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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Friday, September 29, 2006

Louisiana Med-Mal Cap Held Unconstitutional
A Court of Appeals in Louisiana has ruled that the state's 1975 $500,000 cap on medical malpractice claims was unconstitutional because it failed to index for inflation.  (Tip from Walter Olson). 
The opinion in Susan Arrington v. ER Physicians Group was issued by the 3rd Circuit of the Louisiana Court of Appeals on a 3-2 divided panel and is unusual for several reasons.
The majority's ruling is based primarily on the factual claim that a $500,000 cap in 1975 is worth only $160,000 today.  Assuming the court got its math right, does that mean that every statute that contains a dollar-value (such as fines for certain crimes, dollar thresholds for certain types of crimes and so on) is unconstitutional?
The legislature certainly understood, in 1975, that inflation tends to eat away at a nominal amount.  If the legislature declined to use an indexed value, doesn't that represent the legislature's choice and decision?
Would the court have reached the same conclusion if, per chance, there had been no inflation between 1975 and the present day?
The majority opinion also cites liberally (perhaps to a fault) from a handful of law review articles, at times lifting multi-paragraph block quotations for various "learned" colleagues.  The opinion also includes a number of string cites from other jurisdictions that have also invalidated damages caps on constitutional grounds.
These stylistic quirks, taken together, given the opinion the appearance of being copied from a amicus brief from a plaintiffs' advocate. 
3:15 pm edt 

Lockyer's "Frivolous Lawsuits"
The San Jose Mercury News editorializes on the California AG's new "global warming" lawsuit aimed at automakers:
It's Lockyer's job to try to enforce California law. It's not his job to make law through frivolous lawsuits.
7:36 am edt 

Thursday, September 28, 2006

Federal Identity Theft Task Force
The President's Identity Theft Task Force has released a report that chronicles its progress to date in fighting identity theft.  Among the task force's findings:
  • In 2005, the Justice Department charged 226 defendants with aggravated identity theft.
  • In 2006 (through the end of July 2006), the Justice Department charged 432 defendants with aggravated identity theft.
  • The FBI reports that it has 1,587 pending identity theft-related cases. It opened 662 identity theft-related cases in 2005, and has opened 272 identity theft-related cases to date in 2006.
  • The USPIS reports that it opened 1,530 identity theft-related cases and made 2,277 arrests in Fiscal Year 2005, and opened 1,012 identity theft-related cases and made 1,294 arrests in Fiscal Year 2006 (through June 30, 2006).
  • The SSA OIG Office of Investigations reports that it opened 1,566 cases involving SSN misuse in Fiscal Year 2005, and 812 cases involving SSN misuse in the first half of Fiscal Year 2006.

And yet, Symantec's recent Internet Threat Report suggests that Internet fraud is increasing (i.e., phishing scams up more than 80% year of year). 

1:25 pm edt 

Feds Continue War on Obscenity with New Indictment
Continuing DOJ's expanding war on obscenity (past coverage) authorities today announced the indictment of Karen Fletcher, 54, or suburban Pittsburgh, PA on obscenity charges.
Fletcher is accused of writing stories depicting the graphic molestation and torture of children and selling access to those stories through her website.  Unlike other obscenity prosecutions, however, reports indicate that Fletcher's website did not include graphic videos or pictures, but rather only obscene text. 
(DOJ Press Releases on obscenity and child pornography).   
12:25 pm edt 

Mozart Silenced by Mulsim Rage
As Roger Kimball reports, a German opera company has cancelled a production of Mozart's "Idomeneo" because of fears that its dramatic incorporation of a figure of Muhammad would inspire Muslim rage:
The spectacle of Deutsche Oper's decision to cancel "Idomeneo" suggests that the West's dealings with Islam have entered a new phase. Yesterday, we waited until after the Muslims took to the streets before capitulating; today, it appears we have moved on to pre-emptive capitulation.
Where will it end? I suppose that depends on how much we really care about the liberty and freedom we champion with words. Freedom, as some wit observed, is not free. Will we have the gumption to pay the cost? The jury is still out on that question. I hope and pray that the answer will be yes. "There is," G.K. Chesterton noted nearly 100 years ago, "a thought that stops thought. That is the only thought that ought to be stopped."
9:36 am edt 

Wednesday, September 27, 2006

American Colleges are Failing
According to a recently-released survey by the Intercollegiate Studies Institute, American colleges are failing to teach basic American history of civics to college students.
As outlined in Pete DuPont's related editorial in today's WSJ, the survey finds that:
  • In a 60-question multiple-choice test on American history and civics taken by college seniors, 53.2 percent receive a failing grade.
  • Only 47.9% of those taking the test correctly identify the quotation: "We hold these truths to be self evident, that all men are created equal" as coming from the Declaration of Independence.
  • More than half did not know that the Bill of Rights forbids the governmental to establish an official religion.
  • 55.4 percent did not recognize Yorktown as the final battle of the American Revolution to an end (more than 25% thought the Revolution ended at the the Civil War battle of Gettysburg).

Frightening statistics for all Americans. 

