Sunday, April 30, 2006
All-time list of Cavaliers in the NFL draft
With D'Brickashaw Ferguson taken in the first round, I had occasion to revisit this list of all the Virginia players taken in the NFL draft (through 2003), and see that this is at least the third time a U.Va. man has been drafted by the Jets in the first round (the others being Jeff Lageman and James Farrior).
Saturday, April 29, 2006
Fourth Circuit nomination gossip I missed from March
This NRO post said back then:
"According to a senior staffer in Senate leadership, the Senate will likely turn to floor action in May on the long-pending nomination of Terry Boyle to the Fourth Circuit and/or the long-pending nomination of Brett Kavanaugh to the D.C. Circuit. The Kavanaugh nomination is still before the Judiciary Committee, but should be reported to the floor soon. . . .
According to a very knowledgeable non-Senate source, the news is much worse for Fourth Circuit nominee William Haynes: Senator McCain is committed to stopping Haynes's confirmation, and Senator Graham, as a favor to Senator McCain, will keep the nomination from being reported out of committee. If this news is accurate, it would appear that there is no hope for Haynes's nomination."
Time may running out on these nominations, for better or for worse.
"According to a senior staffer in Senate leadership, the Senate will likely turn to floor action in May on the long-pending nomination of Terry Boyle to the Fourth Circuit and/or the long-pending nomination of Brett Kavanaugh to the D.C. Circuit. The Kavanaugh nomination is still before the Judiciary Committee, but should be reported to the floor soon. . . .
According to a very knowledgeable non-Senate source, the news is much worse for Fourth Circuit nominee William Haynes: Senator McCain is committed to stopping Haynes's confirmation, and Senator Graham, as a favor to Senator McCain, will keep the nomination from being reported out of committee. If this news is accurate, it would appear that there is no hope for Haynes's nomination."
Time may running out on these nominations, for better or for worse.
On the case of the phony claim of a mouse in their soup
The Daily Press reports here on the guilty verdicts in the criminal case against the mother and son who made a false claim that they found a mouse in their soup at a restaurant in Virginia.
A Dickenson County case
This Rex Bowman story reads like something that could have happened in 1935.
Instead, the case was heard last week.
Instead, the case was heard last week.
The Hook takes on a Charlottesville lawyer
Not that I agreed with all of it, but I was delighted by this profile from the Hook in Charlottesville of lawyer Benjamin Dick, whose most famous trial lately was the defense verdict in the farmer/lawyer murder case.
One of his accomplishments he lists as this: "being the first in the Dick genealogy to be a lawyer who won arguments before the Virginia Supreme Court, U.S. District courts, and the U.S. Fourth Circuit Court of Appeals."
As his most embarrassing moment, he replied: "After losing a lot of weight for health issues, my old pants dropped to my ankles while I held an arm full of groceries in a grocery store, scaring a poor old lady."
Since it seems likely that I have a remote ancestor (Maindort Doodes, whose son Doodes Minor supposedly became a citizen by an Act of Assembly in 1673) in common with many of the Virginia Minors (including perhaps that John B. Minor who referenced Maindort in his 1923 book, The Minor Family of Virginia), I doubt that I can make a similar genealogical claim. I do, however, have some old pants that are certainly capable of falling to my ankles in a grocery store.
One of his accomplishments he lists as this: "being the first in the Dick genealogy to be a lawyer who won arguments before the Virginia Supreme Court, U.S. District courts, and the U.S. Fourth Circuit Court of Appeals."
As his most embarrassing moment, he replied: "After losing a lot of weight for health issues, my old pants dropped to my ankles while I held an arm full of groceries in a grocery store, scaring a poor old lady."
Since it seems likely that I have a remote ancestor (Maindort Doodes, whose son Doodes Minor supposedly became a citizen by an Act of Assembly in 1673) in common with many of the Virginia Minors (including perhaps that John B. Minor who referenced Maindort in his 1923 book, The Minor Family of Virginia), I doubt that I can make a similar genealogical claim. I do, however, have some old pants that are certainly capable of falling to my ankles in a grocery store.
Waldo strikes again
Now, Waldo Jaquith has created the aggregator of Virginia Political Blogs. Check it out - 80+ "political" Virginia blogs all in one place.
On why appeals court judges don't get to hang out with legislators
Marcia Oddi's Indiana Law Blog has this interesting post on the uproar in two states over contacts between state appeals court judges and legislators.
In Minnesota, "[f]or what may be the first time in its 40-year history, the state Board on Judicial Standards has opened investigative files on all seven Minnesota Supreme Court justices, the result of a complaint that alleges that one or more of them may have had improper conversations with a legislator regarding Minnesota's marriage laws."
In Kansas, a Senate panel pondered the question of "whether a Supreme Court justice's discussion with two senators about school funding has tainted other members of the court."
In Minnesota, "[f]or what may be the first time in its 40-year history, the state Board on Judicial Standards has opened investigative files on all seven Minnesota Supreme Court justices, the result of a complaint that alleges that one or more of them may have had improper conversations with a legislator regarding Minnesota's marriage laws."
In Kansas, a Senate panel pondered the question of "whether a Supreme Court justice's discussion with two senators about school funding has tainted other members of the court."
That interview with a U.S. District Court judge about blogs
I've seen a few references, including this one from Robert Ambrogi, to Ian Best's interview with a federal court judge in Nebraska about law blogs.
It reminds me of how much I enjoyed Howard Bashman's series of Twenty Questions, one of two judges the Nebraska judges reads every day, along with Professor Berman's Sentencing Law Blog. (I would read those blogs every day, too, if I was a federal judge; heck, I read them both almost daily as it is.)
It reminds me of how much I enjoyed Howard Bashman's series of Twenty Questions, one of two judges the Nebraska judges reads every day, along with Professor Berman's Sentencing Law Blog. (I would read those blogs every day, too, if I was a federal judge; heck, I read them both almost daily as it is.)
Friday, April 28, 2006
Chief Justice Hassell addresses Sabato 101
The CD has this report on Chief Justice Hassell's appearance before Professor Sabato's PLAP 101 class. (In my day, it is GFAG 101.)
One of the things he is quoted is saying was this:
"According to Hassell, half of the population will encounter the judicial system at some point in their lives and half of these will not be able to afford good lawyers.
Hassell said he requested the General Assembly to give the judicial system an additional $25 million to pay court-appointed attorneys. He received about $8 million.
Virginia has the lowest amount of compensation for court-appointed attorneys in the nation, according to Hassell.
'That is just wrong, wrong, wrong,' Hassell said."
One of the things he is quoted is saying was this:
"According to Hassell, half of the population will encounter the judicial system at some point in their lives and half of these will not be able to afford good lawyers.
Hassell said he requested the General Assembly to give the judicial system an additional $25 million to pay court-appointed attorneys. He received about $8 million.
Virginia has the lowest amount of compensation for court-appointed attorneys in the nation, according to Hassell.
'That is just wrong, wrong, wrong,' Hassell said."
Unhappy Hyundai news
On Frank W. Rogers, Jr.
