Jonathan B. Wilson

Legal Resources
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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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Tuesday, June 29, 2010

Supreme Decisions

The Supreme Court yesterday cleared the decks in a major way, issuing a number of key decisions.

Patents: Bilski v. Kappos

In Bilski v. Kappos the Supreme Court affirmed the ruling of the Federal Circuit, holding that an application for a "process" was not patentable.  Importantly, though, the Supreme Court rejected the "machine-or-transformation" rule adopted by the Federal Circuit and instead suggested that there was a broader scope of processes that might be subject to patent protection.

The decision leaves patent practitioners with a fair amount of ambiguity n their hands, suggesting that inventors may still find ways to obtain patent protection for processes that are not solely tied to a particular machine or transformation.

Gun Bans: McDonald v. City of Chicago

In McDonald v. City of Chicago, the Supreme Court reversed the Seventh Circuit, holding that the 14th Amendment incorporates the individual right to bear arms found in the 2nd Amendment and that a City of Chicago ordinance that effectively banned the individual ownership of handguns was therefore unconstitutional. 

The decision will make it very difficult for states and municipal governments to enact strict handgun ordinances.  While they may require licensing, an outright ban or a licensing requirement that has the effect of banning gun ownership will likely be struck down.

Sarbanes-Oxley: Free Enterprise Fund v. Public Company Accounting Oversight Board

In Free Enterprise Fund v. Public Company Accounting Oversight Board the Supreme Court struck down a key procedural element of the 2002 Sarbanes-Oxley Act ("SOX"). 

SOX had established the Public Company Accounting Oversight Board ("PCAOB") as an independent entity to create accounting rules for public companies subject to the reporting requirements of SOX.  To ensure political independence for the PCAOB, SOX made it impossible for members of the PCAOB to be removed by Congress or the Executive.

The Supreme Court held that it was an unconstitutional delegation of powers to assign a legal rule-making function to an entity that was not subject to the authority of Congress or the President. 

While SOX remains the law of the land for now, the ruling is a significant problem for the law, as Congress will now need to adopt a new law to provide for the staffing and oversight of the PCAOB.  In combination with criticism of SOX, from both Congress and the SEC, that it is overly expensive and burdensome for smaller companies, the ruling may create the impetus for a significant amendment to the law, the narrows its scope or limits its applicability only to larger companies.

7:47 am edt 

Monday, June 28, 2010

Senator Robert Byrd Dies at 92
West Virginia Senator Robert Byrd has died age 92

Byrd was the longest-serving Senator in U.S. history, serving in the Senate since 1958 until his death. 

Byrd was a conservative Democrat who saw himself as a guardian of the Constitution and the Senate's rules.  He kept a copy of the Constitution in his pocket and would often make speeches in the Senate on its rules and traditions.

Early in his life he was a member of the Ku Klux Klan and was elected the Grand Cyclops of the West Virginia Ku Klux Klan.  He later withdrew from that organization and apologized for his membership in it.

In 1964 Byrd filibustered against the Civil Rights Act for more than 14 hours and voted against it.  Decades later he apologized for that action and said that he regretted it. 

Byrd's death comes at a critical time politically, as the Obama administration is trying to complete several items of landmark legislation before the mid-term elections in November.

Under West Virginia law, the West Virginia Governor will be able to appoint Byrd's successor to the Senate.  West Virginia Governor Joe Manchin is a Democrat, but a conservative one.  He is described as "pro-life" and a member of the National Rifle Association.

The Obama administration will need a 60th Democratic Senator to avoid a filibuster on financial regulatory reform, and any legislation on climate change. 
7:56 am edt 

Sunday, June 27, 2010

Pawlenty to Campaign for Nikki Haley

Minnesota Governor Tim Pawlenty will be travelling to Spartanburg, SC for a fundraiser for Nikki Haley, the Republican nominee for Governor. 

Pawlenty is frequently-mentioned as a possible Presidential candidate for 2012.  Nikki Haley would be the first woman Governor of South Carolina and also the first Governor of Indian ancestry. 
7:46 am edt 

Sam Olens for Georgia Attorney General
This year is one of those rare years in Georgia in which we have no incumbent running for Attorney General. As a result, we have a unique opportunity to choose a new direction for the State's legal department and a rare opportunity to choose a leader for our State's legal issues.

I'm endorsing Sam Olens for Georgia Attorney General.

