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Jonathan Wilson is an
Atlanta attorney with more than 19 years of experience guiding growing private and public companies. He currently serves
as the outside general counsel of several companies and is the former general counsel of Web.com.com (NASDAQ: WWWW) and EasyLink
Services (NASDAQ: ESIC). He is also the founding chair of the Renewable Energy Committee of the American Bar Association's
Public Utility Section.
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Monday, February 26, 2007
The Really Long Good-Bye
Walter Olson asks, in his latest column, whether an enterprising plaintiff could sue Barbara Streisand for her (seemingly) endless "farewell" tour.
Tuesday, February 20, 2007
Supreme Court Strikes $79.5 million Punitive Damages Award Against Philip Morris
10:32 am est
Monday, February 19, 2007
Law and Order
MSNBC asks if NBC's long-running hit courtroom drama, Law & Order, bears any resemblance to the real practice of law.
Thunk, thunk.
No. It's not even close. Let me count the ways:
1. Real cases aren't over in an hour. They drag on for years.
2. Real cases are full of ambiguity. They seldom present pure evil versus pure good.
3. Real judges aren't half as decisive as those on TV. On Law & Order, every time the lawyers have
a question they accost the judge in the hallway. They step aside for 60 seconds and the judge issues a crystal clear
ruling. In reality it often takes months to get a ruling on an issue and even then the ruling may be less than perfectly
clear.
Tuesday, February 13, 2007
Can Guiliani Appeal to Social Conservatives?
Christian conservative leaders will continue to be unhappy with Mr. Giuliani. Richard Land, president of
the Ethics and Religious Liberty Commission, recently laid into the former mayor for a shifting stance on abortion, saying
that a politician who personally believes the practice is wrong but who refuses to ban it is more repugnant than someone who
isn't morally troubled by the termination of a pregnancy.
He's right. But there is little the president can do directly about abortion. In weighing contenders for the party's
nomination, will right-to-life Republicans be more worried about Mr. Giuliani's personal beliefs, or will they find comfort
in his promises to appoint judges in the mold of John Roberts and Samuel Alito, who may actually overturn Roe v. Wade?
If Mr. Giuliani makes a convincing case that he'll also lend his efforts to school choice and other endeavors that will help
win the other culture war under way in American politics--the one against an intransient political culture that is unresponsive
to the demands of the public--Mr. Perkins could turn out to be mistaken.
7:51 am est
Monday, February 12, 2007
Climate Change Inquisition - II
As Fareed Zakaria argues, "The most inconvenient truth about global warming is that we cannot stop it."
He contrasts current efforts at stopping global warming (such as cutting CO2 emissions) with efforts aimed at "adaptation"
(such as reducing or eliminating development near sea level and crop changes in countries likely to experience dryer periods
in the future).
If it's true that even a 60% cut in global CO2 emissions would be required to simply maintain our current level of greenhouse
gases, then any program aimed at simply cutting emissions is doomed to fail. Earth's production of CO2 is increasing
and cannot decrease at any time for at least the next several decades.
If global climate change is a reality, adaptation is the only sensible strategy. Discussing that inconvenient truth
would be a step forward in the debate.
Climate Change Inquisition
AEI covers some of the backlash they've received over their attempts to foster a debate:
Former Vice President Al Gore has proposed that the media stop covering climate skeptics, and Britain's environment minister
said that, just as the media should give no platform to terrorists, so they should exclude climate change skeptics from the
airwaves and the news pages. Heidi Cullen, star of the Weather Channel, made headlines with a recent call for weather-broadcasters
with impure climate opinions to be "decertified" by the American Meteorological Society. Just this week politicians in Oregon
and Delaware stepped up calls for the dismissal of their state's official climatologists, George Taylor and David Legates,
solely on the grounds of their public dissent from climate orthodoxy. And as we were completing this article, a letter arrived
from senators Bernard Sanders, Pat Leahy, Dianne Feinstein, and John Kerry expressing "very serious concerns" about our alleged
"attempt to undermine science." Show-trial hearing to follow? Stay tuned.
Consumer Protection Gone Haywire in Ohio
Jones Day has a new backgrounder on the state of confusion now reigning over consumer protection laws in the State of Ohio.
As the piece describes, the crisis began when the Ohio Supreme Court permitted a plaintiff to recover noneconomic damages
in a claim under the Ohio Consumer Sales Practices Act ("CSPA") in Whitaker v. M.T. Automotive, Inc.
The CSPA had traditionally been used by the state's Attorney General to shut down deceptive and unfair consumer business
practices. In Whitaker, however, the Ohio Supreme Court allowed an aggrieved plaintiff to use the CSPA to recover
more than $300,000 in noneconomic damages in a case where his economic damages were less than half that.
In response, the Ohio legislature passed a law that limited noneconomic damages under the CSPA to not more than $5,000
(with such amount to be trebled in certain aggravated circumstances). The bill became law without the governor's signature,
except that when the new governor was seated after the first of the year, he asked for the bill to be returned which he then
vetoed.