8:16 am edt 

Tuesday, September 26, 2006

Sex Strike in Colombia
Trying a method first described by Aristophanes in Lysistrata in 411 B.C., a group of women in Colombia are trying to convince their partners to forsake violence and renounce their membership in violent gangs by refusing to have sex with men until they do. 
The Independent Institute's Alvara Vargas Llosa has the full story. 
3:52 pm edt 

Condi Slams Bill
Responding to former President Bill Clinton's now-infamous blow-up on Fox News, Secretary of State Condoleeza Rice is disputing some of Clinton's claims.
Clinton's argument, doubtless springing from the negative light cast on his administration in ABC's The Path to 9/11, was that, although he failed to kill or apprehend Osama bin Laden during his 8 years as President, he did "at least try".  He claimed, "That's the difference in me and some, including all of the right-wingers who are attacking me now  . . . . They ridiculed me for trying. They had eight months to try, they did not try."
Rice responded specifically to the "eight months" comment, saying, "The notion somehow for eight months the Bush administration sat there and didn't do that is just flatly false — and I think the 9/11 commission understood that." 

She also disagreed with Clinton's statement that he "left a comprehensive anti-terror strategy" when he left office.  Rice disagreed, saying, "We were We were not left a comprehensive strategy to fight al-Qaida."

9:48 am edt 

Monday, September 25, 2006

Phishing Scams on the Rise, says Symantec
Symantec's twice-yearly Internet Security Threat Report has just been released, claiming that phishing scams are on the rise.  Among its chief findings:
  • Since the second half of 2005, there have been 2,249 new documented vulnerabilities, an increase of 18%;
  • There are approximately 6,110 DoS attacks per day;
  • The United States is the target of most (54%) DoS attacks;
  • China has the higher number of bot-infested computers (20% of the worldwide total);
  • The United States is the largest originator of Internet attacks (37% of worldwide total);
  • Homes are the chief target of Internet attacks (86% of total); and
  • There were 157,477 unique phishing messages, an increase of 81%.

There are several "anti-phishing" bills pending in the state legislatures.  Look for an upcoming white paper on the topic in the next week or so. 

1:45 pm edt 

Light Smoker Class Action Suit Goes Forward
Judge Jack Weinstein (S.D.N.Y.) has given a greenlight to a 2004 class action filed on behalf of smokers of "light" cigarettes.  Defendants include Phillip Morris, R.J. Reynolds and Lorillard. 
9:43 am edt 

Sunday, September 24, 2006

Michigan Civil Rights Ballot Initiative
Wild charges of racism.  Disrupted public meetings and overturned tables.  Voters claim they didn't understood what they were signing.  A lawsuit.  A ruling.  Colloquy from the bench and charges of judicial activism.
You guessed it.  It's a civil rights ballot initiative.
The Michigan Civil Rights Initiative (MCRI) collected more than 500,000 signatures to put an initiative on the ballot this number that would outlaw most affirmative action measures in the state.  The initiative reads in part: 
A proposal to amend the state constitution to ban affirmative action programs that give preferential treatment to groups or individuals based on their race, gender, color, ethnicity or national origin for public employment, education or contracting purposes. 
George Will has an insightful backgrounder on the matter. 
While I haven't investigated the merits of MCRI's approach, it is noteworthy that its opponents have adopted such a hateful tone.
On its face, the initiative seeks to require Michigan's state government to treat all persons equally for "public employement, education or state contracting purposes."
The purpose of affirmative action, of course, is precisely the opposite.  Affirmative action seeks to benefit some groups over others because those groups have suffered discrimination in the past. 
Courts have wrestled with the constitutionality of affirmative action but regardless of the purely legal issues, one can see that persons of good will can reasonably disagree over the practical effects and moral standing of affirmative action.  It is because there is room for reasonable disagreement and debate that programs like affirmative action as especially well suited for legislative action, instead of judicial fiat.  MCRI is right to put this topic on the ballot. 
If blacks have historically suffered discrimination, does that entitle a particular black person today to receive a state benefit (say, admission to college) instead of a white person?  Proponents of affirmative action say yes. 
In more heterogeneous areas (California, for example) it is not at all clear why some groups are more deserving than others.  Should blacks, hispanics, asians and native Americans all receive preference over caucasians in college admissions?  As between blacks, hispanics, asians and native Americans, should one of those groups have preference over the others? 
Supporting affirmative action, on at least some level, entails a choice that some groups should get preference over others.  While proponents can claim that preference is justified, honest debate requires that we acknowledge that this is a debate over whom should be preferred.
Because it is a difficult and sensitive debate, it is all the more deplorable that organizations that once stood for equality among persons have stooped to the depths reported in the MCRI ballot initiative.  MCRI's sponsors have endured death threats, personal attacks, lawsuits and more. 
One of the opposition groups, By Any Means Necessary, is especially violent in its language, mincing no words when it calls MCRI's founder a "racist".  MCRI has a video on its website showing BAMN supports using obscenities to disrupt a public meeting, and overturning a table.
There is a real debate to be had on this issue, but unless those who claim to stand for civil rights condemn violent acts and language on the part of their fellow travelers, they lose the ground to speak in that debate. 
4:52 pm edt 