The text of SJ 5018:
"WHEREAS, Frank W. Rogers, Jr., of the City of Roanoke, an esteemed attorney for over 50 years, died on July 11, 2005; and
WHEREAS, Frank W. Rogers, Jr., was affectionately called "Bo," in part to denote his close relationship with his twin brother Robert, who was known as "Bob"; and
WHEREAS, while growing up and throughout their adult lives, Bo and Bob Rogers were nearly inseparable and aspired to similar ideals and goals in life; and
WHEREAS, in their childhood, Bo Rogers and his siblings spent numerous hours on Saturdays playing in their father's law office, observing his passion and diligence for the law; consequently, the Rogers children were likewise inspired to make a difference in their community; and
WHEREAS, Bo Rogers, along with his brother Bob, attended Episcopal High School in Alexandria, received their undergraduate degrees from Princeton University, and their law degrees from the University of Virginia School of Law; after deciding to specialize in tax law, Bo earned a master's degree from the Georgetown University Law Center; and
WHEREAS, after receiving his degrees, Bo Rogers honorably served his country with the Judge Advocate General's Corps in the United States Army and was discharged in 1958 as a captain; and
WHEREAS, returning to Roanoke in 1960, Bo Rogers and his brother Bob joined the prominent law firm that his father helped to found (now Woods Rogers PLC); Bo became the senior member of the law firm's tax group; and
WHEREAS, during a long and prestigious career, Bo Rogers was selected for inclusion in both The Best Lawyers in America and Virginia Business Magazine's Legal Elite; and
WHEREAS, throughout a life of significant professional achievement as a practicing attorney for over 50 years, Bo Rogers served his fellow citizens with uncommon dedication; and
WHEREAS, committed to improving the quality of life for all of the citizens of the Commonwealth, Bo Rogers gave his time and considerable expertise to numerous civic organizations, serving as president of the Roanoke Bar Association and as a member of the boards of Hollins University, Episcopal High School, the YMCA, the Roanoke Symphony Society, and the Virginia Historical Society; and
WHEREAS, Bo Rogers was a faithful member of St. John's Episcopal Church and served as a member of the vestry and as a junior warden; and
WHEREAS, Bo Rogers had an extraordinary zest for life, a remarkable gift for instantly making everyone he met feel at ease, and will be fondly remembered for his immense generosity and kindness; and
WHEREAS, Bo Rogers will be sorely missed by his devoted wife of 50 years, Laurine Kunkel Rogers, his son and two daughters, his four wonderful grandchildren, other loving family members, numerous friends and colleagues, and the parishioners of St. John's Episcopal Church; now, therefore, be it
RESOLVED by the Senate, the House of Delegates concurring, That the General Assembly mourn the loss of an exceptional attorney and outstanding Virginian, Frank W. Rogers, Jr.; and, be it
RESOLVED FURTHER, That the Clerk of the Senate prepare a copy of this resolution for presentation to the family of Frank W. Rogers, Jr., as an expression of the respect in which his memory is held by the members of the General Assembly."
"WHEREAS, Frank W. Rogers, Jr., of the City of Roanoke, an esteemed attorney for over 50 years, died on July 11, 2005; and
WHEREAS, Frank W. Rogers, Jr., was affectionately called "Bo," in part to denote his close relationship with his twin brother Robert, who was known as "Bob"; and
WHEREAS, while growing up and throughout their adult lives, Bo and Bob Rogers were nearly inseparable and aspired to similar ideals and goals in life; and
WHEREAS, in their childhood, Bo Rogers and his siblings spent numerous hours on Saturdays playing in their father's law office, observing his passion and diligence for the law; consequently, the Rogers children were likewise inspired to make a difference in their community; and
WHEREAS, Bo Rogers, along with his brother Bob, attended Episcopal High School in Alexandria, received their undergraduate degrees from Princeton University, and their law degrees from the University of Virginia School of Law; after deciding to specialize in tax law, Bo earned a master's degree from the Georgetown University Law Center; and
WHEREAS, after receiving his degrees, Bo Rogers honorably served his country with the Judge Advocate General's Corps in the United States Army and was discharged in 1958 as a captain; and
WHEREAS, returning to Roanoke in 1960, Bo Rogers and his brother Bob joined the prominent law firm that his father helped to found (now Woods Rogers PLC); Bo became the senior member of the law firm's tax group; and
WHEREAS, during a long and prestigious career, Bo Rogers was selected for inclusion in both The Best Lawyers in America and Virginia Business Magazine's Legal Elite; and
WHEREAS, throughout a life of significant professional achievement as a practicing attorney for over 50 years, Bo Rogers served his fellow citizens with uncommon dedication; and
WHEREAS, committed to improving the quality of life for all of the citizens of the Commonwealth, Bo Rogers gave his time and considerable expertise to numerous civic organizations, serving as president of the Roanoke Bar Association and as a member of the boards of Hollins University, Episcopal High School, the YMCA, the Roanoke Symphony Society, and the Virginia Historical Society; and
WHEREAS, Bo Rogers was a faithful member of St. John's Episcopal Church and served as a member of the vestry and as a junior warden; and
WHEREAS, Bo Rogers had an extraordinary zest for life, a remarkable gift for instantly making everyone he met feel at ease, and will be fondly remembered for his immense generosity and kindness; and
WHEREAS, Bo Rogers will be sorely missed by his devoted wife of 50 years, Laurine Kunkel Rogers, his son and two daughters, his four wonderful grandchildren, other loving family members, numerous friends and colleagues, and the parishioners of St. John's Episcopal Church; now, therefore, be it
RESOLVED by the Senate, the House of Delegates concurring, That the General Assembly mourn the loss of an exceptional attorney and outstanding Virginian, Frank W. Rogers, Jr.; and, be it
RESOLVED FURTHER, That the Clerk of the Senate prepare a copy of this resolution for presentation to the family of Frank W. Rogers, Jr., as an expression of the respect in which his memory is held by the members of the General Assembly."
Lawyer gets reprimanded for blog post
Law.com has this article about a temporary prosecutor in California who was reprimanded by the trial judge for what he wrote on his blog about a misdemeanor case.
Thursday, April 27, 2006
W&L law gets Sabato as graduation speaker
It says here that Professor Sabato is the man for the Washington & Lee law school graduation.
There is no word yet on whether Not Larry Sabato will get any such invitations.
There is no word yet on whether Not Larry Sabato will get any such invitations.
Feddie's career plan
Steve Dillard wants President Bush to forget what Dillard wrote about Harriet Miers, and give Steve a federal judgeship (before it's too late).
Former Richmond prosecutor turns up in Australia
Someone sent me a link to this article, which describes the ruling of a court in Australian on whether Joe Morrissey can practice law as a prosecutor Down Under, notwithstanding his difficulties with the Virginia State Bar. The answer: apparently not.
Judge Hull retires
Over yonder on the Tennessee side of Bristol, the local federal court is the E.D. Tennessee's Greeneville Division, where Judge Thomas Hull has been on the bench since his appointment by President Reagan in 1983. In 2002, he took senior status, and Judge Greer was appointed by President Bush.
The Greeneville paper reports here that Judge Hull is retiring completely as of tomorrow.
The best part of the article is this statement by Magistrate Judge Inman:
“I first came to know Judge Thomas G. Hull when he was a state Circuit Court Judge, and I was a young lawyer in Morristown. I immediately liked and admired him, both personally and as a judge. His sense of humor and common sense made unpleasant trials more palatable.
“He maintained that personality when he became a federal district court judge. When I first went on the state bench in 1984, I tried to emulate much of his manner in the trial of cases.
“It is impossible to recite in a few short paragraphs what Judge Hull has meant to me, to the United States District Court for the Eastern District of Tennessee, and to his hometown of Greeneville. But for Judge Hull, I would never have been a state court judge, and neither would I have become a United States magistrate judge.
“But for Judge Hull and his dogged determination, the District Court and Greeneville would not have the amazingly beautiful, technologically superior, and functional U. S. Courthouse.
“Judge Hull has been, and remains, a remarkable man. Many people, including myself, owe him much. The Jimmy Stewart movie, ‘It’s a Wonderful Life,’ comes to mind. What would this court and this town have been like if there had been no Tom Hull? We all have been very fortunate that there was, and is, a Judge Tom Hull.”
The Greeneville paper reports here that Judge Hull is retiring completely as of tomorrow.
The best part of the article is this statement by Magistrate Judge Inman:
“I first came to know Judge Thomas G. Hull when he was a state Circuit Court Judge, and I was a young lawyer in Morristown. I immediately liked and admired him, both personally and as a judge. His sense of humor and common sense made unpleasant trials more palatable.
“He maintained that personality when he became a federal district court judge. When I first went on the state bench in 1984, I tried to emulate much of his manner in the trial of cases.
“It is impossible to recite in a few short paragraphs what Judge Hull has meant to me, to the United States District Court for the Eastern District of Tennessee, and to his hometown of Greeneville. But for Judge Hull, I would never have been a state court judge, and neither would I have become a United States magistrate judge.
