Jonathan B. Wilson

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Out of Balance
Legislation for Renewable Energy

Jonathan Wilson is an Atlanta attorney with more than 19 years of experience guiding growing private and public companies.  He currently serves as the outside general counsel of several companies and is the former general counsel of (NASDAQ: WWWW) and EasyLink Services (NASDAQ: ESIC).  He is also the founding chair of the Renewable Energy Committee of the American Bar Association's Public Utility Section.

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Friday, March 31, 2006

More on Gore's Voodoo Economics
Over at PointOfLaw
7:57 am est 

Wednesday, March 29, 2006

Al Gore's Accounting for Dummies
Fresh off his latest book and movie promotional tour, the earth-tone-wearing, earth-in-the-balance, inventor-of-the-internet,  former-Presidential-candidate and all-around alpha-male Al Gore now wants to tell public companies how they should modify the  Generally Accepted Accounting Principles in order to reflect the "costs" imposed on the environment by their operations.
As if public companies didn't have enough to do already -- delivering greater accountability, real-time disclosures, heightened executive compensation disclosure, shareholder initiatives, green-friendly, and profitable value-creation -- the  former Vice President would like to add another layer of social policy onto the already over-burdened engine of corporate governance.
His thesis, which is barely fleshed out and should more accurately be called a 'trial balloon', is that companies create "negative externalities" in the form of pollution and so on and that these negative externalities can be quantified as  "costs" born by the public or by individuals.  If companies were required to account for their negative externalities, his argument continues, they would be more likely to reduce those externalities (read, "reduce pollution") and the world we be a better place, etc.
It should come as no surprise that Gore's attempt to change the rules of accounting is little more than a thinly-disguised attempt to use corporate governance as a tool of brow-beating greater levels of pollution-reduction into American companies. 
Set aside the question of whether U.S. businesses should be further regulated in the area of pollution controls.  It's an  eminently debateable question and we debate it often.  If you want to increase the scope or depth of environmental regulation, go ahead and made that argument.  The issue here, however, is whether anyone should suggest that tweaking the rules of accounting is a better way to get at a cleaner environment.
There are at least three obvious reasons why the rules of accounting should remain clear of this kind of manipulation:
1) Internalizing externalities requires a verifiable method of computation. 
It's one thing to acknowledge the theoretical existence of externalities but it's quite another to quanitify them. 
If Acme Corporation produces 1 million tons of CO2 every year as part of its operations, what is the cost of that production?  Every human being who breathes air produces CO2 every few seconds.  How do you measure the cost? 
Advocates like Gore would have us believe that increased CO2 levels accelerate the process of global warming.  They may be right (or not).  Assuming that CO2 production actually does increase global warming, by how much does that occur?  What is the global cost (in today's dollars) of the increment of global warming that is accelerated by Acme Corporation's 1 million tons of CO2 every year?  Should Acme responsible for a portion of the total cost of global warming, or just the marginal cost imposed by its own 1 million tons? 
Given the hotly-contested nature of the global warming debate (what causes it and how fast is it progressing) the more attenuated question of the costs of global warming are even more remote.  As a result, it would be impossible to "internalize  externalities" because there is no reasonable way of counting the cost of negative externalities.

2) Gore's proposal is one-sided. 
Of course businesses (and individuals for that matter) create negative externalities.  We learned this in Econ 101.  But businesses also create positive externalities.  The rules of accounting give companies no 
credit for positive externalities, but Gore would have businesses bear all of their negative external costs.
Imagine that Acme Corporation, though creating 1 million tons of CO2 every year, also creates products (let say it makes blankets).  Acme sells its blankets and generates a profit for its investors, but if Acme ceased to manufacture the blankets  (which are less expensive than its competitors' blankets) some of its customers would lack blankets. 
If the rules of accounting gave Acme Corporation "credit" for the total benefit to society resulting from its products (i.e., the health effects of staying warm, and the hedontic benefits of everyone who used an Acme blanket) Acme Corporation's credit might well exceed that actual money in brought in through sales. 
Under Gore's proposal, however, corporations would only be allowed to bear the costs of negative externalities and would have to ignore all the benefits of their positive externalities.  With this kind of accounting, it is hard to determine whether any businesses would have a "net positive" effect.  If so, would Gore & Co. prefer that these businesses cease operations? 
3) Debating externalities ignores the fundamental purpose of accounting. 
The rules of accounting exist so that the investing public can understand the true financial health of a business.  By having generally accepted rules for accounting, the investing public is able to compare businesses by their financial results, sure in the knowledge that Company A calculates concepts like "revenue" and "earnings" in the same way as Company B.
If businesses had to incorporate externalities into their financial reporting, it would grossly distort their financial results and leave investors with an inaccurate picture of their financial health.
For all his flaws, however, Al Gore is not stupid.  He didn't make this proposal without knowing that it couldn't really work.  He made this proposal in order to shift the terms of the debate over environmental regulation and to set the stage for a number of alternative strategies for environmental activists to employ.  I'll cover that in a subsequent post.
7:55 am est 