Sam Olens has practiced law in Georgia for more than 25 years, successfully representing clients in both state and federal courts. Olens has been a partner of Olens & Ezor, PC since 1983. He is a registered mediator/arbitrator with the Georgia Office of Dispute Resolution. Olens was board certified in Civil Litigation by the National Board of Trial Advocacy in 2000 and is a Fellow of the Lawyer's Foundation of Georgia.

As Chairman of the Cobb County Board of Commissioners since 2002 and Chairman of the Atlanta Regional Commission since 2004; Sam Olens worked tirelessly for regional and statewide solutions to Georgia's top issues, including Georgia's water issues.

Olens is also Vice Chair of the Metropolitan North Georgia Water Planning District. In 2003, he was appointed by Governor Sonny Purdue to represent the 6th congressional district for Georgia's Department of Community Affairs.

Sam Olens brings a practical approach to the practice of law and to Georgia's legal needs. He is a family man and a practicing lawyer who knows how to solve real problems. He is the kind of lawyer we need as our next Attorney General.
7:31 am edt 

Saturday, June 26, 2010

Republicans Push to Repeal Jones Act
Republicans Senator John McCain and Congressman Charles Djou have introduced legislation to repeal the Jones Act, the 1920s-era law that prohibits foreign ships from operating in U.S. waters wiithout hiring U.S. crews.

McCain and others claim that foreign ships could be engaged in assisting the Gulf oil clean-up if not for the 90-year-old law. 

President George W. Bush waived the Jones Act two days following Hurricane Katrina to speed relief to the Gulf states but 66 days after the BP oil spill began President Obama has refused to follow suit. 

The Obama administration has reportedly turned down offers of assistance from 11 countries.
7:39 am edt 

Friday, June 25, 2010

Financial Regulation Bill

The White House and Congressional Democrats came to an agreement on the shape of a financial regulation bill

Details will leak out in the coming days, but in general the bill will be tougher on large banks and financial institutions than both the industry and the Treasury Department intended several months ago.

Expect large financial institutions to spin off their proprietary trading functions and for a greater level of governmental involvement in the banking industry. 
9:16 am edt 

Tax Extenders Bill Fails Again

By a vote of 57-41 the Senate failed to move forward with a tax extenders bill.  As a result, the many businesses that rely on tax credit programs that expired last year will continue to wait for Congressional action.

The failure is especially painful for cellulosic ethanol and renewable fuels companies whose tax credit programs expired on December 31, 2009.  Many of their plans were shut down or curtailed at the end of 2009 and have now been idle or slowed for half the year.  Even if an extension of the credit through 2010 were passed in July it might be too late to salvage any meaningful operations in 2010.

8:53 am edt 

Thursday, June 24, 2010

Confidence Waning in Obama
According to a new poll commissioned by NBC and the Wall Street Journal: 

* 62% believe the country is on the "wrong track"

* Just 1/3rd think the economy will get better in the next year

* 17% of Democrats approve of Obama's administration

* 30% say they "do not really relate" to Obama

* only 40% rate Obama positively in his "ability to handle a crisis" -- an 11 point drop since January

* Enthusiasm gap:  Only 44% of Obama voters plan to vote in the mid-term elections while 71% of McCain voters say that they will vote.
10:43 am edt 

Wednesday, June 23, 2010

Obama Sacks McChrystal

Resignation accepted

2:33 pm edt 

Harry Potter and the Deathly Hallows (Part I)

Hollywood News is reporting that the trailer is set to debut next week. 

1:46 pm edt 

Monday, June 21, 2010

Dems Get Sticker Shock
ABC News reports:

"In a major shift in congressional politics, Democrats have developed a severe case of sticker shock, just as many of their colleagues press to prime the pump of the economy in time for the mid-term congressional elections.

Now, even popular initiatives with widespread support -- notably an extension in unemployment benefits for those who have been out of work for more than a year, plus $50 billion the White House is asking for to help avert state layoffs of teachers and law enforcement officials - are stalled inside Congress."

If House Democrats are getting sticker shock, just imagine how the rest of the country must fee.  The current Congress is substantially more liberal than mainstream America, in part because of the landslide won by Democrats in 2008.

Democrats may try to pivot to appear more moderate to voters in the Fall but this will be hard to do given the current Congress' record of spending. 