Saturday, September 23, 2006

State of California Sues Automakers for Global Warming
California State Attorney General William Lockyer has filed suit against automakers in the U.S. and Japan, claiming that the vehicles they manufacture constitute a public nuisance because the automakers could do more to reduce emissions.  (Background on Overlawyered). 
Lockyer's ambitions are as transparent as the flaws in his reasoning.  His New York counterpart has launched a political career by taking on big industries with flimsly legal theories in an attempt to generate public sympathy and faux populism. 
The nuisance theory in Lockyer's case is novel (in the sense that it tries to pin the price tag for global warming on an industry that contributes less than 1% of all greenhouse gas emissions globally) except that it really isn't. 
The tort of "public nuisance" is ill-equipped to make public policy, which is really what is at work in this case.  If lawmakers wanted to ban automobiles, or require manufacturers to adopt emissions limitations on their vehicles, they could.  If the legislature has not adopted such laws, that is because the public, through the legislature, has made the affirmative decision not to do so.  An executive decision to try to achieve the same policy outcome through litigation, then, is nothing more than a violation of the separation of powers. 
As Professor Bainbridge notes, reasoning of the kind advanced by Lockyer here has been rejected before.  In a similar case brought by NY AG Eliot Spitzer against handgun manufacturers (again alleging a nuisance theory) the New York Supreme Court wrote:
Plaintiff's attempt here to widen the range of common-law public nuisance claims in order to reach the legal handgun industry will not itself, if successful, engender a limitless number of public nuisance lawsuits by individuals against these particular defendants .... However, giving a green light to a common-law public nuisance cause of action today will, in our judgment, likely open the courthouse doors to a flood of limitless, similar theories of public nuisance, not only against these defendants, but also against a wide and varied array of other commercial and manufacturing enterprises and activities.
All a creative mind would need to do is construct a scenario describing a known or perceived harm of a sort that can somehow be said to relate back to the way a company or an industry makes, markets and/or sells its non-defective, lawful product or service, and a public nuisance claim would be conceived and a lawsuit born. A variety of such lawsuits would leave the starting gate to be welcomed into the legal arena to run their cumbersome course, their vast cost and tenuous reasoning notwithstanding. Indeed, such lawsuits employed to address a host of societal problems would be invited into the courthouse whether the problems they target are real or perceived; whether the problems are in some way caused by, or perhaps merely preceded by, the defendants' completely lawful business practices; regardless of the remoteness of their actual cause or of their foreseeability; and regardless of the existence, remoteness, nature and extent of any intervening causes between defendants' lawful commercial conduct and the alleged harm.
7:15 am edt 

McDonald's Obesity Suit Survives Second Motion to Dismiss
The infamous McDonald's obesity suit, Pelman v. McDonald's Corp., has survived a second motion to dismiss (S.D.N.Y. 02 Civ. 7821). 
The trial judge had originally dismissed the complaint, granting plaintiffs leave to amend, only to later dismiss the amended complaint as well.  The Second Circuit reversed, holding that plaintiff had alleged a cause of action under New York's deceptive advertising statute.
On remand, the trial judge asked plaintiff to give specific examples of deceptive advertising and to allege the materiality of those deceptions.  Defendant moved to dismiss again but this time the trial judge found that plaintiff had alleged enough specific examples for the defendant to answer the complaint. 
Ted Frank notes the outcome here, providing links to other resources on the case. 
7:02 am edt 

Friday, September 22, 2006

Chavez at the U.N.
According to the WSJ, Chavez "makes a mockery" of the United Nations because the organization has made a mockery of itself:
Hugo Chávez and Mahmoud Ahmadinejad put on quite a show at the United Nations this week, and it's tempting to dismiss it all as mere bombast. Except that their assertiveness can't be separated from the more important U.N. story this week, which is its continuing failure to come to grips with Iran's open defiance of the Security Council's demand that it suspend uranium enrichment.
At issue is whether the U.N. can have any role in enforcing collective security--and the mystery is why the very nations that say the U.N. must do so are doing the most to undermine it.
But Peggy Noonan asks, don't we need to respond to a dictator who uses the U.N.'s podium to annoint himself as the heir to the Fidel Castro Chair for Anti-Americanism in a world where nations with a GDP lower than that of Rhode Island can aspire to nuclear weapons: 
He raised his own standing. He got the world to look at him. He emerged in the speech as heir to the dying Fidel Castro, who he was careful to note is still alive and kicking. Chavez doesn't want to be the current Fidel, the old man in soft fatigues, but the Fidel of 1960, who when he went to the U.N. pointedly camped in a hotel in Harlem, and electrified the masses. Chavez even followed his speech with the announcement he was giving heating oil to the needy of the Bronx. You know what they said in the Bronx? Thanks! It went over big on local TV.
He broke through the clutter. Everyone this weekend will be discussing what he said--exactly what he said, and how he said it.
He shook things up. His speech was, essentially if implicitly, a call to resistance, by any means, to the government of the United States.
He broadened his claimed base. Chavez made the argument that it is not America versus Saddam or America versus terrorists but the American Empire versus all the yearning people of the world. He claimed as his constituency everyone unhappy with the unipolar world.
Our foreign policy seems to be failing right now not because it is too muscular, but because it is not muscular enough.  By that I don't mean that we need to exercise military muscle, but rather the strength of our convictions through debate and persuasion.
Why is Chavez wrong?  Why will Chavez' policies hurt the very people he claims to want to help?
Because 70 years of Soviet experience, 45 years of Chinese experience and 30 years of Cuban experience demonstrate that socialism doesn't work. 
Chavez can create an illusion of prosperity for Venezuela's masses by distributing its oil income, but that money is a placebo for the country's economic illness: It may make the road to ruin more pleasant, but will not change the ultimate, unhappy outcome.
The peace and prosperity held out by the U.S. to the rest of the world, through democratic governance, free trade and civil liberty, is the only certain path.  History demonstrates it.  The path may be a long one, and it may come with sacrifice, but there is no alternative.
If America really believes that, it needs to communicate it better to its allies and the world.  If not, the bluster and bravado of Chavez will simply embolden the fanatics and the cynics, who will perceive weakness in our failure to inspire confidenc. 
8:30 am edt 