“But for Judge Hull and his dogged determination, the District Court and Greeneville would not have the amazingly beautiful, technologically superior, and functional U. S. Courthouse.
“Judge Hull has been, and remains, a remarkable man. Many people, including myself, owe him much. The Jimmy Stewart movie, ‘It’s a Wonderful Life,’ comes to mind. What would this court and this town have been like if there had been no Tom Hull? We all have been very fortunate that there was, and is, a Judge Tom Hull.”
Wednesday, April 26, 2006
Justice O'Connor to speak at William & Mary law graduation
It says here that retired Justice O'Connor, now chancellor of the College of William & Mary, will be the graduation speaker for the law school at William & Mary.
Even more amazing, it says the ceremony will be held in the Sunken Gardens, which sounds like a better venue than the football stadium.
Even more amazing, it says the ceremony will be held in the Sunken Gardens, which sounds like a better venue than the football stadium.
On the Appalachian School of Law's march to full accreditation
This statement from the ASL website says:
"The Appalachian School of Law was provisionally approved by the American Bar Association in Academic Year 2000-2001. In Academic Year 2005-2006, Appalachian School of Law applied for full approval from the American Bar Association. In connection with that application, President Ellsworth and Dean Kinsler appeared before the ABA's Accreditation Committee on April 20, 2006.
On April 24, 2006, the Accreditation Committee recommended ASL for full approval. Although this is an important accomplishment, one step remains before we are fully approved. This step will occur in mid-June, at which time the ABA's Council of the Section of Legal Education and Admissions to the Bar will consider the Accreditation Committee's recommendation."
I say well done, to so many people.
"The Appalachian School of Law was provisionally approved by the American Bar Association in Academic Year 2000-2001. In Academic Year 2005-2006, Appalachian School of Law applied for full approval from the American Bar Association. In connection with that application, President Ellsworth and Dean Kinsler appeared before the ABA's Accreditation Committee on April 20, 2006.
On April 24, 2006, the Accreditation Committee recommended ASL for full approval. Although this is an important accomplishment, one step remains before we are fully approved. This step will occur in mid-June, at which time the ABA's Council of the Section of Legal Education and Admissions to the Bar will consider the Accreditation Committee's recommendation."
I say well done, to so many people.
Municipal wi-fi comes to Southwest Virginia
The Bluefield paper reports here on the onset of free wi-fi in Bland County.
Office manager in Dr. Knox case fails to preserve claim for fees on criminal charges on which she was acquitted
In Boone v. U.S. Attorney, Chief Judge Jones of the W.D. Va. ruled that the office manager who was acquitted as to some counts in the Dr. Cecil Knox case could not recover her attorneys' fees under the Hyde Amendment because she had filed too late and because she had waived her claim for fees on the counts as to which she was acquitted as part of her plea deal on other counts with which she was charged in the sixth indictment.
The Roanoke paper had this article about the decision, and the article says of the defendant as saying that she "would not have signed the agreement as I had no intention of waiving the opportunity to file suit against the government on those unfounded drug charges."
The Roanoke paper had this article about the decision, and the article says of the defendant as saying that she "would not have signed the agreement as I had no intention of waiving the opportunity to file suit against the government on those unfounded drug charges."
On attorneys' fees in a small interpleader case
In Reliastar Life Ins. Co. v. Lemone, Magistrate Judge Urbanski decimated the attorneys' fee claim of the plaintiff insurance company in a federal interpleader case, where the "boot" was about $28,000 and the fees sought were over $13,000.
We had a federal interpleader case a few years back. In those statutory interpleader cases, the diversity that is required for subject matter jurisdiction is between the claimants to the property, not between the plaintiff and the defendants, and the jurisdictional amount in controversy requirement is much less than $75,000, and frequently, unlike in this case, the plaintiff can file the case, get an injunction that prevents the claimants from suing them while they fight it out among themselves, and then get an award of attorneys' fees out of the money in dispute. I would say you can't beat a deal like that, but evidently there is a reasonable limit when the boot is small on how much you can try to get as fees.
We had a federal interpleader case a few years back. In those statutory interpleader cases, the diversity that is required for subject matter jurisdiction is between the claimants to the property, not between the plaintiff and the defendants, and the jurisdictional amount in controversy requirement is much less than $75,000, and frequently, unlike in this case, the plaintiff can file the case, get an injunction that prevents the claimants from suing them while they fight it out among themselves, and then get an award of attorneys' fees out of the money in dispute. I would say you can't beat a deal like that, but evidently there is a reasonable limit when the boot is small on how much you can try to get as fees.
On the Jewell Ridge Lateral
Nibbling at the edges of the energy business, as I do, it is interesting to learn about such things as the transportation systems for coal and gas. One developing story of interest to me is the construction of a new natural gas pipeline from the coalfields along the Tazewell/Buchanan County border and the interstate gas line and the gas storage facilities in Smyth County.
In East Tennessee Natural Gas, LLC v. 1.28 Acres, dealing with a series of condemnation cases, Magistrate Judge Sargent describes some of the background of the project:
"The Jewell Ridge Lateral, once constructed, will connect CNX Gas Company, LLC’s, ('CNX Gas'), existing Cardinal States Gathering System in Tazewell County to ETNG’s existing pipeline system in Smyth County. The Certificate also authorizes the installation of two 'taps,' which would allow the communities of Richlands and Cedar Bluff to access a supply of natural gas in the future. The capacity of the Jewell Ridge Lateral will be 235,000 Dths, ('dekatherms'), per day or 235 million cubic feet of natural gas per day. . . .
According to Clinton Montgomery 'Monty' Collins, ETNG’s Project Manager for the Jewell Ridge Lateral project, the Certificate the FERC granted requires that the pipeline be constructed and in service within one year from February 8, 2006, the date on which the Certificate was issued. Collins testified that the pipeline would be constructed in sequence starting with the northern end of the pipeline at Jewell Ridge and traveling south to Smyth County. Collins described the process as a 'moving assembly line.' According to Collins, the route of the pipeline takes it across the land of approximately 79 different landowners, including four major mountains, Paint Lick Mountain, Brushy Mountain, Walker Mountain and Clinch Mountain and seven waterbodies. . . .
Claude D. Morgan, Vice President of Operations for CNX Gas, testified that CNX Gas has signed a contract with ETNG to move natural gas from its Cardinal States Gathering System in Tazewell County through the Jewell Ridge Lateral to the existing ETNG pipeline in Smyth County. Morgan stated that CNX Gas currently uses the Columbia Transmission System, specifically the KA20 pipeline, to move its natural gas to market from this area. According to Morgan, the Jewell Ridge Lateral is needed because the Columbia Transmission System is limited in the amount of gas it can transport, especially during the summer months. The KA20 pipeline is an interstate pipeline that serves mainly eastern Virginia and has no storage facilities on the pipeline. Thus, Morgan testified, the pipeline’s capacity at any one time is limited to the demand for natural gas in the market area that it serves.
Morgan stated that CNX Gas’s Cardinal States gas field produces 165 dekatherms or 165 million cubic feet of natural gas a day. The current capacity on the KA20 pipeline during the summer months is 135 million cubic feet a day. Morgan stated that currently left CNX Gas with 30 million cubic feet of gas a day that it does not have the pipeline capacity to move during the summer months. He stated that the estimated daily loss of revenue to CNX Gas as a result of the inability to move this gas is $225,000.00 to $240,000.00 a day, with resulting lost severance tax revenues of approximately $6,000.00 a day. Morgan testified that during the summer months of 2005, CNX Gas lost the ability to market more that 1.1 billion cubic feet in natural gas from this gas field because it had no way to transport the gas to market. Some of this gas is coalbed methane, which is released as a byproduct of mining activity, and it cannot be shut in. Thus, if there is not enough capacity on the pipeline to move that gas on any given day, Morgan stated, it simply is released into the atmosphere and lost. One of the advantages of moving gas on the ETNG system would be that the ETNG system has storage capabilities, according to Morgan.