Tuesday, March 28, 2006

Pa. Governor Vetoes Tort Reform Bill
Pennsylvania Governor Ed Rendell (D.) vetoed a tort reform bill that would have reformed that state's law of joint and several liability.
The measure, Senate Bill 435, was intended to repair defects found in a 2002 reform that was struck down by the Pennsylvania Supreme Court before it was ever enforced.
The veto of S.B. 435 and the striking of the 2002 reform leaves in place Pennsylvania's 200-years-old common law rule of joint and several liability among joint tortfeasors.  Critics of the common law rule claim that it encourages excessive litigation and unfairly shifts costs to those parties who may be relatively more able to pay and award of damages even if they are relatively less culpable than other parties.
The rule receives the most criticism is situations where the plaintiff bears some measure of responsibility for his own injuries but is still able to recover the entire amount of his damages from a defendant who was responsible for only a small portion of them. 
7:38 am est 

Hooray for Beer!
AP reports that "craft" beer companies, small breweries who brew specialty beers, grew by 9% last year in the biggest one-year increase since 1996. 
In the 1990s, craft beer sales took off and the industry was filled with optimism. Many breweries aimed for rapid expansion, and the most hopeful thought the industry could claim 10 percent or more of the U.S. beer market.
But the market became saturated, growth stalled and craft beer production grew at rates from 0 to 4 percent a year from 1998 through 2003. More than 500 brew pubs and microbreweries closed between 2000 and 2004, outpacing the number of startups, according to the Brewers Association.
The business is now on an upswing, with production up by about 7 percent in 2004 and 9 percent last year, according to the association. Overall beer sales in 2005 fell 0.2 percent in volume, according to Beer Marketer's Insights. Sales of wines and spirits last year grew by less than 3 percent in volume, according to industry organizations.
7:24 am est 

Monday, March 27, 2006

Stopping the Iranian Bomb
Charles Krauthammer sets the stage:
Iran is the test case. It is the most dangerous political entity on the planet, and yet the world response has been catastrophically slow and reluctant. Years of knowingly useless negotiations, followed by hesitant international resolutions, have brought us to only the most tentative of steps--referral to a Security Council that lacks unity and resolve. Iran knows this and therefore defiantly and openly resumes its headlong march to nuclear status. If we fail to prevent an Iranian regime run by apocalyptic fanatics from going nuclear, we will have reached a point of no return. It is not just that Iran might be the source of a great conflagration but that we will have demonstrated to the world that for those similarly inclined there is no serious impediment.
12:54 pm est 

The Heyday of American Business
Sebastian Mallaby thinks it is today. 
12:41 pm est 

Amending the Constitution to Mandate Original Intent?
Charles W. Pickering, Sr. a retired federal judge who was appointed to the Fifth Circuit but whose name was withdrawn after an extended Democratic filibuster, proposes amending the Constitution as follows:
The Constitution and the amendments thereto duly adopted in the future may be changed, modified, amended or added to only by amendment duly adopted as outlined in Article V of the Constitution. Neither the Supreme Court nor the inferior courts will create law, change, modify, amend, or add to the Constitution, but will interpret the Constitution and amendments in accordance with the common understanding of the relevant provision at the time it was adopted. This amendment does not affect the weight to be given prior decisions under the Doctrine of stare decisis.
Conservative readers of these pages tend to have great sympathy for the doctrine of original intent, which is the doctrine suggested in this amnedment's language ("the common understanding . . . at the time it was adopted"). 
But even for those who are inclined to adopt an originalist interpretation of the Constitution, is it wise to amend the Constitution to mandate such an interpretation? 
I agree with many of Judge Pickering's concerns with the current process.  The politization of the judiciary, through the left's use of litigation as a tool of Constitutional change, has harmed the rule of law and demeaned the role of judges.  Rather than interpreting the Constitution, too many judges have taken on the role of "super-legislators" making the hard calls that the legislature has shirked.
But amending the Constitution is a serious step and one that merits extended debate before acting. 
If the Constitution can be amended to mandate original intent, could it also be amended to mandate some other form of interpretation?  Could the Constitution be amended, for example, to require an interpretation that was inconsistent with originalism? 
If so, isn't the very idea of mandating a paradigm of interpretation suggestive of a lack of faith in the proferred paradigm?  In other words, if originalism is the "true" and "correct" interpretation of the Constitution, doesn't an amendment that mandates originalism undercut itself? 
11:22 am est 