7:56 am edt 

Sunday, June 20, 2010

Napolitano Proposes Web Surveillance of U.S. Citizens
Candidate Obama attacked President Bush during the election as curtailing civil liberties in the global war on terror.  Obama's chief of homeland security, however, recently proposed surveilling U.S. citizens' web usage in order to fight "homegrown" terrorism. 
7:42 am edt 

Saturday, June 19, 2010

Another Bush / Katrina vs. Obama / Gulf Comparison
Ted Frank writes that President Bush was able to waive provisions of the Jones Act that would have inhibited foreign aid on Day 3 while the Obama administration still hasn't waived the Jones Act 60 days into the crisis.  Frank writes:

"Given that the only purpose of the Jones Act is 1920-era protectionism of special interests against foreign competition at the expense of the American consumer, and given that this could be done with the stroke of a pen, this should be a much bigger scandal. But it appears that the Obama administration is stonewalling on the issue by falsely claiming that a Jones Act waiver would not make any difference; after all, if they do waive the Jones Act, and the public sees how much additional help European allies could have been providing all along, the comparison with the Bush administration will become even more unfavorable."
7:10 am edt 

Thursday, June 17, 2010

Broder on Obama: Impotence
Reliably left-of-center Dean of Washington Journalism David Broder appears to have turned on "The One":

"But Obama seems focused on the relatively insignificant. With the administration and Congress whipsawed between those calling for more government-financed stimulus and those warning of deficits soaring out of control, the president has weighed in belatedly on the side of more stimulus spending."

"Those involved in the fight in the Senate will tell you that Obama might have had more success with his plea had he made it earlier, before the Senate passed its own version of an emergency spending bill. At this point, Republican and conservative Democratic opposition put the 60 votes needed to expand Sen. Tom Harkin's measure beyond reach."

"So action has shifted to the House side, where Obama's plan to bail out state and local governments by financing more unemployment benefits and hiring of teachers and others threatened with layoffs has been steadily whittled into insignificance."

"While Obama asked for stimulus spending that might add $80 billion to the deficits over the next decade, opposition from budget-conscious members of both parties has reduced the package being discussed by House Majority Leader Steny Hoyer to about $10 billion -- and some of this might be offset elsewhere in the budget."

""They're fighting over $10 billion, while $1.8 trillion is sitting out there," Cooper exclaimed."

"While some claim the fiscal crisis in the states is exaggerated, Tuesday's edition of, the Web site that covers the 50 capitals, featured as its top 10 headlines reports from California, Colorado, Connecticut, Hawaii, Illinois and Louisiana, detailing how they are "still struggling" with reduced revenue, lowered credit ratings, employee furloughs and stubborn unemployment."

"Obama may be excused for impotence in the gulf. But no president can escape responsibility for the budget and the economy."

8:09 am edt 

Wednesday, June 16, 2010

Obama's Malaise Speech
Heritage Foundation connects the dots between Obama's dud of a speech last night with Jimmy Carter's (infamous) malaise speech. 

It was on July 15, 1979 that President Carter said:

"Energy will be the immediate test of our ability to unite this nation, and it can also be the standard around which we rally. On the battlefield of energy we can win for our nation a new confidence, and we can seize control again of our common destiny."

Ultimately, he was wrong, and the American people shifted in their perception of his leadership.

Last night's speech offered little in the way of leadership and provided no roadmap for cleaning up the spill.  Instead the President put into practice Rahm Emanuel's maxim of never letting a good crisis go to waste and offered up cap and trade legislation and other policy alternatives that have little relation to fixing the problem in the Gulf.

The President's new low in this morning's polls suggests this may prove to be the moment when he lost much of the country's faith in his ability to accomplish the nation's work. 
10:04 am edt 

Obama's Oval Speech a Dud

I expected to checkout the usual blog roll of conservative columnists this morning to find that they hated Obama's Oval Office speech on the oil spill.  I didn't expect to see so many liberal columnists doing the same thing:

Joan Walsh at Salon said she was "underwhelmed" and that his plan to take charge was "just words."

Reliably liberal Robert Reich said that Obama was "wishy-washy".  He wrote:

"The man who electrified the nation with his speech at the Democratic National Convention of 2004 put it to sleep tonight. President Obama's address to the nation from the Oval Office was, to be frank, vapid. If you watched with the sound off you might have thought he was giving a lecture on the history of the Interstate Highway System. He didn't have to be angry but he had at least to show passion and conviction. It is, after all, the worst environmental crisis in the history of the nation."

The headline writers at Huffington Post called it a "junk shot" while Jason Linkins asked, "What was the point of that terrible speech?"