Morgan testified that, since Hurricane Katrina struck the Gulf Coast last fall, there had been a shortage of natural gas available for use. In fact, Morgan stated that, had the United States not experienced a mild winter this year, the country would have found itself in 'dire straits' due to the current shortage of natural gas. . . .
Burton Perry, Senior Manager of Mining and Coal Resources for Pocahontas Land Corporation, a subsidiary of Norfolk Southern, testified that his company owned the mineral rights to a number of coal seams running under the property identified in case no. 1:06cv00036, ('the Pocahontas Land case.') Perry testified that there were current permits allowing mining on this property and that White Wolf Energy, Inc., ('White Wolf'), intended to open an underground mine on this property soon. Vaughn Miller, Manager of Land for the International Coal Group, a company affiliated with White Wolf, also testified that White Wolf owns a lease on all the coal seams owned by Southern Region Industrial Realty, Inc., ('Southern'). Miller further testified that White Wolf intended to open a major underground mine on this property to mine the War Creek coal seam in the next two years.
Perry testified that the only way to prevent surface subsidence from underground mining of coal was to extract only 50 percent of the coal and to leave the other 50 percent in place. If that were required in the mining of the coal reserves located under the proposed route of the Jewell Ridge Lateral across this property, Perry stated it would require leaving in place approximately one-half million tons of marketable coal. Perry also testified that there were extensive old mine works in various coal seams under the property."
In the end, Magistrate Judge Sargent recommended in favor of granting immediate possession to East Tennessee.
In East Tennessee Natural Gas, LLC v. 1.28 Acres, dealing with a series of condemnation cases, Magistrate Judge Sargent describes some of the background of the project:
"The Jewell Ridge Lateral, once constructed, will connect CNX Gas Company, LLC’s, ('CNX Gas'), existing Cardinal States Gathering System in Tazewell County to ETNG’s existing pipeline system in Smyth County. The Certificate also authorizes the installation of two 'taps,' which would allow the communities of Richlands and Cedar Bluff to access a supply of natural gas in the future. The capacity of the Jewell Ridge Lateral will be 235,000 Dths, ('dekatherms'), per day or 235 million cubic feet of natural gas per day. . . .
According to Clinton Montgomery 'Monty' Collins, ETNG’s Project Manager for the Jewell Ridge Lateral project, the Certificate the FERC granted requires that the pipeline be constructed and in service within one year from February 8, 2006, the date on which the Certificate was issued. Collins testified that the pipeline would be constructed in sequence starting with the northern end of the pipeline at Jewell Ridge and traveling south to Smyth County. Collins described the process as a 'moving assembly line.' According to Collins, the route of the pipeline takes it across the land of approximately 79 different landowners, including four major mountains, Paint Lick Mountain, Brushy Mountain, Walker Mountain and Clinch Mountain and seven waterbodies. . . .
Claude D. Morgan, Vice President of Operations for CNX Gas, testified that CNX Gas has signed a contract with ETNG to move natural gas from its Cardinal States Gathering System in Tazewell County through the Jewell Ridge Lateral to the existing ETNG pipeline in Smyth County. Morgan stated that CNX Gas currently uses the Columbia Transmission System, specifically the KA20 pipeline, to move its natural gas to market from this area. According to Morgan, the Jewell Ridge Lateral is needed because the Columbia Transmission System is limited in the amount of gas it can transport, especially during the summer months. The KA20 pipeline is an interstate pipeline that serves mainly eastern Virginia and has no storage facilities on the pipeline. Thus, Morgan testified, the pipeline’s capacity at any one time is limited to the demand for natural gas in the market area that it serves.
Morgan stated that CNX Gas’s Cardinal States gas field produces 165 dekatherms or 165 million cubic feet of natural gas a day. The current capacity on the KA20 pipeline during the summer months is 135 million cubic feet a day. Morgan stated that currently left CNX Gas with 30 million cubic feet of gas a day that it does not have the pipeline capacity to move during the summer months. He stated that the estimated daily loss of revenue to CNX Gas as a result of the inability to move this gas is $225,000.00 to $240,000.00 a day, with resulting lost severance tax revenues of approximately $6,000.00 a day. Morgan testified that during the summer months of 2005, CNX Gas lost the ability to market more that 1.1 billion cubic feet in natural gas from this gas field because it had no way to transport the gas to market. Some of this gas is coalbed methane, which is released as a byproduct of mining activity, and it cannot be shut in. Thus, if there is not enough capacity on the pipeline to move that gas on any given day, Morgan stated, it simply is released into the atmosphere and lost. One of the advantages of moving gas on the ETNG system would be that the ETNG system has storage capabilities, according to Morgan.
Morgan testified that, since Hurricane Katrina struck the Gulf Coast last fall, there had been a shortage of natural gas available for use. In fact, Morgan stated that, had the United States not experienced a mild winter this year, the country would have found itself in 'dire straits' due to the current shortage of natural gas. . . .
Burton Perry, Senior Manager of Mining and Coal Resources for Pocahontas Land Corporation, a subsidiary of Norfolk Southern, testified that his company owned the mineral rights to a number of coal seams running under the property identified in case no. 1:06cv00036, ('the Pocahontas Land case.') Perry testified that there were current permits allowing mining on this property and that White Wolf Energy, Inc., ('White Wolf'), intended to open an underground mine on this property soon. Vaughn Miller, Manager of Land for the International Coal Group, a company affiliated with White Wolf, also testified that White Wolf owns a lease on all the coal seams owned by Southern Region Industrial Realty, Inc., ('Southern'). Miller further testified that White Wolf intended to open a major underground mine on this property to mine the War Creek coal seam in the next two years.
Perry testified that the only way to prevent surface subsidence from underground mining of coal was to extract only 50 percent of the coal and to leave the other 50 percent in place. If that were required in the mining of the coal reserves located under the proposed route of the Jewell Ridge Lateral across this property, Perry stated it would require leaving in place approximately one-half million tons of marketable coal. Perry also testified that there were extensive old mine works in various coal seams under the property."
In the end, Magistrate Judge Sargent recommended in favor of granting immediate possession to East Tennessee.
Tuesday, April 25, 2006
Watch what you ask for
In Wachovia Bank v. Schmidt, the Fourth Circuit booted the case for lack of subject matter jurisdiction, got reversed by the Supreme Court on the jurisdictional issue, and then on remand ruled against the Bank on the merits, in an opinion by Judge King.
The issue was about the arbitrability of a dispute between some investors and the Bank over their losses as the result of an illegal tax shelter, on which the Bank supposedly gave some advice. The answer was - not arbitrable, where the alleged bad acts by and large preceded the writing with the arbitration clause, which seems like a pretty good reason to conclude the arbitration clause does not apply.
The issue was about the arbitrability of a dispute between some investors and the Bank over their losses as the result of an illegal tax shelter, on which the Bank supposedly gave some advice. The answer was - not arbitrable, where the alleged bad acts by and large preceded the writing with the arbitration clause, which seems like a pretty good reason to conclude the arbitration clause does not apply.
Speaking of BTQ
They've got a post here to a new Scott Turow book premised on the statute of limitations.
Rats, I wanted to write that book, and call it something like "For Whom The Statute Tolls," or maybe "While The Plaintiff Slept," or "Tough Guys Don't Non-suit."
No?
I used to keep a copy of my favorite statute of limitations opinion (United Mine Workers of America 1974 Pension Trust v. Big Star Coal Co., 1998 U.S. Dist. LEXIS 11530 (D.D.C. 1998)) in my middle desk drawer, and take it out every now and then and laugh.
Rats, I wanted to write that book, and call it something like "For Whom The Statute Tolls," or maybe "While The Plaintiff Slept," or "Tough Guys Don't Non-suit."
No?
I used to keep a copy of my favorite statute of limitations opinion (United Mine Workers of America 1974 Pension Trust v. Big Star Coal Co., 1998 U.S. Dist. LEXIS 11530 (D.D.C. 1998)) in my middle desk drawer, and take it out every now and then and laugh.