The Ohio legislature has now sued to overcome the governor's putative veto (arguing, among other things, that a constitutionally-mandated
period of time has passed before the veto occurred, thereby nullifying it).
The upshot is that Ohio law on consumer protection and the scope of liability for businesses in that state is very much
unsettled.
Look for a rash of claims to be filed in that state before the constitutional crisis is resolved.
Why the European Economies Lag
8:11 am est
Friday, February 9, 2007
Georgia Social Networking Bill
State legislators in Georgia have proposed a bill that would make it illegal for the operator of a "social networking
website" to permit a minor to maintain a webpage on the site without the consent of the minor's parents.
16-9-171.
(a) It shall be illegal for the owner or operator of a social networking website to allow a minor using
a protected computer to create or maintain a profile web page on a social networking website without the permission of the
minorīs parent or guardian and without providing such parent or guardian access to such profile web page at all times.
(b)
Any person violating this Code section, upon conviction, shall:
(1) On the first offense, be guilty of a misdemeanor of
a high and aggravated nature; and
(2) On the second and subsequent offenses, be guilty of a felony and shall be sentenced
to imprisonment for not less than one nor more than five years, to pay a fine of not more than $50,000.00, or both."
Anyone with children can empathize with the intentions of these legislators. The problem of child predators
is a serious one and parents should be involved in their childrens' Internet usage and actively educate their children about
safe Web surfing.
But how could a law like this possibly work? How can the operator of a social networking website possibly
know the age of any of its users?
This bill tries to eliminate the problem through wishful thinking. Because a website owner cannot
know the true name, age or other identifying information of any online user, the bill will require online users to create
a paper trail that must be physically delivered to the website operator. (I.e. "If you are under 18, before you can
use this site you must print out and complete the attached parental consent form, have your parent sign it and then mail the
form, with a photocopy of your parent's driver's license to . . . . ")
This kind of offline verification of identity is simply not feasible for a website that takes on thousands of
new members each day.
In addition, because a website operator cannot know the geographic location of its members the bill would have
the practical effect of criminalizing social networking sites everywhere.
Popular social networking site MySpace, for example, prohibits persons under the age of 14 to become members. By signing up for a MySpace account, the individual
user affirmatively represents to MySpace that he or she is of age.
The Georgia bill, however, would threaten the owners of MySpace with criminal sanctions if its
online sign-up process failed to prevent an underage user from getting an account.
Putting the threat of criminal sanctions on website operators will not ensure child safety on the web.
A more responsible and realistic approach would be to require all social networking sites to prohibit minors from obtaining
pages without parental consent but create a safe harbor for website operators that adopt reasonable precautions.
Responsible operators that do their best to keep children safe shouldn't be penalized when their procedures fail
to provide 100% safety. Operators that take no precautions, however, would be penalized.
The real menace is not the website operator, but rather the online predator. Penalizing website operators
will not help law enforcement catch the online predators.
Monday, February 5, 2007
Debate on Global Warming Now Over: Science Beware
Tim Wirth, President of the United Nations Foundation and one of the driving forces being the U.N.'s recently-release
report on climate change famously claimed last week that "the so-called and long-overstated 'debate' about global warming is now over."
Except that it's not. As the Wall Street Journal points out, one of the most notable things about the U.N's latest report is how much it backpedals from previous reports.
For example, in 2001 the U.N claimed that the world's oceans could rise as much as 36 inches in the next 100 years.
Now, that estimate is revised downward to 17 inches.
That may not sound like much, but it means that a U.N. claim, which was held out as undeniable five years ago, is now
believed to be off by 50%. What will the estimate be five years from now?
And while the U.N. now claims that human sources are "very likely" the cause of the 1 degree Celsius rise in global temperatures
over the past 100 years, "very likely" is not very comforting when it comes to making policy decisions based on science.
The kinds of energy policies the climate change activists would foist on the world in the hope of stopping climate change
would change the life of mankind on earth for hundreds of years. Talk of reducing carbon emissions implies significant
changes in the way human beings create energy.
The debate over climate change -- and obviously that debate is not over -- has not focused on the solutions the anti-emissions
activists would have us enact. If emissions are the problem, is nuclear power the answer? Many of those who back
caps on carbon emissions are the same activitists who picket outside nuclear power plants.
If both carbon-based fuels and nuclear power are discouraged, what remains? Wind and solar power? It would
be lovely if we could power the plan on the wind and the sun, but so far it simply isn't feasible.
But even if it were feasible, there are environmentalists who oppose the widespread use of windpower because of its impact
on bats and birds.
The debate on climate change not only isn't over, it really hasn't begun. Any debate on energy policy must weigh
the costs and benefits of the alternatives. So far, the mainstream medium has done little but focus on the perceived
costs of carbon emissions. In reality, all human activity on the planet imposes "costs" in the sense that the planet
is altered. Which costs are preferable to others ought to be the stuff of debate.
Until we can speak sensibly about the choices involved in energy policy, the global climate debate cannot really begin.
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Phone: 404-353-4833 | jbw@jonathanbwilson.com
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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.
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