Friday, September 09, 2005

The Hokie Home line of products

According to this article you can make your house look like one of those "collegiate Gothic" buildings on the Drill Field at Virginia Tech.

Judge Conrad applies heightened pleading standard to patent defense

In Stowe Woodward LLC v. Sensor Products, Inc., Judge Conrad of the W.D. Va. applied a "heightened pleading" standard to the defendant's assertion that the plaintiff's claim under patent law was barred by the defense of "inequitable conduct."

This strikes me as unsound, in light of the Supreme Court's decisions Leatherman (section 1983) and Swierkiewicz (Title VII). I mean, if we can't use judge-made heightened pleading requirements in the cases that I'm interested in, why should the patent lawyers have all the fun?

Not too long ago, I wrote with regard to defamation, in a somewhat related context:

Even though the counterclaim is governed by Virginia law, the federal rules of civil procedure determine the sufficiency of its allegations, and the state court rule for pleading defamation does not apply. See Wuchenich v. Shenandoah Memorial Hospital, 2000 WL 665633 (4th Cir.) (unpublished). See also Caster v. Hennessey, 781 F.2d 1569, 1570 (11th Cir. 1986) ("[w]hile [state law] requires, perhaps wisely, specific allegations of publication [of the defamatory statement] in the complaint, . . . a federal court need not adhere to a state's strict pleading requirements but should instead follow Fed. R. Civ. P. 8(a)'"); Palladino v. VNA of Southern New Jersey, Inc., 68 F. Supp. 2d 455, 475 (D.N.J. 1999) ("the specificity with which a defamation claim brought in federal court must be pled is defined by Rule 8"); Veilleux v. National Broadcasting Co., Inc., 8 F. Supp. 2d 23, 35 (D. Maine 1998) ("The sufficiency of the pleadings in a defamation case in federal court is governed by federal rules."); GE Capital Mortgage Svcs., Inc. v. Pinnacle Mortgage Investment Corp., 897 F. Supp. 854, 867 (E.D. Penn. 1995) ("Federal Rule of Civil Procedure 8(a), and not Pennsylvania law, provides the standard of specificity applicable to plaintiff’s defamation claim."); Sabatowski v. Fisher Price Toys, 763 F. Supp. 705, 713 (W.D.N.Y. 1991) ("Fed. R. Civ. P. 8(a), not [state law] supplies the standard of specificity applicable to the defamation pleading in this case."); Adler v. American Standard Corp., 538 F. Supp. 572, 576 (D. Md. 1982) (federal plaintiff not required under the Rules to "reproduce the exact words alleged to have been defamatory"). Rule 8 of the Federal Rules of Civil Procedure requires only "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. Pro. 8(a). Defamation is not one of those "special matters" for which pleading with specificity is required under Rule 9(b).

Thursday, September 08, 2005

On U.S. v. Thompson and the Armed Career Criminal Act

Steve Sady has this Ninth Circuit Blog post on the split decision by the Fourth Circuit in U.S. v. Thompson. In that case, Judge Wilkinson wrote for the majority, joined by Judge Widener, with Chief Judge Wilkins in dissent, on the issue of whether the issue of the defendant's earlier crimes necessary to support the heightened sentence should have been submitted to the jury. Judge Wilkinson said no, Chief Judge Wilkins said yes.

On saving the Pork Queen

One or more Virginia lawyers is a member of the band described here, and one of the songs in their repertoire is called "God Save the Pork Queen."

My mom's aunt Irma once showed me a picture in which she was riding in a parade somewhere in SW Virginia, having been named something like "Miss Virginia Ham" about 65 years ago.

UPDATE: That's ERMA, with an 'E.'

Thomas is now circuit justice for the Fourth Circuit

Jaded JD links to this SCOTUSblog post that says the Supreme Court has issued an order that says, among other things, that Justice Thomas is now the circuit justice for this circuit.

Wednesday, September 07, 2005 takes on the long-running Dr. Knox case, now coming to a close, in How 313 crimes became four discusses the W.D. Va. case against Dr. Cecil Knox, and links to this Roanoke Times story which indicates that Dr. Knox has signed a plea agreement.

The effect of Katrina on the federal courts

Benefitsblog links to this memo from the Administrative Office describing the effect of Hurricane Katrina on various federal courts.

This Legal Dockets Online post has a link to the legislation proposed by the Judicial Conference to allow the E.D. La. to hold court outside of the E.D. La.