Judge Persin rejects claim that special prosecutors used fake orders to get fugitive back to Virginia
The Kingsport paper reports here that Judge Persin for the Wise County Circuit Court has rejected the motion of the one-time fugitive David Stanley for the recusal of special prosecutors Gerald Gray and Greg Kallen.
The article includes this fun sentence: "Gray told Person [sic] that Stanley's insinuations on Monday that he and Kallen broke into the Wise County Courthouse under the cover of darkness to forge a court document were 'patently absurd.'" Now, that is absurd.
The article includes this fun sentence: "Gray told Person [sic] that Stanley's insinuations on Monday that he and Kallen broke into the Wise County Courthouse under the cover of darkness to forge a court document were 'patently absurd.'" Now, that is absurd.
Still a Rick Monday fan, 30 years later
Milbarge from BTQ sent me a link to this story about the ceremony to honor Rick Monday at the ballpark in Houston. The article explains: "Monday was playing center field for the Chicago Cubs on April 25, 1976, at Dodger Stadium when he noticed two protesters kneeling on the grass in left-center, intending to burn the American flag. He immediately bolted toward them and snatched it away."
Also - "The Baseball Hall of Fame recently named Monday's quick-thinking act as one of the 100 Classic Moments in the history of the game." Certainly it is one my favorites, and I previously noted it here and here.
Also - "The Baseball Hall of Fame recently named Monday's quick-thinking act as one of the 100 Classic Moments in the history of the game." Certainly it is one my favorites, and I previously noted it here and here.
Sunday, April 23, 2006
Lengthy report on the inmates with clemency petitions before Governor Kaine
The Norfolk paper has this remarkably detailed report on the four convicts now seeking clemency from the Governor from the sentences they received for the murder in 1997 of a sailor's wife.
Saturday, April 22, 2006
On dueling statutes
I read with interest Friday's decision by the Virginia Supreme Court in the case of Ogunde v. Commonwealth. The choice was between Va. Code § 8.01-195.7, the limitations contained in the Virginia Tort Claims Act, and Va. Code § 8.01-243.2, the inmate limitations statute, which refers specifically to claims brought by persons in a state correctional facility pertaining to the conditions of their confinement. The opinion was written by the late Justice Compton.
And, the opinion concludes that the Tort Claims limitation applies, as the statute of "narrower" application. The question seems much closer to me than the opinion suggests. The Circuit Court might reasonably have concluded that the inmate statute is considerably "narrower" - the Tort Claims Act covers the entirety of state government, whereas the inmate statute is limited to the claims of state inmates related to the conditions of their confinement. The Supreme Court in its opinion sought to "harmonize" the two statutes, and to avoid the "implied" repeal of the earlier statute. A contrary view might be that the Court's decision makes meaningless the later statute as applied to state inmates.
The Court notes that the inmate statute might be applied to claims other than for money damages. This point seems off the mark. Statutes of limitations apply principally to claims for damages, and not claims for equitable relief. Indeed, the statute refers to a "personal action," a term of art defined elsewhere in Title 8.01's chapter on limitations to "include an action wherein a judgment for money is sought, whether for damages to person or property." Va. Code § 8.01-228. The timeliness of equitable claims is sometimes measured by equitable doctrines such as laches.
The point is not to say that the Court is wrong, but rather than its analysis fits with what I've been reading lately, which is the recent biography of Justice Sandra Day O'Connor by Joan Biskupic - Sandra Day O'Connor : How the First Woman on the Supreme Court Became Its Most Influential Justice. It is a lively and interesting book. One of the themes is to contrast the judicial philosophies of O'Connor and other justices, including Justice Scalia. Included in the book is the following quote from Justice Scalia:
"I don't think a judge is supposed to come up with the best result. He's supposed to come up with the result that the law demands. Almost always he's dealing with a text and almost always his job is to give the text the fairest, most reasonable interpretation. Only in that way is he being faithful to the democratic experiment. Sometimes you reach results that are not good results. That's because sometimes laws that are adopted are not good laws." I take this to mean that "harmonization" is not among Scalia's priorities.
By contrast, of Justice O'Connor, Professor Jeffries is quoted as saying: "She tries, first, to do justice on the facts of a particular case. Then she links the results in the case to general principles." All this appears in chapter 15, which is as far as I've gotten.
Applying this new-found knowledge, I would guess that this limitations opinion is more like O'Connor than Scalia, but not that there's anything wrong with that.
On the flip side, I also was interested in the Supreme Court's decision in the Front Royal Wal-Mart case, Jacabcin v. Front Royal. In that case, involving the controversial rezoning for the construction of a big box store in the town, two council members declared that they had conflicts of interest and refused to attend the meeting at which the rezoning to be decided. A third member also refused to show up, leaving only three members out of six. The three pressed on, relying on language in the Conflict of Interest Act, Va. Code § 2.2-3112(C), as an exception to the general requirement of a quorum under Va. Code § 15.2-1415. The Court in an opinion by Judge Russell concluded that the COIA was inapplicable, and the conflicted council members should have shown up for purposes of establishing a quorum, then managed to avoid participation in the discussion of the rezoning matter - even though the concept of "participation" is ill-defined, and the penalties for violation of COIA include the prospects of criminal prosecution and forfeiture of office. Va. Code §§ 2.2-3120 and 2.2-3122. The Court quotes language from 2.2-3112, about "the number required by law to act," then cites to the statute titled "At what meetings governing body may act," and concludes that the two statutes are totally unrelated. The Court discusses how the quorum requirement is important democracy, without addressing the effect that having present at the critical meeting those council members who were conflicted because of ties to one side the confidence of citizens or businesses supporting the other side.
The Front Royal Wal-Mart was the subject of high emotions, and there were many outraged opponents of the rezoning. The Wal-Mart people have now lost the case because conflicted legislators sought to avoid the appearance of impropriety. The former legislator O'Connor might have tried to find a way to salvage the town's vote. The Front Royal decision, as it applies a bright-line principle, with some inharmonious effects, seems to me more Scalia-like.
That's the problem with reading books, you get filled with ideas.
And, the opinion concludes that the Tort Claims limitation applies, as the statute of "narrower" application. The question seems much closer to me than the opinion suggests. The Circuit Court might reasonably have concluded that the inmate statute is considerably "narrower" - the Tort Claims Act covers the entirety of state government, whereas the inmate statute is limited to the claims of state inmates related to the conditions of their confinement. The Supreme Court in its opinion sought to "harmonize" the two statutes, and to avoid the "implied" repeal of the earlier statute. A contrary view might be that the Court's decision makes meaningless the later statute as applied to state inmates.
The Court notes that the inmate statute might be applied to claims other than for money damages. This point seems off the mark. Statutes of limitations apply principally to claims for damages, and not claims for equitable relief. Indeed, the statute refers to a "personal action," a term of art defined elsewhere in Title 8.01's chapter on limitations to "include an action wherein a judgment for money is sought, whether for damages to person or property." Va. Code § 8.01-228. The timeliness of equitable claims is sometimes measured by equitable doctrines such as laches.
The point is not to say that the Court is wrong, but rather than its analysis fits with what I've been reading lately, which is the recent biography of Justice Sandra Day O'Connor by Joan Biskupic - Sandra Day O'Connor : How the First Woman on the Supreme Court Became Its Most Influential Justice. It is a lively and interesting book. One of the themes is to contrast the judicial philosophies of O'Connor and other justices, including Justice Scalia. Included in the book is the following quote from Justice Scalia:
"I don't think a judge is supposed to come up with the best result. He's supposed to come up with the result that the law demands. Almost always he's dealing with a text and almost always his job is to give the text the fairest, most reasonable interpretation. Only in that way is he being faithful to the democratic experiment. Sometimes you reach results that are not good results. That's because sometimes laws that are adopted are not good laws." I take this to mean that "harmonization" is not among Scalia's priorities.
By contrast, of Justice O'Connor, Professor Jeffries is quoted as saying: "She tries, first, to do justice on the facts of a particular case. Then she links the results in the case to general principles." All this appears in chapter 15, which is as far as I've gotten.