If that's what the Democratic base has to say about Obama's speech I'm almost afraid that my firm's content filters won't let me read what the conservatives have to say.  Is it simply impolite to pile on?

The President could have offered a dozen proposals to address the spill but instead he went on a search for root causes.

If we didn't use oil we would have been drilling, so let's encourage renewable energy.  (I'm all for renewable energy but anyone who spends five minutes researching the topic knows that we are several decades away from shifting a meaningful portion of our total energy consumption from oil to non-fossil fuels.  By all means we should get started, but renewable energy is a long-term solution for energy consumption and not a short-term alternative to the need for drilling.)

The oil spill has put thousands out of work and caused billions of dollars in damages, so let's create a BP-funded slush fund to dole out cash.  Yikes!  Didn't the last two bail-outs teach us that the government is not a fund manager?

By all means let's require BP to clean up its own mess, but the last thing we should want to see is another government slush fund run by politicians.  Create a slush fund today and begin the independent counsel investigation into fraud and conflicts of interest in about five years.

A sad commentary.

If Obama can't pull it together soon, we're going to have a very long wait until 2012.

7:31 am edt 

Tuesday, June 15, 2010

Obama's Attack on Press Freedom
Dick Morris has his own take on the Obama Administration's plan to subsidize the news business.  It's alot like my own
7:51 pm edt 

Do Laws Even Matter Anymore?
Jonathan Turley was a young law professor when I was passing through GW Law School and he is now one of its senior professors and a frequent writer.  I don't always agree with him but he always has a well-argued position that is tough to refute.

Turley gets it right today with his piece in USA Today when he asks, "Do Laws Even Matter Today?"

Americans feel the noose of law and regulation closing in on them.  A mortgage application can be many pages long with dozens of questions and the legend below your signature says that it is a crime to make an intentional mis-statement in the application.

Taxes seem to go up every year and the IRS announces stepped up enforcement to find tax cheats.

But when executives of the world's largest corporations mis-manage those corporations and spark a global recession, the corporations are bailed out and many of those executives get lucrative bonuses. 

What Turley describes is a crisis of faith:

"A legal system cannot demand the faith and fealty of the governed when rules are seen as arbitrary and deceptive. Our leaders have led us not to an economic crisis or an immigration crisis or an environmental crisis or a civil liberties crisis. They have led us to a crisis of faith where citizens no longer believe that laws have any determinant meaning. It is politics, not the law, that appears to drive outcomes - a self-destructive trend for a nation supposedly defined by the rule of law."

Turley is no conservative, but his description of this crisis of faith demands a conservative solution: restore the rule of law.
8:51 am edt 

Monday, June 14, 2010

A Line in the (Tar-Soaked) Sand

The Obama Administration over the weekend gave BP a 48 hour deadline to come up with a "more aggressive" plan for reducing the flow of oil from the Deep Water Horizon. 

The deadline has come and gone.  Now what?

The problem with deadlines is that, when they pass, the giver of the deadline has to be prepared to do something and it is not at all apparent that the Obama Administration can do anything. 

It's like the old saw of the unarmed policeman who said to the fleeing gunman "Stop or else I'll shout 'Stop" again." 

7:09 am edt 

Saturday, June 12, 2010

Counting Senate Votes on Climate Bill
The NYT analyzes the vote on the Murkowski amendment to try to determine whether supporters of the climate bill, that would cap carbon dioxide emissions, have a path to obtain 61 votes in support.
7:06 am edt 

CNN reports that a French vessel has rescued 16-year old Abby Sunderland.  Sunderland was trying to circumnavigate teh globe solo in a sailboat when she encountered rough weather and lost her communications equipment.  
7:00 am edt 

Friday, June 11, 2010

Fisher & Phillips Raises Associate Salaries $10K
Are good times here again?  Associates at Fisher & Phillips got a $10,000 raise, half in base salary and half in a year-end bonus. 
10:19 am edt 

Senate Rejects Murkowski Amendment: No Restriction on EPA's Regulation of Carbon Dioxide Emissions

By a vote of 53-47 the Senate rejected an amendment proposed by Lisa Murkowski (R-AK) that would have prevented the EPA from imposing restrictions on the ability of power plants and large factories to emit carbon dioxide.

The Murkowski amendment was opposed by environmentalists and the Obama administration. 

The move clears the way to bring the climate change bill to the Senate floor.