Thursday, September 21, 2006

Madonna's "Crucifixion" Scene Hardly Controversial At All
Media watchers are breathlessly awaiting a controversy-in-the making that is hardly controversial at all.
It seems that the Material Girl's "Confessions" tour features a scene in which the singer is crucified while wearing a crown of thorns.  Representatives of the Catholic Church have criticized the portayal as disrepectful to Catholicism.
Remarkably, however, the media have not reported a single violent protest over the tour.  Madonna's residence has not been burned to the ground and no representatives of the Catholic church have called for the singer's beheading.
Perhaps if she really wants to gin up a good media maelstrom Madonna could change the choreography to feature a scantily-clad Muhammad, whizzing about the stage on a chariot of fire accompanied by a chorus of 72 dancing virgins.  (Now that sounds like a show!)
If she was truly a believer in the maxim, "There's no such thing as bad publicity", Madonna would seem to be better-served by aiming her theatrical talents at an audience that is prepared to take their outrage to a higher level than that available to modern-day Roman Catholics.
The recent reaction of some muslims to the Pope's recitation of an obscure medieval text critical of Islam makes Madonna's faux-crucifixion seem almost mainstream.  Hardly the stuff of edgy social criticism when one's life is not at risk.  Where's the bravery in taking on the most sacred symbols of a world-wide religion when the religion's response will be to wag its finger and hold its nose.
The bravest artists today are those who take on the symbols of a religion that uses violence as a tool of recruitment.  On that level, Madonna can't hold a candle to Theo Van Gogh. 
3:38 pm edt 

A Great Debate
We need to stop treating Muslims like children, and viewing our public diplomacy with Islamic countries as popularity contests. Given what's happened since 9/11, a dialogue of civilizations is certainly in order. To his credit, Benedict has at least tried to approach the invidious issues that will define any helpful discussion. For 200 years, the West has, for better and worse, helped create the intellectual framework within which all Muslims think. Muslim saints, like the Egyptian dissident Saad Eddin Ibrahim, or Muslim devils, like Ayatollah Khomeini, have Western ideas profoundly within them. If we withdraw from this civilizational debate, the decent men and women of the Middle East, most of whom are faithful Muslims, will have a very hard time defeating those who have brutalized and coarsened their culture and religion. Westerners are doing Muslims an enormous disservice--a lethal bigotry of low expectations--by telling the pontiff to be more diplomatic. This isn't how anti-Western Islamic theocrats, holy warriors and ordinary teachers in much of the Muslim world act. They're having a real, vibrant discussion. We should turn it into a debate.
8:48 am edt 

Tuesday, September 19, 2006

A Short History of Conversion by Force in Islam
Atlanta history professor Timothy Furnish has posted a short history on the subject, available here.  Among its highlights:
Muhammad was not just a man claiming that God spoke through him; he was also a political and military leader. Driven out of Mecca and taking the reins of power in Medina, Muhammad and the Muslims spread their faith not just via da`is (missionaries), but by the sword; in fact, Jews in Medina who refused to accept Muhammad’s prophethood (and who, to be accurate, were accused of plotting against King Muhammad) were killed or enslaved. The conquest of Mecca in 630 CE was accomplished at swordpoint, not by persuasion. The creation of a huge Islamic Empire by the first four caliphs, the Umayyads and the Abbasids (between 632 and the end of the first millennium CE) was carried out via conquest—not by handing out brochures. Granted, Jews and Christians within the Muslim-ruled territories from the Pyrenees to the Indus were not all forced to convert—but the relegation to second-class status known as dhimmah led, eventually, to the majority of people in North Africa and the Middle East converting to Islam.
The initial phase of Islamic conquests resulted in about half the territory of the Byzantine (Eastern Roman) Empire switching hands. For several centuries the borders stabilized and the Byzantines ruled a state pushed back into Anatolia and the Balkan Peninsula. But in the 14th century CE a new wave of Muslim jihadists, the Ottoman Turks, were again moving on Byzantine lands. This was the situation facing Manuel II, and no doubt his view of Islam as “evil and inhuman” was in no small measure influenced by watching what was left of his empire disintegrating. (Indeed, less than three decades after his death Constantinople would fall to the Ottoman ruler Mehmet II.) One might ask how many Muslims setting fire to Christian churches, or to effigies of the pope, are even aware of this? I suspect that even if they were, it would make no difference.
For, in the view of some Muslims, it is not unreasonable to spread their religion by violence, for two reasons: 1) it is the final revelation of God to humanity and 2) the Qur’an enjoins it. To paraphrase Dr. Henry Jones (Indiana’s father): “goose-stepping morons like yourselves should be reading your holy book instead of burning churches.” If they did, they would discover that:

  • Surah Muhammad [47]:3 says “When you meet the unbelievers on the battlefield, strike off their heads….
  • Surah Anfal [8]:12 says “I shall cast terror into the hearts of the infidels. Strike off their heads, strike off the tips of their fingers.”
  • Surah al-Nisa’[4]:74 says “Let those who would exchange the life of this world for the hereafter, fight for the cause of God….”
  • Surah al-Nisa’[4]:56 says “The true believer fights for the cause of God, but the infidel fights for the devil.”
  • Surah al-Nisa’[4]:101 says “The unbelievers are your inveterate enemies.”
  • Surah al-Ma’idah [5]:51 says “Believers, take neither Jews nor Christians for your friends.”

