Friday, December 03, 2004


I'm hitting the road tomorrow, Richmond-bound, mostly for the purpose of trying to mediate a civil rights case next week.

One odd aspect is that a claims manager I've known only by phone for the better part of 10 years will be there.

Thursday, December 02, 2004

Some guy from Prince William County joins Republicans running for Lieutenant Governor

The Richmond paper reported here ("Connaughton Launches Bid," 12/1/04) that the chairman of the Prince William County board of supervisors has opened his campaign for statewide office.

The other Republicans running are said to be Senator Bolling, Delegate May, and lawyer Gil Davis.

Martians wanted in Virginia

Earlier this week, the Roanoke paper had here ("Extras needed to fight Steven Spielberg's martians," 11/30/04) on the search for extra-terrestrials in Rockbridge County, where a remake of "War of the Worlds" is being filmed.

Who's the better Republican

In Hall v. Babb, the Seventh Circuit recognized the possibility of a First Amendment party affiliation discrimination claim based on "differing degrees of support for a single party, just as it reaches favoritism based on simple party membership." The Court concluded, however, the plaintiff had not proven that he lost out because he was not as good a Republican as the other guy who got the job.

Wednesday, December 01, 2004

Lawyer gets public reprimand for accusing Virginia Supreme Court of conspiracy

The Roanoke Times reports here ("State bar reprimands Roanoke lawyer," 12/1/04) that the Virginia State bar has issued a reprimand in the case of the Roanoke area lawyer who made the claim that the Virginia Supreme Court was in cahoots somehow with the Gentry Locke law firm, affecting the rights of his client.

His client was the plaintiff in Snyder-Falkinham v. Stockburger, 249 Va. 376, 457 S.E.2d 39 (1995), which deals with the question, as my contracts professor would have phrased, "how many times to you have to ask each other to dance before you start dancing?" Or, more to the point, when do you have a settlement agreement that you can't back out of? Sometime after the appeal, the lawyer filed a federal lawsuit, as to which at one time Judge Wilson was going to consider sanctions under Rule 11, see Snyder-Falkinham v. Stockburger, 1996 WL 1171800, *1+ (W.D.Va. Aug 05, 1996). The judge backed off on the sanctions, and I think the case was reassigned to someone else.

If you're scoring at home, etc.

Wonkette (whom I saw on TV over the weekend) has this post about Keith Olbermann, who inspired this drinking game with his catch phrases as an anchor for ESPN's Sportscenter.

Olbermann says journalists should not be allowed to vote. That's probably a good idea, in his case. I've always understood that part of the reason that he left the "other Bristol" (in Connecticut, home of ESPN world headquarters) is because he doesn't drive. What's up with that?

Judge Spencer becomes chief judge of the E.D. Va.

The Richmond paper reports here that Judge James Spencer is the new chief judge of the E.D. Va.

Did I say Shreveport? I meant Boise

The Richmond paper reports here the Virginia Cavaliers are going bowling in Idaho.

The Tackler

The Norfolk paper has this delightful recollection about a fellow who as a 65 year-old came off the sideline to tackle a William & Mary runner heading for a touchdown.

Tuesday, November 30, 2004

Counting to three

In Perry v. Delisle, the Virginia Court of Appeals in an opinion by Judge Benton, joined by Senior Judge Coleman, held that the Workers' Compensation Commission erred in its conclusion that the employer did not have enough employees to be subject to the Workers' Compensation Act. Judge Humphreys dissented, as he would defer to the factfinding by the Commission.

Fourth Circuit reversed in Truth in Lending Act case

In Koons Buick Pontiac GMC, Inc. v. Nigh, the U.S. Supreme Court reversed the Fourth Circuit in a case under the federal Truth in Lending Act, on the issue of whether a statutory cap on damages survived a less than nifty amendment to the Act. The Fourth Circuit said no, the majority of the Supreme Court said yes, the cap remains.

Donald Ayer from Jones Day argued for the petitioner, Hugo Blankingship, III argued for the respondent.

Why plea bargain

Ken at CrimLaw has this post on why we plea bargain, at least in state court in Virginia.

I was just trying to explain these things to somebody not too long ago.

The clout of rural voters in Virginia

Via this post from Commonwealth Conservative, I see this article ("Rural voters' clout rising," 11/30/04) on the increasing clout of rural voters in the Commonwealth.

While I'm on a roll

This NY Times editorial on the Title IX retaliation case shows me that one of us is way off the mark. In Title VII of the Civil Rights Act, the Congress created an express remedy for retaliation; if Title IX lacks the same language, then there is no remedy.

The editorial says: "When someone suffers retaliation for complaining about sex discrimination, that is itself a form of sex discrimination." It is not. Why torture the language in this way? Why not write an editorial that says, if Title IX as it is does not contain an anti-retaliation claim, it should be amended?

Ack, I don't know why I even read the NY Times, but Jim Elliott is out-of-town, and so I have no one to argue with here on the premises.

Monday, November 29, 2004

No way

If the Solomon Amendment litigation is a civil procedure and constitutional law quiz, and this Third Circuit opinion in FAIR v. Rumsfeld has all the answers, I think I would get an 'F,' because I disagree with almost every single bit of this opinion from standing on down. Law schools as victims of civil rights violations! Why not a suit brought on behalf of the philosophy department? Or the field hockey team? The comic book section of the library? These are bogus plaintiffs, with bogus injuries, incapable of speech in any sense that makes sense to me. "The law schools are expressive associations," said the Court. As one of my old clients would say: "Balderdash!" If they are, they should not be. I say this having read all the recent Liberty Law School-bashing in recent weeks.