8:55 am edt 

Thursday, June 10, 2010

Nikki Haley and the Face of the South
As someone who grew up in the North (Pennsylvania) but who has lived most of his adult life in the South (Virginia and Georgia) I think I have a good 'bead' on Southern attitudes.  Tunki Varadarajan does as well.

In today's post he compares the success of Nikki Haley and Bobby Jindal (who are both of Indian ancestry) as conservative politicians in the South with the perception of racial prejudic in the South (especially among conservatives).  He writes:

What explains the success of Jindal and Haley in their respective states? In posing this question, I hint, of course, at the South’s lingering reputation for racial intolerance; and who can deny that the two states in question have not always been at the forefront of America’s historical striving for racial amity?

One answer is that these two politicians are consummate conservatives in a milieu that rewards political conservatism, and that their success is a validation of their ideology and intelligence. Their ethnicity, in other words, is an irrelevance. This view was expressed, in effect, by a friend—a law professor in Tennessee—when I asked him why he thought Indian-American conservatives were doing so well in some Southern states: “There are lots of Indians in the South, and they work hard and do well. Why wouldn’t people like 'em, especially when they work hard at politics and espouse conservative, capitalist, pro-family views?”

The myth of the prejudiced Southern male is overblown and antiquated.  The bigotry of "To Kill a Mockingbird" may have existed 80 years ago but is just not part of Southern culture today.

Bobby Jindal, Nikki Haley and other non-white conservaitve politicians bear this out. 
8:40 am edt 

Government in the Land of Oz

Henninger gets it right today: Watching Government's response to the BP oil spill is watching Government in the Land of Oz.

Obama was elected on his promises to "mend lives" and "save the planet".  But watching the oil gush out of a well just a chopper ride from New Orleans forces one to realize that government's ability to make things happen is extremely limited.

The problem was not a lack of regulation.  Oil rigs are regulated out the ying-yang.  Wells don't get drilled until numerous government agencies have issued permits, studies have been conducted and environmental impact plans have been filed. 

The problem is that the mechanism of government regulation is severly limited in its capacity to effect an outcome.  Government puts a process in place -- and policies that process -- but has no involvement in effecting an outcome.

The BP oil spill response plan is a great example.  At more than 500 pages of length it was an exhaustive description of what BP would do in the event of an oil spill like the one we now see.  It was required by government regulation and reviewed (and approved) by government regulators.

But it didn't work.  Much has been made of the flaws in the plan: It listed endangered animals that music be protected (like seals and walruses) except that those animals live nowhere near the Gulf of Mexico.  (Someone did a bad cut and paste job).

It listed "got to" environmental experts who would be on stand-by for consultation.  Except that the experts listed had been dead for years. 

It provided emergency phone numbers that turned out to be non-working. 

So BP followed the rules and the duly-empowered government regulators looked over their shoulders and failed to spot errors that should have been obvious.

If government can't spot a bad cut and paste job, how is it going to "mend lives" and "save the planet"?
7:30 am edt 

Wednesday, June 9, 2010

Unions Flush Millions on Election Bid
Heritage Foundation reports that the AFL-CIO, SEIU and AFSCME poured millions of dollars into the Halter / Lincoln runoff in Arkansas, only to lose it all when Lindoln prevailed.

The toilet metaphor, interestingly enough, does not come from the conservative Heritage Foundation, but rather comes from an unnamed White House office who told Politico: "Organized labor just flushed $10 million of their members' money down the toilet". 

And where does organized labor get its money?  It turns out that, for the first time in the history of the United States, a majority of union members work for the federal, state or local governments.

We're seeing the beginning of a very sick cycle.  Government expands by hiring increasing levels of employees.  Government adopts policies that encourage the unionization of its employees.  Unionized government employees spend dues on electing politicians who will further increase the size of government.  Those politicians then expend government by hiring increasing levels of employees . . . . .
10:36 am edt 

Natural Gas in Peru
 In Peru, a dispute between domestic purchasers and foreign developers has erupted over the disposition of natural gas resources, according to The Economist.  The Camisea gas field has substantial reserves that could be used to generate local electricity but production contracts dedicate much of the gas production to a liquified natural gas (LNG) pipeline for processing in Mexico.  The receiving plant in Mexico is not yet ready to receive the LNG, however, so much of the production capacity of the field remains untapped.
9:00 am edt 

Super Tuesday Sets Stage for Fall Elections
Blanche Lincoln (D-AR) gets the Democratic nomination but is facing an uphill challenge in the Fall. 