Only in a truly Bizarro world can those passages NOT be an incitement for some to violence, to “evil and inhuman” acts.

9:33 am edt 

Pope's Apology Doesn't Help
By now the cycle of events has become so common as to be banal.
A western speaker makes a provocative comment or remark regarding Islam.  Islamists react in protests, ignoring any context or nuance in the original remarks, intentionally whipping masses of followers into a violent furty. 
The Islamist protests become violent.  Westerners are threatened, or even killed.  Buildings are burned and the Islamists vow "Death" not only to the original speaker but to Western values, the United States, Christianity or whatever other symbol of modernity they can link to the dispute.
Pope Benedict XVI's recent quotation from an obscure midieval text is just the lates example of this cycle.
More than a decade ago Salman Rushdie earned himself a Fatwa by writing a novel that offended muslim sensibilities.  Earlier this year, a series of cartoons published in a Danish newspaper triggered Islamists to wage violent protests across the world, resulting in several burned Danish embassies. 
Several years ago a rumor that U.S. personnel at Guantanamo Bay had urinated on a Koran (that rumor was later shown to be untrue) resulted in several weeks of violent protest.
And yet governments and thought leaders in the West seem not to have learned the lesson of this cycle: apologizing to the Islamists does not work.  The Islamists are using the West's own respect for tolerance and diversity (a respect the Islamists do not share) as a weapon against the West.
Every time the Islamists claim offense and re-start the cycle of violent protest they put the West on its heels.  They intentionally stifle debate and restrict the sphere of discourse in a manner that is calculated to take the initiative away from the West and to limit the grounds on which anyone may criticize muslims, Islam and the war of the Islamists against modernity.
Reacting to the latest series of protests, the Pope issued an apology over the weekend, saying that the midieval quote did not reflect his own thinking and that he was sorry for any hurt the quote may have caused.  Sadly, while his intentions may have been honorable, the Pope's apology did little to quell the protests and merely served as another retreat on the part of the West from the war of ideology that the Islamists, so far, seem to be winning.
In a recent statement, a group calling itself the Mujahideen Shura Council, believed to be a branch of Al-Qaeda-in-Iraq, said, "We tell the worshipper of the cross (the Pope) that you and the West will be defeated, as is the case in Iraq, Afghanistan, Chechnya . . . ".  That same group claimed, "We shall break the cross and spill the wine."
In the southern Iraqi city of Basra, up to 150 demonstrators chanted slogans and burned a white effigy of the Pope, chanting, "We gagged the Pope!" 
The sad fact is, these protesters are right.  By claiming insult and violently demanding and receiving an apology, the Islamists believe they have shown the strength of their faith and the weakness of the West.  Emboldened, they will not hesitate to claim grievances in the future and by repeating this cycle of pretended insult and violent protest, the Islamists will continue to render an honest intellectual discourse difficult.
Even those media outlets generally disposed to favor Western values seem to struggle when confronting this phenomenon.  Today's WSJ, for example, editorializes:
By their reaction to the pope's speech, some Muslim leaders showed again that Islam has a problem with modernity that is going to have to be solved by a debate within Islam. The day Muslims condemn Islamic terror with the same vehemence they condemn those who criticize Islam, an attempt at dialogue--and at improving relations between the Western and Islamic worlds--can begin.
This analysis is commendable in that it correctly identifies Islam's problem with moderning.  It's weakness, however, rests with its proposed solution: asking moderate Muslims to "condemn Islamic terror with the same vehemence they condemn those who criticize Islam."
It is a fool's errand to wait for the army of moderate Muslims to arise and recapture their own heritage.  If Western leaders and thinkers dispense apologies in every criticism they make of radical Islam, why should moderate Muslims (who live among their radical bretheren and are at far greater personal risk) take a chance to speak out in favor of reason and dialogue?
The West must abandon it sensitivity to giving offense.  Respect for diversity, which is a true Western value, is not the same as agnosticism for the truth.  Freedom to speak entails the freedom to offend. 
Western values, like free speech, secular government, freedom of religious practice and representative democracy, are values worth fighting for.  When Western speakers apologize for defending those values, they merely give hope to the Islamists who would destroy those values.
8:02 am edt 

Friday, September 15, 2006

Turkish Ruling Party Compares Pope to Hitler
Responding to the Pope's speech, calling for "dialogue" between persons of different faiths, Salih Kapusuz, a deputy leader of the ruling Islamic party in Turkey said that the Pope:
" . . .  has a dark mentality that comes from the darkness of the Middle Ages. He is a poor thing that has not benefited from the spirit of reform in the Christian world.  . . . It looks like an effort to revive the mentality of the Crusades.
Benedict, the author of such unfortunate and insolent remarks, is going down in history for his words. . . . He is going down in history in the same category as leaders such as (Adolf) Hitler and (Benito) Mussolini.
Continuing that dialogue, muslims in the region held protests and burned pictures of the Pope (see picture below). 
11:41 am edt 

