democratic reform and external pressure for the same in Syria; international pressure to drop a nuclear weapons program for Iran). 
While these rationales no doubt contributed to Iran and Syria's motivations, I think a more persuasive case can be built that Islamisk Trossamfund tried to spark their own Kristallnacht in order to induce Western governments to stifle anti-Islamofascist criticism, thereby empowering the radicals. 
8:24 am est 

Thursday, February 9, 2006

Islamic Kristallnacht?

There is now ample evidence that the controversy and violent demonstrations surrounding the publication of certain cartoons in Danish newspaper Jyllands-Posten depicting the prophet Muhammad was planned, calculated and stage-managed by Islamic activists to certain effect.


As Thomas Lifson reports, after the initial publication of the cartoons in Denmark in the Fall of 2005 there was little public reaction.


A group of Islamic clerics, called Islamisk Trossamfund or the Islamic Society in Denmark, led by Akmad Akkari, then collected the cartoons and pressed their case with other clerics in the Middle East.  Fearing that the actual Danish cartoons would be insufficient to spark a reaction, they supplemented the cartoons with additional depictions that were far more offensive and tasteless. 


In particular, Islamisk Trossamfund added three exceptionally awful cartoons: one depicting Muhammad as a pedophile, a second depicting Muhammad with a pig's snout and a third depicting Muhammad being raped by a dog. 


Although none of these were published in Denmark, Akkari and Islamisk Trossamfund claimed that they had been sent to Muslims in Denmark anonymously.  Akkari refused to identify the persons to whom the cartoons were allegedly sent and there is no evidence to support his claim.


After several months of behind-the-scenes lobbying by Islamisk Trossamfund and Akmad Akkari, however, was a wave of violent protests, organized by sympathetic Muslim organizations in Europe and complicit regimes in the Middle East, burned Danish and other Western embassies, boycotted Danish goods, burned flags and threatened further violence against anyone who would publish the offending cartoons.


As students of history will recall, Nazi organizers in Germany engineered a similar orgy of mob violence after the assassination of Ernst vom Rath on November 9, 1938.   Urged by the Nazi propaganda machine of Reinhard Heydrich , thousands of Nazi party members and sympathizers attacked Jewish homes, synagogues and shops in Germany, causing substantial damage and dozens of deaths. The event eventually came to be known as "Kristallnacht" (or "crystal night" in reference to the broken glass that littered the streets).   


The Nazi government used the rioting as a pretext for the summary detention of approximately 30,000 Jewish men who were ultimately sent to the concentration camps at Dachau, Buchenwald and Sachsenhausen.  The German government imposed fines on the Jews, blaming them for the damage caused on Kristallnacht, and expropriated the millions of marks of insurance benefits that Jewish shopkeepers were entitled to receive in connection with the property damage.


Kristallnacht catalyzed Nazi control over the German state by intimidating the government's opponents and serving as a pretext for control of the Jewish population.  "Although few people knew it at the time, the Kristallnacht pogrom was a first step in the systematic persecution and mass murder of Jews throughout Europe in what came to be known as the Holocaust."


Much of the debate over the Danish cartoons has centered on press freedom and questions of censorship.  Those questions are important but they are not the most important questions. 


Why would a group of radical Islamist organizers intentionally create offensive cartoons that, in their religion, are blasphemous in the extreme, and pass them off as the product of decadent Westerners?


Were Akkari and the rest of Islamisk Trossamfund trying to provoke an Islamic Kristallnacht, in which enraged Muslims in Europe would rise up in violent outrage? 


Was it their intention to fan the flames of violence until European governments intervened, imposing restrictions on anti-Islamic expression as a ostensible means of avoiding further bloodshed?  Did the Islmic organizers of this faux uprising intend to induce Western governments into a reaction that would indirectly accomplish their short-term goal of squelching vocal opposition to radical Islam? 

8:08 am est 

Wednesday, February 8, 2006

Welcome ACCA Readers
The Association of Corporate Counsel has begun syndicating legal blogs on their site. 
8:10 am est 

Tuesday, February 7, 2006

Litigation Reform in Oklahoma 2006
Legislators in Okalahoma are claiming that 2006 will be a critical year for litigation reform in that state.  Those legislators cite stories of physicians (mainly ObGyns) leaving the practice of medicine because of rising malpractice premiums.
9:51 am est 