Sunday, March 26, 2006

Washington Post Blogger Resigns
Amidst allegations of plagiarism, Ben Domenech, who had been hired as a blogger for the Washington Post, resigned unexpectedly Friday. 
It seems that some of the plagiarism allegations stemmed from pieces Domenech had written for the Flat Hat while a student at William and Mary
The student-run paper took the opportunity to inveigh against the evils of unattributed copying. 
I know nothing of Mr. Domenech but would incline to agree with Michelle Malkin that the practice is "unacceptable" and if Domenech plagiarized (which appears to be the case) then he doesn't speak for conservatives.
It should also be clear to anyone who attended William and Mary (even if they did not graduate) and who remembers the honor code that plagiarism is a clear violation:
Plagiarism occurs when a student, with intent to deceive or with reckless disregard for proper scholarly procedures, presents any information, ideas or phrasing of another as if they were his or her own and does not give appropriate credit to the original source. Proper scholarly procedures require that all quoted material be identified by quotation marks or indentation on the page, and the source of information and ideas, if from another, must be identified and be attributed to that source. Students are responsible for learning proper scholarly procedure.
A sad story.
3:40 pm est 

Afghanistan Drops Case Against Christian
According to officials speaking anonymously. 
1:55 pm est 

Friday, March 24, 2006

Abdul Rahman
Jay Bryant has a different view on the meaning of Adbul Rahman and his threatened execution for the "crime" of converting to Christianity in Afghanistan:

The case of the Afghani morisco Abdul Rahman is being misinterpreted by many as suggesting the hopelessness of attempting to build civil societies in the Muslim world. If Afghanistan, generally seen as the policy's success story (as opposed to Iraq), is still going to execute a man like Rahman after we've kicked out the bad guys, the argument goes, what is the point of it all?

It's a serious argument, and a serious point. But we need to get past it, because, oddly enough, the Rahman case in fact represents progress. It has caused an uproar in the West. It has focused attention on the problem with the radical Islamic law code, shari'a. It has embarrassed moderate Muslims, and widened the gap between them and the radicals in their midst. It makes it more difficult for the moderates to do nothing about the problem.

6:53 am est 

Thursday, March 23, 2006

Is CAFA Working?
A piece in the Madison County Record notes comments made by Howard Bashman, J. Craig Williams and others on the litigation reform law.
Madison County, Illinois, used by the President to highlight the need for reform, has seen a massive decrease in the number of class actions filed since CAFA was adopted in February 2005.
From 106 in 2003 and 84 in 2004 there were only 46 cases filed in 2005, and 36 of those were filed before CAFA took effect.  So far, there have been no new class actions filed in Madison County in 2006. 
7:44 am est 

Glenn Reynolds and His Army
Law Professor Glenn Reynolds, bettter known as Instapundit, offers some thoughts for the newspaper industry.  A 21st century newspaper, he writes, would do at least four things:
1. Abandon paper - Write for the Web and forget about paper.
2. Invest in journalists - Take some of the money you save on printing and deliver and invest in journalists who really known their subjects and can write intelligently about them.
3. Stop insulting readers - People who read are smart enough to know when they're being duped.  Stop trying to manipulate the customer.  Just write well and the market will reward the effort.
4. Incorporate your readers - Use your readership and the blogosphere as part of the online product, taking advantage of the power of the many to check facts and provide commentary. 
Reynolds' ideas are insightful, and some elements of the MSM seem to be taking his advice, but most have a long way to go.
At the same time, the Wall Street Journal provides a helpful review of Reynolds' book, An Army of Davids
7:32 am est 