I wonder, how can a state allow its public-funded law school to have a particular "message", but can't sell "Choose Life" license plates? (Then again, maybe none of the unidentified members of the plaintiff association were state schools.) Also, in the brave new world of law schools as civil rights victims, I wonder, what sort of lawsuits will be filed by the law school at Liberty?

The good news and the bad news

The good news is that Virginia basketball got in at No. 24 this week. The bad news is that there are 6 other ACC teams in front of them.

Did I say Boise? I meant Shreveport

The Washington Post reports here ("U-Va. Close to a Bowl Bid," 11/29/04) on a tentative deal that would have U.Va. football going up against Oklahoma State in Louisiana's Independence Bowl on December 28.

The Post still down on Virginia criminal justice system

Following up on its summertime commentary on the criminal justice system in Virginia, the Washington Post opines here that the criminal justice system in Virginia is still "in crisis," citing among other things the lawyer who missed the appeal deadline in the sniper Malvo case. (Didn't I read somewhere that was deliberately done?)

Sunday, November 28, 2004

Boise, here we come

This post from an NC State sports blog heckles the University of Virginia's decision to decline an invitation to a bowl game scheduled during December exams. The writer asks:

"Shouldn’t schools who derive so much benefit from their affiliation with the Atlantic Coast Conference feel some level of obligation to inform the ACC (and their fans, their players, and their recruits), of decisions like these BEFORE the conference puts together its bowl agreements?"

The post concludes:

"After holding the entire conference hostage during expansion in 2003, the Cavs continue to exhibit a level of audacity and selfishness that only one other conference affiliate could dream about." (I'm not sure that I understand that latter reference.)

He's probably right, if it is true that Virginia is changing the rules at the last minute, the University deserves whatever it gets, which may be nothing more than a lump of coal (or Idaho snow) for Christmas.

Roanoke paper opposes mandatory sentencing

The Roanoke paper opines here that mandatory minimum penalties are mostly a bad idea.

The article notes:

"Drawing inspiration from the case of Sid Clower, the ex-Henry County administrator convicted of embezzlement, Del. Roscoe Reynolds, D-Henry County, sponsored a bill creating tougher sentences for government officials who steal public money.

Fortunately, lawmakers rejected the proposal by an 11-9 vote. They understood that rubber-stamping the proposal would hamstring judges, requiring them to impose blanket punishment rather than considering the circumstances of each case and meting out an appropriate penalty."

Another take on the Breaks

The Lexington, KY paper has this article ("The gorge is wild and rugged, but it's not overly grand," 11/28/04) on the Breaks Interstate Park along the Kentucky-Virginia border.

More on the Big Game

Even after the Big Game, this post is worth reading.

Fortunately, I made no wagers on the outcome.

Fees Virginia college students pay to support sports

The Richmond paper has this article ("Fees for sports don't get much play," 11/28/04) on the fees charged by Virginia's colleges and universities to defray the costs of intercollegiate athletics programs.

Virginia woman can proceed with prison sex abuse suit

The Charlottesville paper reports here ("Inmate allowed to sue prison," 11/27/04) and the AP reports here that the Virginia Supreme Court has reversed the dismissal of a woman's claims against the Virginia Department of Corrections and individual corrections officials, where the circuit court had ruled that the plaintiff failed to correctly exhaust her administrative remedies.

The Court's opinion, by Senior Justice Russell, in the Billups case came out on November 5. It deals not only with the issue of whether the plaintiff had exhausted her administrative remedies for purposes of both Va. Code 8.01-195.3(7) and 42 U.S.C. 1997e(a), but also whether the plaintiff's section 1983 and common law battery claims were time-barred.

There are surprisingly few Virginia Supreme Court cases dealing with civil constitutional claims (not counting condemnation and habeas corpus), but I think their number and frequency will increase. Prisoner litigation is on the rise, federal civil procedure is perceived by some as more favorable to defendants, the Eleventh Amendment does not apply in state court, the state courts (to the extent their views are unknown) might be viewed as possibly better places to litigate the merits of constitutional claims than the federal courts in the Fourth Circuit (certainly, the Virginia Supreme Court leaned more to the side of individuals vs. the government in the two recent First Amendment cases that were reversed by the U.S. Supreme Court), and as demonstrated by the Goodrich case in Massachusetts, litigants generally who are frustrated with the federal law and procedure may try using the state constitution as a source of substantive rights.

Ode to fudge cake

Inspired by this Kingsport Times article, I note that before I ever went to a Shoney's, at least 30 years ago, I ate fudge cake (with the ice cream, fudge sauce, etc.) in Lee County at the home of Grace Davis and Eva Rush, the aunts of my aunt Rose.

This has nothing in particular to do with the law, except I know that one of Grace Davis' many students was Judge Glen Williams, who spoke at her funeral, and somehow Rose, et al., are kin to Judge Birg Sergent, a fact I never would have guessed.

Kilgore and Kaine as speakers

Thursday's Washington Post had this piece ("Kilgore, Kaine Give Previews of Very Different Styles," 11/25/04) comparing the speechmaking styles of gubernatorial candidates Jerry Kilgore and Tim Kaine.