In South Carolina, Nikki Haley captures a plurality but will need to prevail in a run-off before getting the GOP nomination for Governor. 

In California, former eBay CEO Meg Whitman captures the GOP nod for Governor and begins her challenge to Jerry Brown to see who will win the job of trying to save California from bankruptcy.

Also in California, former HP CEO Carly Fiorina won the GOP primary to take on incumbent Senator Barbara Boxer.

In Nevada, tea party favority Sharron Angle won the GOP nomination to take on Senate Majority Leader Harry Reid. 

In Georgia, tea party-backed Tom Graves won a special election to the House (GA-9) to serve the remaining term of Nathan Deal who resigned to pursue the Governor's seat. 
8:13 am edt 

Tuesday, June 8, 2010

Atlanta Cities Looking to form PACE Financing Districts
MyGreenAtlanta reports that Atlanta, Decatur, Savannah and Tybee Island are all looking to form PACE financing districts to take advantage of the PACE method of financing renewable energy and conservation projects.

Forming a PACE financing district requires a Georgia municipality to form a "downtown development authority" following the Development Authority Act in O.C.G.A. 36-42-1. 
11:19 am edt 

Cautionary Tale of Lawyer Discipline
A recently reported case from the Georgia Supreme Court involving lawyer discipline should remind lawyers of the high price to be paid for dishonesty and should remind the public -- at least in the Peach State -- that attorney self-discipline is alive and well.

In the case of Michael J.C. Shaw, Mr. Shaw, an attorney since 1999, sought voluntary discipline after he was discovered to have embezzled roughly half a million dollars from his former law firm. 

According to the court's opinion, Mr. Shaw created fictitious invoices for his form from non-existent private investigators or title search firms and deposited the resulting checks to his own account.  When his wrongdoing was discovered his employment was terminated but Mr. Shaw cooperated with the firm's investigation and repaid all of the amounts he had taken.

In mitigation, Mr. Shaw claimed that he suffered from depressive disorder resulting from several deaths in the family and his wife's health problems.  He presented affidavirs from a therapist and a counselor as to his desires to learn from his mistakes.

Mr. Shaw had earlier petitioned the Georgia Supreme Court for a 6 to 12 month suspension of his law license.  The court rejected that petition, saying that the duration of the suspension was too short in light of the extent of the wrongdoing.

In his more recent petition, Mr. Shaw requested a suspension of two to four years.

In this latest opinion the Georgia Supreme Court again denied the request, saying that it was "an inappropriate sanction in view of the scope and extent" of Mr. Shaw's wrongdoing.

Unlike some other well-known cases of wrongdoing (Bernie Madoff, etc.) Mr. Shaw would seem to have several factors in his favor: He promptly confessed, he made full restitution and his conduct after the fact has reflected remorse.  There are no remaining victims of his wrongdoing who have not been made whole. 

Nevertheless, the public has a right to expect that licensed attorneys are scrupulously honest and the Georgia Supreme Court has taken a hard line against lawyer dishonesty. 

One would wish Mr. Shaw well on his road to recovery and redemption.  At the same time it is refreshing to see an institution like the Georgia Supreme Court take so seriously its role as the defender of public trust. 
9:33 am edt 

Obama Kicks Ass?
The President is said to be "seeking ass to kick" over the disaster that is the BP oil spill. 

In what parallel universe does everyone believe this is not a scripted "make the President look emotional" press release?

The President has been criticized for his administration's response to the spill because it was slow, underemphasized and ineffective.  Some have called it Obama's Katrina.

A better analogy would be Obama's hostage crisis

The Iranian hostage crisis, which lasted 444 days and included President Carter's aborted attempt to rescue the hostages with a commando raid in the middle of the night, undid the Carter presidency.  Americans felt helpless when their countrymen were held hostage by Iranian revolutionaries and it seemed that nothing the Carter administration did could gain their freedom.

Today the Gulf coastline is held hostage by the tarballs that are coming ashore and the oil slick that seems to grow daily and nothing the Obama administration does is making it better.

Just as the newspapers did in 1979, keeping a running tally of the days elapsed since the crisis began, websites and cable news today are tracking the days elapsed since the spill began.  All estimates point to the spill continuing, in at least some form, for a month or more.  The clean will take months longer. 

The crisis in the Gulf may not last 444 days, but it has as much potential as the hostage crisis to drag down the Obama administration.  President Carter could do little to persuade, threaten or implore the Iranian militants to release the hostages, but the spill in the Gulf is within a short airplane ride from the White House. 