Wednesday, March 22, 2006

NY Times Discovers Transaction Costs
An Op/Ed in today's NY Times argues for patent reform.  There's an interesting debate to be had over the role of patent law in our development high-tech economy and, as a high-tech lawyer, it's gratifying to see that debate (which was formerly the province of techno-geeks) take the center stage in a lay publication.
But the Times' rationale for reform is down-right side-splitting:
The problem lies not just with the short-staffed patent office, but also with the courts. The ease with which patent holders can get an injunction to shut down a thriving business means that many companies are quietly paying rather than fighting.
Golly, gee.  You mean sometimes when corporate defendants get sued they settle claims -- even those they ought to win -- simply because they don't want the risk or the expense of litigating to win.  I'm shocked, shocked. 
Of course I'm delighted to see the Times discover the existence of transaction costs -- the costs of resolving a legal issue through litigation or settlement.  If only the Times and other lay publications could apply their discovery of transaction costs in the context of generic, non-patent litigation!
If the cost of patent litigation harms our economy by inducing settlements and raising costs for business, transaction costs are even more relevant in non-patent litigation as patent cases account for less than 10% of the overall litigation caseload in the U.S. 
And yet, when Congress passed the Class Action Fairness Act earlier this year, in order to reduce the number of spurious class actions filed in state courts, the Times editorialized that Republicans were "racing to reward wealthy business supporters by changing the rules for class-action lawsuits."
Perhaps the Times' position is that efficiency-driving rationales for legal reform are relevant only when important Democratic donor bases (i.e., trial lawyers) are not harmed by those reforms? 
12:45 pm est 

Tuesday, March 21, 2006

Georgia One Step Closer to Reforming Tort Reform

In an attempt to rescue Georgia’ offer of judgment rule from an assault by trial lawyers and sympathetic judges, Republicans in the State House of Representatives have passed a bill that would reform the 2005 offer of judgment rule.


H.B. 239 modifies the 2005 version of the rule to clarify that a defendant can recover its attorneys fees only if the plaintiff rejects an offered judgment and recovers less than 75% of the amount offered. 


This reform addresses one of the criticisms leveled by a Georgia trial court in late 2005 (Muenster v. Suh) in striking down the law as unconstitutional.   That decision was subsequently settled and not appealed, leaving the law to stand in other courts in the state. 


Among other concerns, the trial court claimed that the rule’s language was unclear and could have been interpreted to prevent plaintiffs from making an offer in settlement.  The court also correctly noted that the language of the rule (which spoke in terms of a final judgment that was at least 25% greater than the offered judgment) was confusing and difficult to apply.


H.B. 239 keeps the spirit of the 2005 rule alive but uses language far more precise than the original:

 (b)(1) If a defendant makes an offer of settlement which is rejected by the plaintiff, the defendant shall be entitled to recover reasonable attorneýs fees and expenses of litigation incurred by the defendant or on the defendant́s behalf from the date of the rejection of the offer of settlement through the entry of judgment if the final judgment is one of no liability or the final judgment obtained by the plaintiff is less than 75 percent of such offer of settlement.


(2) If a plaintiff makes an offer of settlement which is rejected by the defendant and the plaintiff recovers a final judgment in an amount greater than 125 percent of such offer of settlement, the plaintiff shall be entitled to recover reasonable attorneýs fees and expenses of litigation incurred by the plaintiff or on the plaintiff́s behalf from the date of the rejection of the offer of settlement through the entry of judgment.

Importantly H.B. 239 does not address one of the other criticisms made by the court in Muenster v. Suh: that the offer of judgment rule applies only to tort cases and not contract cases.  

7:53 am est 

Monday, March 20, 2006
My company has re-launched itself today with a new name, logo and ticker symbol.  Here's a picture from NASDAQ this morning:
9:52 am est 