Tuesday, September 06, 2005

The online legal research proposal for all Virginia lawyers

VLW is reporting this week that: "Fastcase, a legal research company based in Alexandria, submitted the only proposal late last month in response to the Virginia State Bar's request for ways to provide online legal research service to every member of the organization."

Somebody talked me into paying for a trial subscription to Fastcase several years back. I generally like to play with new programs of any kind, but I hated this one, never used it more than a few times, and felt like a fool for having paid anything for it. Supposedly, it was written to be a "better" research tool, but I never saw any advantage to it of any kind, except that I suppose it could be cheaper than Lexis or Westlaw.

Sixth Circuit affirms dismissal of claims against W.D. Va. defendants in Mettetal case

In Mettetal v. Vanderbilt University, the Sixth Circuit in an opinion by Judge Karen Nelson Moore joined by Circuit Judge Cook and District Judge Gwin from Ohio affirmed the dismissal of the plaintiff's various and sundry claims against the many defendants, including the late Judge Michael and various prosecutors, law enforcement officials, and defense lawyers connected in some way with the prosecution of the plaintiff in the W.D. Va. The appeals court reversed dismissal, however, as to Vanderbilt University and the Metro Nashville police, who were involved in the plaintiff's arrest and prosecution in Tennessee.

Monday, September 05, 2005

Ken breaks bad, equates Virginia jurists with Rose Bird, HOWT responds

In this post, obviously locked in the throes of around-the-clock brief-writing, Ken Lammers declares that the Virginia courts are not as conservative as you might expect, although his examples are not especially compelling. I mean, the liberal courts are the ones running wild with the state constitutions these days, in Massachusetts and elsewhere.

HOWT had this response, including some reference to Sutherland on Statutory Construction (which reminds me of Statutory Construction Zone, still updated every now and then).

The New Yorker takes on Patrick Henry College

From the New Yorker earlier this summer, here is an article on Patrick Henry College, the school with the debate champs, where Mike Farris is the president, and 85% of the student body were home-schooled.

What happened to the buses owned by the City?

Over lunch last week, I asked somebody the question - doesn't the City of New Orleans own any buses?

Then, I saw this post From on High.

Oral argument this month in both Vermont and Virginia in the same-sex couple's custody case

The AP has this report on the parallel appeals in Vermont and Virginia in the matter of the two women litigating custody over their child.

I expect the circuit court ruling in Virginia will be affirmed by the Virginia Court of Appeals, from what little I know about it.

On Chief Justice Rehnquist's initial appointment to the Supreme Court

Here are five incredible pages of transcripts and recordings of telephone conversations between President Nixon and Attorney General Mitchell about filling the two open seats on the Supreme Court, one that went to Lewis Powell. The other came down to a choice between William Rehnquist and Senator Howard Baker of Tennessee. Evidently, Baker was willing to take the job, but was done in by the fact that he and Powell were both Southerners, plus Nixon liked the idea of thrusting a well-qualified unknown on the legal establishment.

According to this exchange, Nixon was delighted to catch the pundits by surprise with the choice of Rehnquist:

"President Nixon: ...But on the other hand, we really threw a bombshell at these bastards tonight, didn't we?

John Mitchell: We really did--

RMN: What do you think?

JM: Well, let me tell you, they were just so flabbergasted they didn't know what to say...

RMN: Are they?...Of course, that first in his class is what these goddamn snobs - that's what impresses them. And law clerk to Jackson, that impressed Meany, they tell me...

RMN: This means, John, that we will have appointed four good men. Everybody recognizes that Burger is a good man, Blackmun is a good man, Powell, a course, everyone will recognize it. And Rehnquist is the smartest of the whole goddamn bunch

JM: (Unintelligible)

RMN: (Laughs) And he's on our side, isn't he?

JM: I think you did a great thing for the court.

RMN: I really built them up. You know, and I talked about respect the law, whether you agree and obey the law and all that. And they oughta appreciate it, the bastards-

JM: Well they should, and said it in a very mild mannered way. You got across to the American public

RMN: Be sure to emphasize to all the Southerners that Rehnquist is a reactionary bastard, which I hope to Christ he is. In a pure press sense, it's like China--the bastards were completely taken by surprise. They didn't know what the hell was gonna hit 'em. Ha! Doesn't that amuse you? We kept it quiet..."

I suspect that if and when he ever read these word, Rehnquist found something amusing in these manic and ironic comments by President Nixon.