If the Obama administration has no ability to affect the spill or its cleanup, why should voters believe it has the ability to affect other problems? 
9:06 am edt 

Monday, June 7, 2010

The BP Oil Spill: Never Let a Good Crisis Go to Waste

In a twist on Rahm Emanuel's infamous dictum, the SEC is now warning that scam artists are promoting "oil spill stock schemes" to defraud investors with phone business plans relating to the Gulf oil spill. 

9:42 am edt 

Georgia Adopts PACE Legislation
Georgia Governor Sonny Perdue has signed H.B. 1388, authorizing the creation of PACE financing districts in the State. 

PACE - or "property assessed clean energy" - financing, allows property owners to borrow money from a state financing district where the loan is secured by a lien on the borrower's real property.  The loan must be for an approved purpose (in Georgia's statute, either water conservation or the generation of renewable energy) and must be repaid on the terms specified.

One of the advantages of the program is that it does little more than create liquidity for borrowers.  The loan runs with the land, so if the land is sold the lien remains on the property.  In most states the PACE lien ranks with a state tax lien, so the PACE financing district will have priority over a mortgage lender or subordinate lender. 

The program encourages renewable energy by making loans available to property owners on a long term basis.  Few, if any, banks or commercial lenders are willing to make loan term loans for the financing of renewable energy. 

The Georgia legislation makes PACE financing possible through the downtown development districts that are authorized by O.C.G.A. 36-42-3.  A county or municipal government that wants to engage in PACE financing will need to follow the same process as it would otherwise follow to create a downtown development district. 
7:37 am edt 

Sunday, June 6, 2010

More on the FTC Power Grab to Reinvent Journalism
Joseph Smith at American Thinker identifies a host of potential unintended consequences from letter the government subsidize journalism:

* Tighten copyright law on newsaggregators and fair use restrictions;

* Strengthen laws on the "hot news doctrine" whereby facts gathered at considerable expense are protected from "free-riding"

* Expand antitrust exemptions to allow news organizations to jointly agree to build copyright or licensing walls;

* Expand the copyright office to enforce a license fee on content downloads, similar to that in the recording industry;
*  Increase funding for public broadcasting;

* Establish a "journalism" division of Americorp, complete with cub reporters on the government payroll; and

*  Add a tax return check-box, a fund for local news, increased postal subsidies and university grants for investigative journalism. 

The most obvious consequence (and I struggle to say "unintended") would be the concentration of news-writing into those outlets favored with government largesse.  Does anyone seriously believe that this new fourth estate would not be beholden to the political masters who would dole out the cash?

For years the Federal Communications Commission has struggled with its role as the licensor of radio and television station licenses.  (Quaint Irony:  When was the last time anyone tuned into television via the radio waves that are licensed by the FCC? )   

The argument we heard over and over in that debate was that diversity of ownership was essential to the diversity of newsgathering and news reporting.  Let two of the television stations in one area be owned by a single corporate owner, some argued, and that owner will "control the news" in that particular area.  (Here's a piece from Common Dreams in 2005 arguing that GE's ownership of NBC colored NBC's report -- in a positive way?? -- on the Iraq War). 

And yet the FTC's proposal, funding news gathering and news reporting via government, would effectively nationalize a huge swath of the news industry, doing far more damage to diversity of ownership than the FCC's duopoly rules. 

Funding the news through tax revenues or other public sector means is merely the first steps towards the creation of a national news service with an inherent bias in funding its own continuing existence. 
4:47 pm edt 

Government Power Grab: The FTC Plan to Bailout Newspapers
The recently-published FTC staff report on "reinventing journalism" is perhaps one of the most misguided efforts by the government in recent years (and that's saying something). 

Newspapers are a dying industry.  Like the buggywhip and the Betamax video cassettee, the day is soon approaching when the last newspaper is printed. 

Change is painful and change is frightening.  One of the many misimpressions of the current administration, however, is that it is the role of government to stop economic change and the consequences it brings.  This is just another irony of the folks who brought us "change we can believe in." 

The FTC staff report proposes to bailout newspapers and otherwise create public subsidies for news creation.  This proposal comes at a point in human history when more information is available to more people faster than ever before. 