Wal-Mart Contraceptive Pill Litigation Update
There's quite a lively debate on the earlier posts from this site and Kirkegaard Lives.  Debaters seem to have agreed on the suit's lack of merit and general political slant. 
Few, however, have commented on the tactic's approach of using Wal-Mart's size to make a political comment and imposing costs on Wal-Mart (reducing its shareholders' returns) as a result.   The groups behind this suit have every right to make every public statement and comment they wish about the merits of contraception, family planning and so on.  But should they have a right to impose costs on Wal-Mart and its shareholders in order to garner free publicity for their cause?  Should American taxpayers be required to fund a civil justice system to give political spokespersons a forum for their views? 
As if to make my point, the political organizations behind the suit issued a press release after the suit hit the media, underlining their primary purpose behind this litigation. 
8:45 am est 

Monday, February 6, 2006

Loser Pays Bill Introduced in Indiana
Indiana Representative William E. Bright has introduced H.B. 1277 to change Indiana's rules of civil procedure to permit the "prevailing party" in any civil case in that state to recover its attorneys' fee from the opposing party.
As Walter Olson notes, the bill does not define "prevailing party" and that is a frequent problem in loser-pays reforms.  (If plaintiff recovers on one theory of liability and the defendant recovers on one of its counterclaims, which party prevails?  From another point of view, if a plaintiff asserts eight frivolous causes of action, thereby increasing the length and expense of litigation, and loses on all eight claims but prevails on a single, non-frivolous claim, can the plaintiff be said to have prevailed?)
It is noteworthy, however, that this is a pure loser-pays bill, rather than an offer-of-judgment bill.  Only Alaska, among the 50 states, has a loser-pays rule and Alaska's rule is significantly diluted.  (A party can recover no more than 30% of its attorneys fees if it litigates through trial and prevails.  Cases resolved prior to trial yield an even lower percentage of attorneys' fees).  (See Out of Balance, Chapter 7, for a comparison of state loser-pays statutes).  ] 
If adopted, the bill would be a significant change in Indiana law and could create the grounds for an interesting case study on this kind of litigation reform.
7:32 am est 

Danish Cartoon Controversy - Roundup
The cartoons that started it all.
Mark Steyn, writing in the Chicago Sun-Times:
One day the British foreign secretary will wake up and discover that, in practice, there's very little difference between living under Exquisitely Refined Multicultural Sensitivity and Sharia. As a famously sensitive Dane once put it, "To be or not to be, that is the question."

David Warren, writing at RealClearPolitics:

What we have instead is a wave that is building from lesser waves. Each new provocation, each new breakthrough event, such as the 9/11 hit, or the Hamas victory in the Palestinian elections, adds to the height of what is actually becoming a single wave.

What should be apparent to every Western observer by now, is the ability of this wave, served by modern technology, including world television and Internet, to wash over national and regional boundaries in the Muslim world. Those boundaries were drawn by European Imperialists in the last two centuries, and have served as bulkheads or firewalls against just this sort of catastrophe. They were partly meant for that purpose, by a Europe that was once more vividly aware of the power an aroused Islam could exert -- on a once-Christian continent entirely surrounded by Islamic empires or sea, that several times came close to being completely overrun.

Jeff Jacoby, writing in the Boston Globe:

Make no mistake: This story is not going away, and neither is the Islamofascist threat. The freedom of speech we take for granted is under attack, and it will vanish if it is not bravely defended. Today the censors may be coming for some unfunny Mohammed cartoons, but tomorrow it is your words and ideas they will silence. Like it or not, we are all Danes now.

7:23 am est 

Saturday, February 4, 2006

Great Moments In Tolerance
3:55 pm est 

Do Not Apologize
Ibm Warraq, writing in Der Spiegel
The great British philosopher John Stuart Mill wrote in On Liberty, "Strange it is, that men should admit the validity of the arguments for free discussion, but object to their being 'pushed to an extreme'; not seeing that unless the reasons are good for an extreme case, they are not good for any case."

The cartoons in the Danish newspaper Jyllands-Posten raise the most important question of our times: freedom of expression. Are we in the west going to cave into pressure from societies with a medieval mindset, or are we going to defend our most precious freedom -- freedom of expression, a freedom for which thousands of people sacrificed their lives?

A democracy cannot survive long without freedom of expression, the freedom to argue, to dissent, even to insult and offend. It is a freedom sorely lacking in the Islamic world, and without it Islam will remain unassailed in its dogmatic, fanatical, medieval fortress; ossified, totalitarian and intolerant. Without this fundamental freedom, Islam will continue to stifle thought, human rights, individuality; originality and truth.