Politics and the Past at Yale
John Fund continues his exploration of Yale's decision to admit Sayed Rahmatullah Hashemi, a former deputy minister in the Taliban regime, as a student. 
Rahmatullah had been one of the Taliban's external spokesmen in the years leading up to the regime's ouster in 2002.  Yale at first defended, and then has refused to comment, on his admission to the university. 
Fund continues to expose the hypocrisy behind Yale's position that it may not comment on the personal details of its students. 
Fund describes two past cases involving members of the Yale community with questionable pasts, including Vladimir Sokolov, a professor of languages who was exposed in the mid-1970s as a former collaborator with the Nazis and forced to resign, as well as Paul DeMan, a professor of literature with well-documented connections to the Nazis whose past became a matter of willful blindness at Yale.
The chief difference between Sokolov and DeMan?  Sokolov, in his later years, became a critic of communism and spoke out against it.  DeMan, however, an advocate for "deconstructionism" in literary theory (an argument that texts can have no fixed or inherent meaning and a philosophy that tends to be used as a tool against traditional values and in favor of relativism), was never confronted by Yale officials during his lifetime over his Nazi past. 
Fund has clearly injected a fair amount of personal prestige into his research on the Taliban at Yale, but one thing has become clear: Yale's stated policy of official "tone deafness" on the political histories of its faculty and students is a one-way street. 
Those with a morally questionable past will be given a second chance if their past sins were committed against the U.S. or the West in general (DeMan and Rahmatullah), especially if they continue on as critics of the U.S.  Those who have sinned but become proponents of the West and the U.S., however, will be outed by the university and expelled or forced to resign.
7:30 am est 

Sunday, March 19, 2006

Is Sarbanes-Oxley Unconstitutional?
Mallory Factor, writing in the Wall Street Journal, argues that the PCAOB, which was created by the 2002 Sarbanes-Oxley Act, violates the Constitution's appointments clause because it performs an executive function but its members are not appointed by the President. 
The Competitive Enterprise Institute, one of two organizations that has sued the PCAOB in order to test this theory, gives further background on the constitutional arguments on its website
Larry Ribstein,  Professor Bainbridge and Ted Frank have all weighed-in in favor of the plaintiffs. 
1:54 pm est 

Friday, March 17, 2006

Eisenberg v. Viscusi on Punitive Damages
Walter Olson has a lively discussion on PointOfLaw on a debate between Ivy League law professors Kip Viscusi and Ted Eisenberg. 
Readers of Out of Balance will recall that many of my conclusions on punitive damages relied on Viscusi's analysis. 
As Olson describes it, the crux of the debate is between Eisenberg's point that the majority of punitive damages awards are small in size and therefore unlikely to impact the economy on a macro level, and Viscusi's focus on what he calls "blockbuster" punitive damage awards. 
Of course, for those of us who favor some type of reform in the law of punitive damages, Viscusi's arguments carry the day.  Even if there are relatively few "blockbuster" awards of punitive damages, they are large enough on their own to affect the economy.  As I describe on page 87 of Out of Balance, there were 64 blockbuster awards of punitive damages from 1999 to 2003 in excess of $100 million and those 64 awards amounted to $70 billion.
Even more importantly, the existence of blockbuster awards has an in terrorem effect that tends to cause corporate defendants to settle non-meritorious cases simply to avoid the risk of a significant award of punitive damages. 
12:50 pm est 

Happy St. Patrick's Day
9:31 am est 

Monday, March 13, 2006

Chinese Dot Com
China is reportedly planning to develop new Internet domains that would consist entirely of Chinese characters but would include the Chinese version of ".com" and other popular TLDs.
China's rationale for the move is to create a Chinese version of the web that is free from regulation by ICANN.
Jonathan Zittrain, an Internet law professor now teaching at Oxford, believes this could spawn a second Internet "gold rush" as parties attempt to register Chinese dot com second level domains.
9:01 am est 

A Taxonomy of Legal Blogs
Law Student Ian Best is getting law school credit for an independent study project that involves developing a taxonomy of legal blogs.
Now I really feel old. 
8:21 am est 

Saturday, March 11, 2006

Reforming Tort Reform
Republican sponsors of the 2005 Tort Reform Act in Georgia have proposed an amendment to its offer of judgment provisions.  (H.B. 1461). 
News reports indicate that the bill has passed the House, but the legislature's bill tracking website does not show that development.
Look for a longer analysis of the bill at PointOfLaw next week. 
8:05 am est 

Losing Nerve in Iraq
Victor Davis Hanson asks whether conservatives are losing their nerve in Iraq. 
8:03 am est 

Slobodan Milosevic is Dead
The former leader of Yugoslavia, who was on trial for war crimes in connection with atrocities committed in the Balkans in the 1990s, was found dead in his cell today, apparently dying of natural causes. 
8:02 am est 

Friday, March 10, 2006

BlawgReview #48
Will be hosted this week at RethinkIP, a blog run by patent attorneys Matt Buchanan, Stephen Nipper and Doug Sorocco. 
7:07 am est 