Applying this new-found knowledge, I would guess that this limitations opinion is more like O'Connor than Scalia, but not that there's anything wrong with that.
On the flip side, I also was interested in the Supreme Court's decision in the Front Royal Wal-Mart case, Jacabcin v. Front Royal. In that case, involving the controversial rezoning for the construction of a big box store in the town, two council members declared that they had conflicts of interest and refused to attend the meeting at which the rezoning to be decided. A third member also refused to show up, leaving only three members out of six. The three pressed on, relying on language in the Conflict of Interest Act, Va. Code § 2.2-3112(C), as an exception to the general requirement of a quorum under Va. Code § 15.2-1415. The Court in an opinion by Judge Russell concluded that the COIA was inapplicable, and the conflicted council members should have shown up for purposes of establishing a quorum, then managed to avoid participation in the discussion of the rezoning matter - even though the concept of "participation" is ill-defined, and the penalties for violation of COIA include the prospects of criminal prosecution and forfeiture of office. Va. Code §§ 2.2-3120 and 2.2-3122. The Court quotes language from 2.2-3112, about "the number required by law to act," then cites to the statute titled "At what meetings governing body may act," and concludes that the two statutes are totally unrelated. The Court discusses how the quorum requirement is important democracy, without addressing the effect that having present at the critical meeting those council members who were conflicted because of ties to one side the confidence of citizens or businesses supporting the other side.
The Front Royal Wal-Mart was the subject of high emotions, and there were many outraged opponents of the rezoning. The Wal-Mart people have now lost the case because conflicted legislators sought to avoid the appearance of impropriety. The former legislator O'Connor might have tried to find a way to salvage the town's vote. The Front Royal decision, as it applies a bright-line principle, with some inharmonious effects, seems to me more Scalia-like.
That's the problem with reading books, you get filled with ideas.
Jaded JD, run amok
He's using the Brideshead characters in law school exams.
Which reminds me that I have a case now where one of the opposing lawyers is named Kara. The first time we spoke on the telephone, I had to ask, is that Cara with a 'C'? Back at the office they laugh at how easily I am distracted by obscure matters of this kind. (Cara was Lord Marchmain's mistress, an intimidating and mysterious figure to young Charles Ryder when he first went on holiday to Venice.)
Which reminds me that I have a case now where one of the opposing lawyers is named Kara. The first time we spoke on the telephone, I had to ask, is that Cara with a 'C'? Back at the office they laugh at how easily I am distracted by obscure matters of this kind. (Cara was Lord Marchmain's mistress, an intimidating and mysterious figure to young Charles Ryder when he first went on holiday to Venice.)
Thomas Eugene Worrell
The Bristol paper, formerly part of the Worrell chain, published this obituary for Thomas Eugene Worrell, and it says in part:
"He attended Wake Forest College on a debating scholarship where he distinguished himself as a champion orator. Graduating cum laude in 1940, he attended Wake Forest School of Law and earned his degree from George Washington School of Law. He met his wife and lifelong companion, Anne Everette Rowell, in Bristol, where she attended Virginia Intermont College.
He worked as a special agent with the Federal Bureau of Investigation during World War II and later practiced law in his hometown of Bristol. His community involvement led to his selection as "Young Man of the Year" and as Chamber of Commerce president he was influential in bringing several industries to the area after the war.
In 1949, he began a career as a newspaperman and, with his wife, founded The Virginia Tennessean newspaper in Bristol. This marked the beginning of Worrell Newspapers Inc., which became one of the largest chains of small dailies in the country. His purchase of The Daily Progress in 1970 prompted he and his wife to move to Charlottesville, where he lived until his death.
Upon moving to Charlottesville, he acquired "Pantops" farm for the corporate offices of Worrell Newspapers. He subsequently purchased adjacent properties and developed Peter Jefferson Place, one of the premiere office parks in the area, providing an outstanding working environment for many local and national businesses. Peter Jefferson Place will be the future home of Martha Jefferson Hospital.
In 1978, he transferred ownership of Worrell Newspapers to his son, Thomas E. Worrell Jr., and established Worrell Investment Company, where he has continued to serve as president. Worrell Investment Company's office is home to The Worrell Collection, an outstanding collection of wildlife art. The only collection of its magnitude in the country, it includes sculpture, paintings and antique Chinese jade. In 1979, he also founded Worrell Land and Cattle Company, premiere breeders of Limousin cattle.
His commitment to supporting pioneering initiatives at Wake Forest University spanned 30 years, beginning with the purchase of a house in London to be used as a residential study center. The Worrell House has been home to hundreds of faculty and students while they lived and studied in London. He had endowed several professorships and established the Robert Goldberg Award in Trial Advocacy. In 1993, he made a gift to the university to create the Worrell Professional Center for Law and Management. This was the first academic building in the country to house law and graduate management schools under one roof, sharing programs, faculty and students. In 1979, he received an honorary doctor of humanities degree and, in 2006 was awarded the Medallion of Merit Award. This award is Wake Forest's highest honor and is presented for outstanding achievement and distinguished contribution to the university."
"He attended Wake Forest College on a debating scholarship where he distinguished himself as a champion orator. Graduating cum laude in 1940, he attended Wake Forest School of Law and earned his degree from George Washington School of Law. He met his wife and lifelong companion, Anne Everette Rowell, in Bristol, where she attended Virginia Intermont College.
He worked as a special agent with the Federal Bureau of Investigation during World War II and later practiced law in his hometown of Bristol. His community involvement led to his selection as "Young Man of the Year" and as Chamber of Commerce president he was influential in bringing several industries to the area after the war.
In 1949, he began a career as a newspaperman and, with his wife, founded The Virginia Tennessean newspaper in Bristol. This marked the beginning of Worrell Newspapers Inc., which became one of the largest chains of small dailies in the country. His purchase of The Daily Progress in 1970 prompted he and his wife to move to Charlottesville, where he lived until his death.
Upon moving to Charlottesville, he acquired "Pantops" farm for the corporate offices of Worrell Newspapers. He subsequently purchased adjacent properties and developed Peter Jefferson Place, one of the premiere office parks in the area, providing an outstanding working environment for many local and national businesses. Peter Jefferson Place will be the future home of Martha Jefferson Hospital.
In 1978, he transferred ownership of Worrell Newspapers to his son, Thomas E. Worrell Jr., and established Worrell Investment Company, where he has continued to serve as president. Worrell Investment Company's office is home to The Worrell Collection, an outstanding collection of wildlife art. The only collection of its magnitude in the country, it includes sculpture, paintings and antique Chinese jade. In 1979, he also founded Worrell Land and Cattle Company, premiere breeders of Limousin cattle.
His commitment to supporting pioneering initiatives at Wake Forest University spanned 30 years, beginning with the purchase of a house in London to be used as a residential study center. The Worrell House has been home to hundreds of faculty and students while they lived and studied in London. He had endowed several professorships and established the Robert Goldberg Award in Trial Advocacy. In 1993, he made a gift to the university to create the Worrell Professional Center for Law and Management. This was the first academic building in the country to house law and graduate management schools under one roof, sharing programs, faculty and students. In 1979, he received an honorary doctor of humanities degree and, in 2006 was awarded the Medallion of Merit Award. This award is Wake Forest's highest honor and is presented for outstanding achievement and distinguished contribution to the university."
On the Ninth Circuit t-shirt case
I read Harper v. Poway Unified School District by Judge Reinhardt, and Judge Kozinski's dissent, and the Volokh Conspiracy posts here and here.
And, I think I agree with the proposition that Judge Reinhardt's opinion is horribly wrong, but the School Board should win the case anyhow.
And, I think I agree with the proposition that Judge Reinhardt's opinion is horribly wrong, but the School Board should win the case anyhow.
Too late for Floyd County prosecutor
Pursuant to HB 884, state law will soon provide: "The absence from the county or city of a constitutional officer by reason of his service in the Armed Forces of the United States shall not be deemed to create a vacancy in the office without a written notification by the officer of his resignation from the office. Notwithstanding any other provision of law, including § 19.2-156, the power to relieve a constitutional officer of the duties or powers of his office or position during the period of such absence shall remain the sole prerogative of the constitutional officer unless expressly waived by him in writing."