Unless, we show some solidarity, unashamed, noisy, public solidarity with the Danish cartoonists, then the forces that are trying to impose on the Free West a totalitarian ideology will have won; the Islamization of Europe will have begun in earnest. Do not apologize.
Do not apologize. 
3:53 pm est 

Even the Vatican Gets It Wrong
CNN quotes Vatican sources saying:
"The right to freedom of thought and expression ... cannot entail the right to offend the religious sentiment of believers"
Unbelievable.  I don't seem to remember the Vatican screaming in outrage when the President of Iran denied that the holocaust had occurred. 
3:50 pm est 

Tolerance Goes Both Ways
"The West's current struggle with a murderous global Sunni Muslim insurgency and the threat of a nuclear-armed theocracy in Iran makes it clear that it's no longer possible to overlook the culture of intolerance, hatred and xenophobia that permeates the Islamic world. The hard work of rooting those things out will have to be done by honest Muslim leaders and intellectuals willing to retrace their tradition's steps and do the intellectual heavy lifting that participation in the modern world requires. They won't be helped, however, if Western governments continue to pander to Islamic sensitivity while looking away from violent Islamic intolerance. They won't be helped by European diplomats and officials who continue to ignore the officially sanctioned hate regularly directed at Jews by the Mideast's government-controlled media, while commiserating with Muslims offended by a few cartoons in the West's free news media."
Tom Rutten.  Worth reading.
3:42 pm est 

Left Wing to Cindy Sheehan: "You're a sock puppet"
According to SF Chronicle's Jon Carroll
3:36 pm est 

The Freedom to Offend
Responding to the controversy arising from Danish cartoons that caricature Muhammad, Turkish president Recep Tayyip Erdogan said 
"Caricatures of prophet Muhammad are an attack against our spiritual values. There should be a limit of freedom of press."
Western minds steeped in an intellectual and legal tradition five hundred years old quickly dismissed the comments.  . . . .
Oh, sorry, I was writing from another world there for a moment.  Actually, some Western commentators failed to grasp the importance of the moment, instead offering hope to the Islamo-fascists by appearing to endorse the sentiment that freedom of speech should be curbed.
Jack Straw, Britsh foreign minister, was quoted to say that press freedom carried an obligation not "to be gratuitously inflammatory". He continued:
"I believe that the republication of these cartoons has been insulting, it has been insensitive, it has been disrespectful and it has been wrong".
How could the foreign minister of the country that wrote the Magna Carta reach such a conclusion?
But certainly this kind of weak-kneed, shallow thinking was limited to our cousins across the pond? 
Sorry, even the folks at Foggy Bottom can't get it right.  U.S. State Department spokeswoman, Janelle Hironimus, said: "Inciting religious or ethnic hatred in this manner is not acceptable."
Expressions of intercultural tolerance are entirely appropriate, even mandatory, in the midst of the clash in which we find ourselves.  Radical elements within Islam have called for a war on the West with their goal being global domination.  If we in the West are to win this war, we must make common cause with those elements within Islam that accept our concepts of democracy and tolerance.  Mocking Islam's founder does not advance that cause.
But at the same time, if we allow the radical elements within Islam to put us on the defensive for expressions of our own values (even those that may be offensive to Islam) then we cede a portion of the battlefield.  Western values are superior because they are based on religious tolerance and public secularism. 
If the West responds to expressions of outrage defensively, blaming the cartoonists for causing offense, it undermines our values.  Freedom of expression entails the freedom to offend. 
The war with radical Islam is a war of values.  We cannot win that war by apologizing. 
10:28 am est 

Danish Cartoonists Fear for Their Lives
Afraid of more backlash from Muslim extremists. 
8:18 am est 

Friday, February 3, 2006

Oregon Supremes Attack State Farm Limits on Punitive Damages
With a tip from Ted Frank, the Oregon Supreme Court has affirmed a lower court ruling in Williams v. Philip Morris (Feb 2, 2006), affirming an award of punitive damages that are more than 151 times the compensatory damages in that case.
The Philip Morris ruling would seem to contradict the Supreme Court's guidance in State Farm that limits punitive damages to an amount not more than ten times compensatory damages.  (For an extended discussion of the State Farm case, see chapter 6 of Out of Balance). 
As Ted notes, if Philip Morris appeals, we could see an opinion by Chief Justice Roberts and Associate Justice Alito on the scope and applicability of State Farm
9:18 am est 