Why does the government believe that we neeed to subsidize news when news is readily available?  Mostly because the current administration doesn't like news from the bottom-up.  The Obama administration prefers the fawning coverage of the New York Times (whose subscriptions and revenues are shrinking) to the crowd-sourced information that comes from the Web. 

Tweets and blog posts are no substitute for on-the-ground reporting, of course, but in the same way that the market's creation of the automobile led to the demise of the horse-drawn carriage, the market is also creating substitutes for newspaper-driven news. 

The cable news networks (which deliver content both via television and the web), web-based news services (through Google, Yahoo, MSN and others) and other forms of content delivery we can only begin to appreciate are rapidly eliminating the need for an advertising-based printed news medium.

The solution is that no solution is required.  Let the newspapers fail.  Former employees of the industry will find new jobs elsewhere.  The world will not want for lack of news. 
10:23 am edt 

The Boys of Pointe du Hoc
Ronald Reagan's classic remembrance of some of the heroes of D-Day in Normandy:

We're here to mark that day in history when the Allied armies joined in battle to reclaim this continent to liberty. For four long years, much of Europe had been under a terrible shadow. Free nations had fallen, Jews cried out in the camps, millions cried out for liberation. Europe was enslaved, and the world prayed for its rescue. Here, in Normandy, the rescue began. Here, the Allies stood and fought against tyranny, in a giant undertaking unparalleled in human history.

Read the rest
10:12 am edt 

Saturday, June 5, 2010

Souter and Originalism
Damon Root does a good job of gutting former Supreme Court Justice David Souter's critique of originalism in his Harvard commencement speech

Souter argued that originalism would have failed to reach some of the great achievements of the Supreme Court over the past 100 years.  He argued that one of the Court's great achievements -- overturning the doctrine of "separate but equal" in Brown v. Board of Education -- would not have occurred if the Court were guided by originalism. 

Root's response was that the 14th Amendment, passed by the radical Republicans in the aftermath of the Civil War, was intended to enshrine the doctrine of self-determination and economic liberty into the Constitution.  The 14th Amendment's prohibition against state laws that abridge the rights of individuals, when viewed through an originalist lense, should also be read to prohibit state laws that prohibit one group of individuals from participating equally in economic opportunities.
8:26 am edt 

Friday, June 4, 2010

A Sign of Hope for the Future

Wall Street Journal: Sales of U.S. Light Beers are Sagging

Why drink an American light beer when you can stick a pencil in your eye?

But seriously, if American beer drinkers are finally waking up to the fact that American light beer is awful, perhaps there is hope for us all.  (Hat tip to Monty Python:  "How is American beer like making love in a canoe?  It's f____ing close to water.")

American's may be known for many things around the world, but not for their taste.  Perhaps there is hope.  (Alas, CAMRA has no branches in the U.S.) 

7:52 pm edt 

American Needle v. National Football League

The U.S. Supreme Court recently issued its decision in American Needle v. National Football League, effectively holding that the NFL did not enjoy automatic antitrust immunity for its collective decisions on behalf of its particpating teams. 

My partner John Gross has published an excellent summary of American Needle and Kristi Dosh has made two blog posts on the impact of the decision on the business of sports in the Forbes Sports site.  (Supreme Court Loss Isn't a LossAmerican Needle Looking Forward). 

10:44 am edt 

Thursday, June 3, 2010

Supreme Court to Rule on Constitutional Challenge to Sarbanes-Oxley
The CEI reports that a ruling is due soon in Free Enterprise Fund v. Public Company Accounting Oversight Board

The CEI acts as co-counsel to the petitioners, arguing that the PCAOB, which was created by the Sarbanes-Oxley Act, violates the Appointments and the Separation of Powers clases of the Constitution.  (Prior coverage of the case.) 
9:18 pm edt 

Tuesday, June 1, 2010

Webinar: State Financial Incentives for Renewable Energy Projects
I will be moderating a panel for Electric Utility Consultants on July 8, 2010 from 12:00 to 1:30 pm eastern time. 

The panel will analyze the many methods that state governments have designed to spur the growth of new renewable energy projects.  It will compare renewable portfolio standards, feed-in tariffs and other state-level incentives.  

Panel members include Michael C. Barnas, Senior Counsel for Renewables, GE Energy, and Daniel J. Boyle, Managing Director, Heuristics Strategies, LLC. 

The webinar will examine the policy rationales and impacts behind these types of incentive programs, identifying the competing interest groups who play a role in policy adoption and offering thoughts on the effectiveness of different state programs.

Register here.     
8:55 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.