This would seem to overrule the Supreme Court's decision in the case of the Floyd County Commonwealth's Attorney who was sent to Iraq.
This would seem to overrule the Supreme Court's decision in the case of the Floyd County Commonwealth's Attorney who was sent to Iraq.
Should have tried Melancholy Baby
It says here: "the Connecticut Statewide Grievance Committee has officially reprimanded a lawyer for humming the Twilight Zone theme during a divorce hearing."
On taking attendance at local commission, board, and authority meetings
HB 1171, now passed into law, allows localities to remove appointees to various commissions and boards is the appointee misses three meetings in a row or four meetings in a year.
On the new Virginia VoIP service law
In HB 1198, the General Assembly has taken voice over internet protocol from the jurisdiction of the State Corporation, and immunized VOIP service providers from money damages for negligence related to the handling of emergency calls.
The new law contains this definition:
"Voice-over-Internet protocol service" or "VoIP service" means any service that: (i) enables real-time, two-way voice communications; (ii) requires a broadband connection from the user’s location; (iii) requires Internet protocol-compatible customer premises equipment (CPE); and (iv) permits users generally to receive calls that originate on the public switched telephone network and to terminate calls to the public switched telephone network.
The new law contains this definition:
"Voice-over-Internet protocol service" or "VoIP service" means any service that: (i) enables real-time, two-way voice communications; (ii) requires a broadband connection from the user’s location; (iii) requires Internet protocol-compatible customer premises equipment (CPE); and (iv) permits users generally to receive calls that originate on the public switched telephone network and to terminate calls to the public switched telephone network.
On the bond requirement for plaintiffs when appealing civil cases in Virginia state court
H 812 passed into law, and it will eliminate "the requirement that a plaintiff post a bond in order to appeal a judgment in cases where the defendant has not asserted a counterclaim."
Sixty per cent of lawyers have malpractice insurance?
HR 6 from the 2006 regular session says this:
"WHEREAS, attorneys have ethical and legal obligations to their clients; and
WHEREAS, as the number of attorneys licensed in the Commonwealth increases, the number of legal malpractice cases will also undoubtedly increase and some statistics even indicate that the number of legal malpractice cases is increasing at a faster rate than the increase in the number of attorneys; and
WHEREAS, malpractice insurance is not required to practice law in Virginia; however, statistics show that approximately 60% of attorneys in the United States have some malpractice coverage; and
WHEREAS, many malpractice policies do not cover illegal activities such as fraud or theft, and in cases where an attorney does not have malpractice coverage at all, it is possible that the injured client has no remedy; now, therefore, be it
RESOLVED by the House of Delegates, That the Supreme Court of Virginia and the Virginia State Bar be encouraged to consider the problem of uninsured attorneys. The Supreme Court of Virginia and the Virginia State Bar shall further consider some form of mandatory insurance for attorneys or an uninsured attorneys’ fund for client/victim compensation for malpractice committed by uninsured attorneys in the Commonwealth."
"WHEREAS, attorneys have ethical and legal obligations to their clients; and
WHEREAS, as the number of attorneys licensed in the Commonwealth increases, the number of legal malpractice cases will also undoubtedly increase and some statistics even indicate that the number of legal malpractice cases is increasing at a faster rate than the increase in the number of attorneys; and
WHEREAS, malpractice insurance is not required to practice law in Virginia; however, statistics show that approximately 60% of attorneys in the United States have some malpractice coverage; and
WHEREAS, many malpractice policies do not cover illegal activities such as fraud or theft, and in cases where an attorney does not have malpractice coverage at all, it is possible that the injured client has no remedy; now, therefore, be it
RESOLVED by the House of Delegates, That the Supreme Court of Virginia and the Virginia State Bar be encouraged to consider the problem of uninsured attorneys. The Supreme Court of Virginia and the Virginia State Bar shall further consider some form of mandatory insurance for attorneys or an uninsured attorneys’ fund for client/victim compensation for malpractice committed by uninsured attorneys in the Commonwealth."
Virginia's new cable franchise law
I've been studying the new cable franchise law. It adds to the lexicon the concept of the "ordinance cable franchise."
This blog post analyzes the concept, with the implication that the new law is favorable to the telephone companies, whether for good or for ill.
This VML update has some history. It says, in part:
"Final compromise reached on cable TV competition bill
After more than a year of off-and-on negotiations, a final deal has been struck on legislation designed to promote competition in the cable television industry. HB 1404 (Griffith) and SB 706 (Stolle), identical bills that rewrite how cable TV will be offered and regulated in Virginia, will have a significant effect on many local governments.
. . .
Background
Verizon began pushing for new rules in the 2005 session of the General Assembly. That bill failed, but discussions continued. VML negotiated with Verizon extensively during the 2005 session and into the fall of 2005. In the 2006 session two competing legislative proposals were introduced: one for Verizon and one for the cable TV industry. The four patrons of the bills put all of the industry representatives in a room with a mediator with the charge to develop a single proposal. Local governments were not allowed in the negotiations.
The results of the closed-door negotiations were SB 706 and HB 1404. VML and VACo started work on the bills once they were introduced at General Assembly committee meetings. The four patrons committed to receiving input from the two associations. VML and VACo solicited ideas from local governments and received about 20 suggested amendments. The associations drafted a joint set of amendments and presented them to the patrons and industry. During a meeting last week between industry representatives and VML and VACo, some 40 separate local government amendments were presented. Industry accepted many of the amendments and rejected others. Some were major and some were minor. The four patrons accepted all of the amendments to which the industry representatives agreed.
How the legislation works
The bill generally applies only when a business, usually a telephone company, comes to a locality to provide cable TV in competition with the existing cable operator. Prior to the time that a competitor comes to town, however, the only time the existing operator may use the provisions of the bill is when its franchise agreement is coming to an end or has ended. See Va. Code § 15.2-2108.30.
The existing company must continue to pay its franchise fees, as does the new company. In addition, the new company must pay additional fees so that its share of the total cost of public, educational and government access (PEG) programming and the cost of institutional networks (INET) are covered.
When the competitor comes to town, the locality enters negotiations for a franchise agreement. The agreement may not be more 'onerous' than the rules for the existing operators. (Va. Code § 15.2-2108.20.B) or that unreasonably prejudice either the new entrant or existing operator. This means that if an agreement is negotiated with the new company, the agreement will end up looking much like the existing franchise agreement.
To start the process, the new company files a request to negotiate a franchise. Then, it enters a too-short 45-day period of negotiations. The negotiations may go longer, but at the 46th day, the applicant may file notice that it will begin service in 30 days. Once that happens, the locality adopts a unilateral ordinance setting the rules. The ordinance terms are largely regulated by the new legislation. The process is set up so that the new company begins offering cable service without having received any authority to do so. The ordinance is retroactive to the date service began. The local government must adopt it within 120 days of the filing of the notice by the applicant."
The Northern Virginia Technology Council had this summary:
"These bills provide for a compromise measure which enables Verizon to enter local cable markets quicker while also seeking to provide a level competitive playing field for cable companies. Under the legislation, which now heads to Governor Kaine for his signature, localities would have 45 days to negotiate an agreement with Verizon and in the event an agreement is reached, cable providers would have the right to opt-in to the same terms and conditions as Verizon or to retain their existing agreements. In the event Verizon and a locality are unable to negotiate a deal and come to terms within 45 days, Verizon would be authorized to seek an "ordinance cable franchise" in which case Verizon could begin offering cable 30 days later and in which the case the locality would have 120 days to enact an ordinance that provides for Verizon's entry into the locality. The ordinance would have to extend terms and conditions comparable to those extended to the cable companies in regards to franchise fees, educational and governmental services, audits and reporting requirements, availability of the service to residents, rights of way fees and other provisions."
This blog post analyzes the concept, with the implication that the new law is favorable to the telephone companies, whether for good or for ill.