Do In-house Lawyers Give Better Advice Than Outside Counsel?
Do in-house lawyers give better legal advice than outside counsel? 
In-house attorney and blogger Todd Mayover thinks so.  He argues that in-house lawyers give better advice primarily for two reasons: in-house lawyers are more trusted by company executives and in-house lawyers don't have the "conflict of interest" (his words) that outside lawyers do.
In-house lawyers often are well-positioned to give superior advice to their clients, but not necessarily for the reasons Mayover provides.
In-house lawyers often have more trust than outside counsel, but trust isn't everything.  Experience, diligence and legal knowledge are the key components of good legal advice.  Trust simply assures that the client believes the advice it receives.
Conflicts of interest?  I suppose there may be a marginal difference between the motives of the lawyer who bills by the hour and the salaried in-house lawyer, but there are abundant opportunities for aggressive in-house lawyers to build internal fiefdoms around pet issues in their areas.  An in-house marketing lawyer, for example, might be tempted to overstate the risk of consumer fraud liability in order to grow his own budget for reviewing and evaluating company advertising.  Both in-house and outside lawyers share some quantum of self-interest in the advice they give.
In-house lawyers may be uniquely positioned, however, because they know the company better than their outside counterparts.  Many legal issues are, in actuality, mixed questions of law and business judgment.  An in-house lawyer who understands his company's business and the imperatives that are driving it will have a better opportunity to place his assessment of legal risks in the proper business context.
Similarly, in-house lawyers are often better able to assess legal risk that outside counsel.  A law firm partner can often conclude his advice by telling the client what the risks are and that they client should weigh those risks in making a decision.  The in-house lawyer, however, has a far clearer view of the company's business needs and will often be able to determine how the company will evaluate, and act upon, risk before he even gives his legal advice.
While I am a fan of in-house lawyers, however, I wouldn't be too quick to delete my rolodex of outside lawyers.
Outside lawyers play a key role for corporate clients (a) in areas where specialized advice is necessary (SEC arcana, tax questions, ERISA and employee benefits and more obscure questions), (b) in handling litigation, as in-house lawyers are generally not well-suited to litigate their own cases, and (c) in cutting-edge areas where outside counsel have a demonstrated expertise and have already invested their own time becoming knowledgeable on new issues.
The best legal structure for most corporations, therefore, is a combination of in-house and outside counsel, working in cooperation and in a way that provides the best advice to the company in different circumstances. 
8:03 am est 

Thursday, February 2, 2006

This Cartoon Will Get You Fired
The cartoon that sparked today's kerfuffle:
2:59 pm est 

Editor Fired Over Cartoons Offensive to Muslims
The latest shot in the culture wars was fired this morning when fired its French editor over the publication of a cartoon that certain Muslims found offensive.  
The controversy blossomed throughout the day with various Islamic groups burning European flags and expressing their outrage while E.U. officials rubbed their hands and expressed dismay.
Nothing like burning another country's flag to get that country's residents to treat you with greater sensitivity.
2:56 pm est 

Wal-Mart Sued Over Morning-After Pill
A group of women have sued Wal-Mart for allegedly failing to stock the "morning-after" contraception pill. 
The plaintiffs, all women, claim that they tried to buy the contraceptive pills at Wal-Mart but were turned away and told that the store does not carry the drugs.
It was all a set-up, of course, as the AP reports:
The women said they knew they would be refused when they went to the Wal-Marts in Quincy and Lynn and that the action was planned with the abortion rights groups and lawyers.
The suit is being backed by Planned Parenthood, NARAL and other abortion rights organizations.
At issue is a Massachusetts statute that requires pharmacies to stock "commonly-prescribed medicines."  A letter from Wal-Mart's legal department to the plaintiffs before suit was filed took the position that the morning-after pill was not "commonly-prescribed."
Legal blogger I.M. Kierkegaard writes:
It doesn't sound as if Walmart is holding these women hostage and preventing them from taking their business elsewhere or otherwise affirmatively trying to stop them from getting the pill. Walmart is just deciding not to carry a particular product which, it looks to me, they are not required to carry.
Presumably, NARAL and Planned Parenthood think that by making an example of Wal-Mart they can induce the wide availability of the contraceptive, thereby furthering their political agenda with respect to family planning.  Reasonable minds can disagree over the merits of that political agenda, but there can be no dispute that this tactic of using litigation to advance a political cause imposes significant economic costs on business and consumers.
What would be the result if Wal-Mart had to maintain a ready inventory (in every one one of their 3,800 stores in the U.S.) of every medication that one interest group or another proclaimed to be "commonly-prescribed"?  The result would be higher costs for Wal-Mart (and its competitors) and higher prices for consumers. 
Big-box retailers compete on the basis of "just-in-time" inventory management.  They have detailed metrics on the number of units sold of each item and they carefully manage inventory so that they have just enough units in stock before the next shipment arrives. 
By requiring excessive inventory, regulations like those in Massachusetts (and the effective regulation imposed by litigation like this one) do little more than raise prices for consumers. 
8:18 am est 

Wednesday, February 1, 2006

State of the Union - The Blogosphere Reacts
"a great speech"  Hugh Hewitt
"another good speech"  John Hinderaker
"more of the same"  Nancy Pelosi   (betcha didn't know she was a blogger)
7:14 am est 

State of the Union
7:08 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.