Thursday, March 9, 2006

DaimlerChrysler CEO Calls for Litigation Reform
DaimlerChrylser CEO Tom LaSorda, in a speech to the Economic Club of Chicago, said that the U.S. litigation system is a significant drag on the U.S. economy and should be reformed.
While it's no great surprise to hear the CEO of a major U.S. corporation call for litigation reform, it's something that doesn't happen often enough.  If CEOs throughout the country made a litigation reform a priority in their communications with politicians and community stakeholders, more people would begin to understand the significance of reform for U.S. economic growth and competitiveness.
7:37 am est 

Wednesday, March 8, 2006

Explaining the Loch Ness Monster
On the lighter side of things, a museum curator in Glasgow has developed a new theory to explain sightings of the Loch Ness monster. 
According to reports, Neil Clark, a curator at the Hunterian Museum in Glasgow Scotlands, says that descriptions of Nessie appear to be very similar to the description of an elephant while swimming. 
Compare this photo of a swimming elephant:
And this classic photo of the Loch Ness monster:
This might be an excellent theory were it not for the curious lack of elephants roaming the Scottish highlands.
Undeterred, Professor Clark claims that there was, in fact, a traveling circus featuring elephants in the Inverness area in the 1930s when many of the classic sightings of the monster occurred.
I've been to Inverness and taken the standard tourist boat ride and can vouch for the lake's paucity of elephants.  While I can't opine on the merits of this new theory, I can hazard a guess on its impact on Northern Scotland's tourism industry
11:52 am est 

Harm and Pain
In response to Vice President Cheney's comments yesterday that Iran's continuing nuclear ambitions would bring "serious consequences" Iranian government spokesmen today promised that Iran would bring "harm and pain" to the U.S. for confronting Iran.
Does this sound like the kind of language a developing country uses when it wants to develop nuclear power for peaceful purposes?  When a country's leadership vows to "wipe Israel off the map" and threatens "harm and pain" to those who question its motives, how much more provocation does it take to justify a pre-emptive response? 
As difficult as our efforts in Iraq and Afghanistan may now be, I fear that we will have no choice but to confront Iran militarily.  While that will be a difficult decision, it will be less difficult than the decisions we would confront if we confirmed Iran actually possessed functioning nuclear weapons. 
7:54 am est 

Tuesday, March 7, 2006

Anonymous Internet Speech Attacked
As Declan McCullagh reports, a politician in New Jersey has authored a bill that would purport to prevent websites from permitting users to post messages anonymously.  Under the bill, websites would be required to collect accurate user names and identifying information before letting users post.
Not surprisingly, the politician, Peter J. Biondi, is offended by posts on a local website, 
As McCullagh notes, the more things change, the more they remain the same.  Much of the Federalist Papers were published anonymously and nearly all of the key political tracts published in the decades preceding the American Revolution were published through pseudonyms.
Even if a law prohibiting anonymous speech survived constitutional challenge (which seems highly unlikely), it would fly in the face of several hundred years of American political tradition.
11:17 am est 

Paying the Price for Europe's Softness

European Leon de Winter draws disturbing conclusions on what Europe's refusal to confront Iran might mean for we Americans: 

Europe could have suppressed the Iranian threat if it had convinced the mullahs two years ago that it was willing to contemplate military options. Only Europe lacks core values that it holds sacrosanct and that it's willing to defend at the highest cost. It will continue to operate on the diplomatic field and cling to soft power even though this is the path of certain defeat when confronted with power players burning with geopolitical and religious ambitions.

Thanks to European illusions about soft power, the free world has two options left on Iran: disaster or catastrophe. America and Israel will bleed for Europe's lack of conviction.