Cross-Examining Patrick Fitzgerald
Victoria Toensing has some tough questions for the independent prosecutor who indicted Scooter Libby for allegedly covering-up a non-crime in the Plame/Wilson affair:
By the time he indicted Mr. Libby on Oct. 28, 2005, Mr. Fitzgerald knew two conflicting facts about the classified nature of the Niger trip: since at least early May 2003, Mr. Wilson was discussing his Niger trip with the press (Nicholas Kristof, the New York Times) and claimed in his July 2003 NYT op-ed that his mission was "discreet, but by no means secret." Yet, the indictment states that around June 9, 2003, the CIA sent "classified" documents to the vice president's office discussing "Wilson and his trip to Niger." If the trip was classified for the vice president, why was it declassified for Mr. Wilson? Did Mr. Wilson violate any law by revealing his trip or did Mr. Fitzgerald choose not to know?
Did Mr. Fitzgerald subpoena Ms. Plame? He could have asked her why, if she were truly covert, was she attending an Eastern Shore meeting in May 2003 with Democratic senators. The first journalist to reveal Ms. Plame was "covert" was David Corn, on July 16, 2003, two days after Mr. Novak's column. The latter never wrote, because he did not know and it was not so, that Ms. Plame was covert. However, Mr. Corn claimed Mr. Novak "outed" her as an "undercover CIA officer," querying whether Bush officials blew "the cover of a U.S. intelligence officer working covertly in . . . national security." Was Mr. Corn subpoenaed? Did Mr. Fitzgerald subpoena Mr. Wilson to attest he had never revealed his wife's employment to anyone? If he had done so, he might have learned Mr. Corn's source.
It is not just Mr. Armitage who should apologize. So should Joe Wilson and Pat Fitzgerald.
8:48 am edt 

Pope Calls for Dialogue: Muslims Respond with Protest
In prepared speech (full text) on the need for "dialogue" between persons of different religious faiths, Pope Benedict XVI quoted a 14th centure Byzantine Emperor on the problem of violent religious conversion:
“Show me just what Muhammad brought that was new, and there you will find things only evil and inhuman, such as his command to spread by the sword the faith he preached.”
The Pope did not endorse this ancient viewpoint, but rather used it as an example of the reaction engendered by religious faiths, such as Islam, that advocate the use of violence to convert believers.
In contrast, the Pope spent most of the speech focusing on the use of reason in faith and how they cannot be separated and are essential for "that genuine dialogue of cultures and religions so urgently needed today."

In response, Muslim clerics, organizations and websites expressed "outrage" over the remarks and demanded that the Pope apologize.  Has the Pope unnecessarily angered Muslims?  Has he been insensitive to the views of this faith?
Hardly.  Read the quotation in the context of the rest of the Pope's speech:
I was reminded of all this recently, when I read the edition by professor Theodore Khoury (Muenster) of part of the dialogue carried on -- perhaps in 1391 in the winter barracks near Ankara -- by the erudite Byzantine emperor Manuel II Paleologus and an educated Persian on the subject of Christianity and Islam, and the truth of both.

It was probably the emperor himself who set down this dialogue, during the siege of Constantinople between 1394 and 1402; and this would explain why his arguments are given in greater detail than the responses of the learned Persian. The dialogue ranges widely over the structures of faith contained in the Bible and in the Koran, and deals especially with the image of God and of man, while necessarily returning repeatedly to the relationship of the "three Laws": the Old Testament, the New Testament and the Koran.

In this lecture I would like to discuss only one point -- itself rather marginal to the dialogue itself -- which, in the context of the issue of "faith and reason," I found interesting and which can serve as the starting point for my reflections on this issue.

In the seventh conversation ("diálesis" -- controversy) edited by professor Khoury, the emperor touches on the theme of the jihad (holy war). The emperor must have known that sura 2:256 reads: "There is no compulsion in religion." It is one of the suras of the early period, when Mohammed was still powerless and under [threat]. But naturally the emperor also knew the instructions, developed later and recorded in the Koran, concerning holy war.

Without descending to details, such as the difference in treatment accorded to those who have the "Book" and the "infidels," he turns to his interlocutor somewhat brusquely with the central question on the relationship between religion and violence in general, in these words: "Show me just what Mohammed brought that was new, and there you will find things only evil and inhuman, such as his command to spread by the sword the faith he preached."

The emperor goes on to explain in detail the reasons why spreading the faith through violence is something unreasonable. Violence is incompatible with the nature of God and the nature of the soul. "God is not pleased by blood, and not acting reasonably ("syn logo") is contrary to God's nature. Faith is born of the soul, not the body. Whoever would lead someone to faith needs the ability to speak well and to reason properly, without violence and threats.... To convince a reasonable soul, one does not need a strong arm, or weapons of any kind, or any other means of threatening a person with death...."
Anyone who feels his faith threatened by this dialogue has no faith, but only a belief in his own moral superiority to be imposed on others by the strength of his own will. 
Muslims who are truly faithful should welcome the Pope's outreach and respond "without violence or threats" but instead with reason.  Those who unite in protest against dialogues like this merely display their inability to respond with reason.  
8:40 am edt 

Wednesday, September 13, 2006

82 Percent of World's Crude Untapped
Can we really be running out of oil if, as a Saudi oil executive claims, only 18 percent of the world's crude oil reserves have been tapped?
This supports the thesis of Peter Huber's most recent book, The Bottomless Well, which claims that technology and the discovery of additional sources of crude will be sufficient to supply the world's energy needs for the forseeable future. 
While those with more background on this issue than me can probably debate the question of how much oil remains untapped, the fact that the question is debatable should put a different gloss on the standard environmentalist claim that we need rigid legal requirements for conservation or increased tax revenues to finance alternative fuels. 
Before jumping onto the regulation (or tax hike) bandwagons, policy makers should factor in the cost of regulation in comparison to the possibility that existing energy supplies and market factors are sufficient to address our needs. 
10:23 am edt 

