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.
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.
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.
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
The man offered his Koran toilet paper for sale and planned to donate the proceeds to a memorial for "victims of Islamic
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."
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.
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.
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.
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
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."
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
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?
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.
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.
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.
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.
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
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
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?
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)
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.
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.
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
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.
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
'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.
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.
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.
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
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.
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?
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.
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.
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
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.
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."
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.
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.
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
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.
"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."
Responding to the controversy arising from Danish cartoons that caricature Muhammad, Turkish president Recep Tayyip Erdogan
"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.
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
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.
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
In-house lawyers often are well-positioned to give superior advice to their clients, but not necessarily for the reasons
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
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.
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
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.
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