11:01 am est 

Monday, March 6, 2006

A Setback for Georgia Tort Reform?
"High Court Overturns Part of Tort Reform Law" trumpeted the Atlanta Journal Constitution the other day, when the Georgia Supreme Court struck down one of two venue-shifting provisions enacted by the legislature in 2005 as part of a wide-ranging liability reform package. Many readers doubtless assumed—whether with dismay or pleasure, according to their predilections—that the Georgia high court had signaled an essentially ideological hostility to the whole project of tort reform, and was making use of whatever constitutional materials came to hand toward that end. After all, that has essentially been the modus operandi of high courts in a number of other states, where jurists have resorted to strained if not acrobatic readings of state constitutional language to do away with legislated limits on liability.
(Read the rest on PointOfLaw). 
2:56 pm est 

Supremes Back Military Recruitment On Campus
In a unanimous opinion, Chief Justice Roberts wrote that provisions of federal law that restrict the receipt of federal funds to institutions that permit military recruitment on campus do not infringe the "free association" rights of educational institutions and the individuals associated with those institutions. 
2:23 pm est 

God and the Taliban at Yale
It's nothing short of mystifying how an institution like Yale would recruit into its student body an individual who, were it not for the U.S. intervention that removed his government from power, would never permit an institution like Yale to exist in his own country.
John Fund provides an insightful run-down on how Sayed Rahmatullah Hashemi, the former deputy foreign secretary for the Taliban, came to be a student at Yale. 
7:42 am est 

Sunday, March 5, 2006

Blackberry Patent Case Settles for $612 M
Research in Motion will make a one-time payment of $612 million but will not have to pay future royalties. 
7:40 am est 

Friday, March 3, 2006

California Initiative Would Limit Punitive Damages
John Sullivan at the California Civil Justice Association has put together a ballot initiative for the 2006 election that would change California law in products liability cases so that plaintiffs cannot pursue punitive damages if the warning labels at issue conformed with applicable statutory requirements.
Sullivan's organization had earlier backed a bill that would have reached the same principle. 
The economic rationale for such a rule makes sense, and coming off his victory over Proposition 64, it will be interesting to see if Sullivan can generate support for this kind of common-sense reform.
1:25 pm est 

Thursday, March 2, 2006

The Creeping Tyranny of the Group Veto
If the intimidators succeed, then the lesson for any group that strongly believes in anything is: shout more loudly, be more extreme, threaten violence, and you will get your way. Frightened firms, newspapers or universities will cave in, as will softbellied democratic states, where politicians scrabble to keep the votes of diverse constituencies. But in our increasingly mixed-up, multicultural world, there are so many groups that care so strongly about so many different things, from fruitarians to anti-abortionists and from Jehovah's Witnesses to Kurdish nationalists. Aggregate all their taboos and you have a vast herd of sacred cows. Let the frightened nanny state enshrine all those taboos in new laws or bureaucratic prohibitions, and you have a drastic loss of freedom. That, I think, is what is happening to us, issue by issue. These days, you can't even read a list of the British war dead in Iraq outside the gates of No 10 Downing Street without getting a criminal record. Inch by inch, paragraph by paragraph, we are becoming less free.
12:38 pm est 

Wednesday, March 1, 2006

Are We Winning in Iraq but Losing at Home?

Some timely thoughts from Victor Davis Hanson

Last week the golden dome of the Askariya shrine in Samarra was blown apart. Sectarian riots followed, and reprisals and deaths ensued. Thugs and criminals came out of the woodwork to foment further violence. But instead of the apocalypse of an ensuing civil war, a curfew was enforced. Iraqi security forces stepped in with some success. Shaken Sunni and Shiite leaders appeared on television to urge restraint, and there appeared at least the semblance of reconciliation that may soon presage a viable coalition government.

But here at home you would have thought that our own capitol dome had exploded. Indeed, Americans more than the Iraqis needed such advice for calm to quiet our own frenzy. Almost before the golden shards of the mosque hit the pavement, pundits wrote off the war as lost--as we heard the tired metaphors of "final straw" and "camel's back" mindlessly repeated. The long-anticipated civil strife among Shiites and Sunnis, we were assured, was not merely imminent, but already well upon us. Then the great civil war sort of fizzled out; our own frenzy subsided; and now exhausted we await next week's new prescription of doom--apparently the hyped-up story of Arabs at our ports. That the Iraqi security forces are becoming bigger and better, that we have witnessed three successful elections, and that hundreds of brave American soldiers have died to get us to the brink of seeing an Iraqi government emerge was forgotten in a 24-hour news cycle.

Few observers suggested that the Samarra bombing of a holy mosque by radical Muslims might be a sign of the terrorists' desperation--killers who have not, and cannot, defeat the U.S. military. After the furor over Danish cartoons, French rioting and Iranian nuclear perfidy, the entire world is turning on radical Islam and the terrorists feel keenly this rising tide of opposition on the frontline in Iraq.

11:54 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.