Weird Al Yankovic for Tort Reform
The rock satirist will feature a song called "I'll Sue Ya" on his latest album, Straight Outta Lynwood, taking aim at the abundance of litigation in our culture. 
7:42 am edt 

Tuesday, September 12, 2006

"Girls Gone Wild" Pleads Guilty
The financially-successful adult video programmer has plead guilty to a number of record-keeping violations in a settlement with the U.S. Department of Justice, together with a deferred prosection agreement with related entities for other counts. 
The deal marks another win for the DOJ in its recently-envigorated prosecution of obscenity cases. 
4:34 pm edt 

Judges Cite Blogs in Rulings
Ian Best's 3L Epiphany blog must have gotten a jump in traffic this week as a result of an article in the National Law Journal that is this week being reprinted in ALM's local distribution arms. 
ALM writer Pamela McLean cited Best's blog post regarding 27 judicial decisions that have cited legal blogs. 
Ian Best is a third year law student whose blog is focused on other legal blogs and the business of legal blogging.  Among his various projects is an ambitious Taxonomy of Legal Blogs, which organizes more than 600 legal blogs into several categories.  (These pages are categorized by Best as a General Legal Blog). 
MacLean's piece mentioned blog citations in Justice John Paul Stevens' dissent in U.S. v. Booker, 543 U.S. 220 (2005) and 9th Circuit Judge Diarmuid O'Scannlain's citation of Eugene Volokh (via Volokh Conspiracy) in Harper v. Poway Unified School Dist., 2006 U.S. App. Lexis 19164. 
7:36 am edt 

Monday, September 11, 2006

Starbucks Sued for $114 Million Over Cancelled Coupon
According to AP, lawyer Peter Sullivan has filed a putative class action with named plaintiff Kelly Coakley of Queens, NY, against Starbucks after Starbucks allegedly refused to honor a coupon for "one free large iced drink".
According to the report, Starbucks circulated the coupon by e-mail to company employees, encouraging them to forward it to family and friends.  The company later retracted the offer, after realizing that the Internet is a pretty powerful distribution mechanism and that the coupon had been sent to many more than the company expected.
Attorney Sullivan claims that his $114 million demand is "a very conservative figure", since it is intended to represent the value of the free drinks denied to persons who presented the coupon over a 38 day period.
(For those who were not math majors, that's $3 million per day over the 38 day period.  With an average price of $3.50 per drink, that's approximately 857,000 free drinks denied each day.)
4:15 pm edt 

Commemorating a War Not Yet Over
Christopher Hitchens captures much of today's zeitgeist for me:
The time for commemoration lies very far in the future. War memorials are erected when the war is won. At the moment, anyone who insists on the primacy of September 11, 2001, is very likely to be accused--not just overseas but in this country also--of making or at least of implying a "partisan" point. I debate with the "antiwar" types almost every day, either in print or on the air or on the podium, and I can tell you that they have been "war-weary" ever since the sun first set on the wreckage of the World Trade Center and the Pentagon and on the noble debris of United Airlines 93. These clever critics are waiting, some of them gleefully, for the moment that is not far off: the moment when the number of American casualties in Afghanistan and Iraq will match or exceed the number of civilians of all nationalities who were slaughtered five years ago today. But to the bored, cynical neutrals, it also comes naturally to say that it is "the war" that has taken, and is taking, the lives of tens of thousands of other civilians. In other words, homicidal nihilism is produced only by the resistance to it! If these hacks were honest, and conceded the simple truth that it is the forces of the Taliban and of al Qaeda in Mesopotamia that are conducting a Saturnalia of murder and destruction, they would have to hide their faces and admit that they were not "antiwar" at all.
7:33 am edt 

A New Narrative on Military Tribunals
The debate on what to do about captured terrorists has taken place largely in the courts and has been conducted by lawyers whose default assumption seems to be that unlawful combatants should be entitled to all the protections given criminal defendants in domestic courts.
Arguments are made that defendants, not just their lawyers, should have access to secret evidence and that they should get Geneva Convention protections though they are classed as unlawful combatants under those conventions. Bush's narrative gives us reason to think about the consequences of indulging such abstract concerns. Consequences like what we saw on Sept. 11.
. . . . .  The emerging narrative of foiled terrorist plots puts the issue squarely before Congress: whether it should prohibit practices that have successfully protected us against terrorist attacks.
7:28 am edt 

Friday, September 8, 2006

Nation Magazine Backs Tort Reform
Well, not exactly, but it is running a column by Liza Featherstone, one of its contributing editors, bashing news of a settlement of a class action against Randon House over its publication of James Frey's A Million Little Pieces.
Frey's book soared in popularity after he got a hero's welcome on Oprah for his (supposed) autobiographical account of his struggle to escape drug addiction.
Subsequently The Smoking Gun revealed that significant portions of the non-fiction book were made up, including its most lurid (and interesting) parts.  At first Frey denied any inaccuracy in the book, but later recanted.  Shorterly thereafter, a putative class action was filed on behalf of all purchasers of the book who mistakenly thought it was true. 
Advocates of tort reform might be expected to respond indignantly to lawsuits like this, but Featherstone's rant might qualify her for membership in the Federalist Society:
The action against Random House also reflects an absurdly consumerist attitude toward reading: when the book -- or author -- isn't what you expected, demand your money back! Bob Woodward presents himself as a crusading muckraker -- can I get a refund for the book in which he acts as a mouthpiece for the Bush Administration? And how about all those novels and memoirs that are billed by publishers as "poignant" and "evocative" when they're actually tedious tripe? Can we send in our receipts for those, too?
A book is usually a layered, ambivalent and highly subjective experience; it's not like an iPod or a car, which either works or doesn't. Some disappointment -- even rage -- is inevitable in a well-read life. Serious, mature readers embrace and engage such reactions; they don't seek to punish anyone for them. Book buyers of America, get a grip.
I can't bring myself to disagree with Featherstone, but I am left wondering why a class action against the publisher of a book -- falsely advertised as non-fiction - is more frivolous that any of the thousands of other non-meritorious suits filed every year.
Should we expect Featherstone at her colleages at The Nation to editorialize hence forward on the failings of class actions brought against paint manufacturers, fast food restaurants, drug manufacturers and others?  Let's just say I won't hold my breath. 
8:24 am edt 

Thursday, September 7, 2006

Gingrich Evaluates Bush on GWOT
In today's WSJ:
His strategies are not wrong, but they are failing. And they are failing for three reasons.
(1) They do not define the scale of the emerging World War III, between the West and the forces of militant Islam, and so they do not outline how difficult the challenge is and how big the effort will have to be. (2) They do not define victory in this larger war as our goal, and so the energy, resources and intensity needed to win cannot be mobilized. (3) They do not establish clear metrics of achievement and then replace leaders, bureaucrats and bureaucracies as needed to achieve those goals.
Gingrich calls on Congress to pass Bush's proposed new law to facilitate military tribunals after the Hamdan decision.  He also calls for a sweeping review of the past five years' efforts on national security and for a realignment of methods and bureacracies with our national objectives.
Beyond this process, however, it is not clear what objectives Gingrich proposes.  Would Gingrich expand the war in Iraq or withdraw?  Would he spend more on airline security or less?  Would he confront Iran and North Korea more boldly, or emphasize more diplomacy? 
7:44 am edt 

Launch of WikiPatents
WikiPatents, a new online community for commenting on patents and patent applications, evaluating their usefulness and suggesting prior art, was launched last week.
According to the organization's press release, WikiPatents claims to be "the first and only web site to enable organized public comment on issued patents and, soon, pending patent applications."
7:35 am edt 

Tuesday, September 5, 2006

What Happens at ATLA, Stays at ATLA
Why is the nation's largest organization of plaintiffs' lawyers afraid to let journalists attend its convention?  David Yas explains
8:15 am edt 

Wise Words from Wilkinson
Judge J. Harvie Wilkinson, III, a judge on the Fourth Circuit Court of Appeals (and charter member of the Supreme Court Short List), offers some wise words on the perils of making gay marriage a Constitutional issue:
Is it too much to ask that judges and legislatures acknowledge the difficulty of this debate by leaving it to normal democratic processes? In fact, the more passionate an issue, the less justification there often is for constitutionalizing it. Constitutions tempt those who are way too sure they are right. Certainty is, to be sure, a constant feature of our politics -- some certainties endure; others are fated to be supplanted by the certainties of a succeeding age. Neither we nor the Framers can be sure which is which, but the Framers were sure that we should debate our differences in this day's time and arena. It is sad that the state of James Madison and John Marshall will in all likelihood forsake their example of limited constitutionalism this fall. Their message is as clear today as it was at the founding: Leave constitutions alone.
7:59 am edt 

Sunday, September 3, 2006

Number 2 Leader of Al-Quaida in Iraq Arrested
According to breaking news reports
8:11 am edt 

Saturday, September 2, 2006

Clinton Years Produced Greater Income Inequality than Bush Years

From today's WSJ:

One sure sign that the economy is doing well is when the left revives that old political warhorse, inequality. With GDP growth of nearly 4% for three years running and a jobless rate of 4.7%, it's their last economic resort in an election year. But when you look at the actual evidence, the inequality campaign also proves to be trumped up.

The Treasury Department will soon release the latest IRS data on who paid how much in taxes in America through 2004. We've had an early look at the numbers, and anyone who reads the front pages of our leading dailies may be surprised to learn that the Bush years compare very well by tax and income equality to the sainted Clinton era.

7:59 am edt 

Friday, September 1, 2006

WaPo Declares End of Plamegate
Today's Washington Post editorializes:
Nevertheless, it now appears that the person most responsible for the end of Ms. Plame's CIA career is Mr. Wilson. Mr. Wilson chose to go public with an explosive charge, claiming -- falsely, as it turned out -- that he had debunked reports of Iraqi uranium-shopping in Niger and that his report had circulated to senior administration officials. He ought to have expected that both those officials and journalists such as Mr. Novak would ask why a retired ambassador would have been sent on such a mission and that the answer would point to his wife. He diverted responsibility from himself and his false charges by claiming that President Bush's closest aides had engaged in an illegal conspiracy. It's unfortunate that so many people took him seriously.
9:12 am edt 

IP Auction
The IP consulting and management firm, Ocean Tomo, LLC, has posted details on its October 26th live intellectual property auction
Past auctions have generated both speculation and controversy.  Detractors claim that the free alienability of patents and other intellectual property fuel unnecessary litigation.  Supporters insist that auctions and other forms of IP commercialization simply facilitate the monetization of intellectual property. 
7:49 am edt 

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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.