This VML update has some history. It says, in part:
"Final compromise reached on cable TV competition bill
After more than a year of off-and-on negotiations, a final deal has been struck on legislation designed to promote competition in the cable television industry. HB 1404 (Griffith) and SB 706 (Stolle), identical bills that rewrite how cable TV will be offered and regulated in Virginia, will have a significant effect on many local governments.
. . .
Background
Verizon began pushing for new rules in the 2005 session of the General Assembly. That bill failed, but discussions continued. VML negotiated with Verizon extensively during the 2005 session and into the fall of 2005. In the 2006 session two competing legislative proposals were introduced: one for Verizon and one for the cable TV industry. The four patrons of the bills put all of the industry representatives in a room with a mediator with the charge to develop a single proposal. Local governments were not allowed in the negotiations.
The results of the closed-door negotiations were SB 706 and HB 1404. VML and VACo started work on the bills once they were introduced at General Assembly committee meetings. The four patrons committed to receiving input from the two associations. VML and VACo solicited ideas from local governments and received about 20 suggested amendments. The associations drafted a joint set of amendments and presented them to the patrons and industry. During a meeting last week between industry representatives and VML and VACo, some 40 separate local government amendments were presented. Industry accepted many of the amendments and rejected others. Some were major and some were minor. The four patrons accepted all of the amendments to which the industry representatives agreed.
How the legislation works
The bill generally applies only when a business, usually a telephone company, comes to a locality to provide cable TV in competition with the existing cable operator. Prior to the time that a competitor comes to town, however, the only time the existing operator may use the provisions of the bill is when its franchise agreement is coming to an end or has ended. See Va. Code § 15.2-2108.30.
The existing company must continue to pay its franchise fees, as does the new company. In addition, the new company must pay additional fees so that its share of the total cost of public, educational and government access (PEG) programming and the cost of institutional networks (INET) are covered.
When the competitor comes to town, the locality enters negotiations for a franchise agreement. The agreement may not be more 'onerous' than the rules for the existing operators. (Va. Code § 15.2-2108.20.B) or that unreasonably prejudice either the new entrant or existing operator. This means that if an agreement is negotiated with the new company, the agreement will end up looking much like the existing franchise agreement.
To start the process, the new company files a request to negotiate a franchise. Then, it enters a too-short 45-day period of negotiations. The negotiations may go longer, but at the 46th day, the applicant may file notice that it will begin service in 30 days. Once that happens, the locality adopts a unilateral ordinance setting the rules. The ordinance terms are largely regulated by the new legislation. The process is set up so that the new company begins offering cable service without having received any authority to do so. The ordinance is retroactive to the date service began. The local government must adopt it within 120 days of the filing of the notice by the applicant."
The Northern Virginia Technology Council had this summary:
"These bills provide for a compromise measure which enables Verizon to enter local cable markets quicker while also seeking to provide a level competitive playing field for cable companies. Under the legislation, which now heads to Governor Kaine for his signature, localities would have 45 days to negotiate an agreement with Verizon and in the event an agreement is reached, cable providers would have the right to opt-in to the same terms and conditions as Verizon or to retain their existing agreements. In the event Verizon and a locality are unable to negotiate a deal and come to terms within 45 days, Verizon would be authorized to seek an "ordinance cable franchise" in which case Verizon could begin offering cable 30 days later and in which the case the locality would have 120 days to enact an ordinance that provides for Verizon's entry into the locality. The ordinance would have to extend terms and conditions comparable to those extended to the cable companies in regards to franchise fees, educational and governmental services, audits and reporting requirements, availability of the service to residents, rights of way fees and other provisions."
Thursday, April 20, 2006
Crime in Virginia 2005
Here on the Virginia State Police website is the report on Crime in Virginia 2005.
Shaggy dog and cat stories
In Florida, on the sentencing of a car thief, prosecutors argued as an aggravating factor that the car owner's dog was in the car when it was stolen. Doesn't this sound a little bit like that emotional distress for loss of dog case that was being reheard by the Virginia Supreme Court?
Near Roanoke, it says here that the Vinton library cat found a new home after it was evicted by the animal control officer from the public library; however, he "is still considered a symbolic part of the library staff."
Near Roanoke, it says here that the Vinton library cat found a new home after it was evicted by the animal control officer from the public library; however, he "is still considered a symbolic part of the library staff."
Maryland U.S. Attorney said to be considered for Fourth Circuit
The Baltimore Sun reports here that U.S. Attorney Rod J. Rosenstein of the District of Maryland, age 41, is under consideration for nomination to the U.S. Court of Appeals for the Fourth Circuit, to fill the seat still vacant since the death of Baltimore's own Judge Francis Murnaghan.
The article says that Senators Sarbanes and Mikulski are opposed to Rosenstein as a candidate for the judgeship. It also says that Rosenstein was a member of the Federal Society at Harvard Law School. The most fun quote comes from pundit Professor Turley, who says: "The Justice Department is not going to put a public defender on that court."
The article says that Senators Sarbanes and Mikulski are opposed to Rosenstein as a candidate for the judgeship. It also says that Rosenstein was a member of the Federal Society at Harvard Law School. The most fun quote comes from pundit Professor Turley, who says: "The Justice Department is not going to put a public defender on that court."
The duck finds work for Pennsylvania Republicans
From Pennsylvania, it says here:
"The Republican State Committee is attempting to drive Democrat Senate candidate Robert P. Casey Jr. quackers.
After claiming for months that Casey has been ducking the issues in his race against GOP incumbent Sen. Rick Santorum of Penn Hills, the committee last week debuted 'Bobby the Duck.'
The duck -- a person dressed up in white feathers, bill and full fowl regalia -- was sent to Casey's Harrisburg office, apparently to pin the state treasurer down on a position or two."
Could this be the same Duck from last year's Kaine campaign? Has the Duck become an institution for campaigns everywhere? Has there been a long history of Ducks previously unknown to me?
"The Republican State Committee is attempting to drive Democrat Senate candidate Robert P. Casey Jr. quackers.
After claiming for months that Casey has been ducking the issues in his race against GOP incumbent Sen. Rick Santorum of Penn Hills, the committee last week debuted 'Bobby the Duck.'
The duck -- a person dressed up in white feathers, bill and full fowl regalia -- was sent to Casey's Harrisburg office, apparently to pin the state treasurer down on a position or two."
Could this be the same Duck from last year's Kaine campaign? Has the Duck become an institution for campaigns everywhere? Has there been a long history of Ducks previously unknown to me?
On litter litigation
Rex Bowman has this report on Southwest Virginia localities plotting to sue the local litterbugs.
It says that Wise County has gotten some money judgments against litterers. Perhaps this makes their County Attorney Karen Mullins the most accomplished litter litigator among Southwest Virginia's local government attorneys.
It says that Wise County has gotten some money judgments against litterers. Perhaps this makes their County Attorney Karen Mullins the most accomplished litter litigator among Southwest Virginia's local government attorneys.
This week's travelogue
On Wednesday, I traveled to Roanoke to fulfill the requirement of additional training with CM/ECF so I can get the pleadings filed in what few bankruptcy cases I have to come to me via e-mail, and so I can file a paper or two in the two recent adversary proceedings I've initiated. I can't say that this was worthwhile, because we don't generally file debtor cases, and most of the rest was (fortunately) on track with what we already know from e-filing in the District Court.
But, we did eat afterward at the New Yorker Deli, which now has this website.
But, we did eat afterward at the New Yorker Deli, which now has this website.
On the religious exemption to the requirement of public school attendance
The Fredericksburg paper comments here on the state of the religious exemption from public school attendance in Virginia. The commentary begins:
"VIRGINIA LAW gives any school-age child a unique right: the right not to attend school.
If parents attest that it is against their faith to send their children to school, they can remove them without penalty or oversight. These children are religiously exempt from the state's compulsory attendance law. And unlike with home-schooled children, the state no longer monitors religiously exempt children's academic progress.
Some think the law is working just fine. Others say elected and school officials have abdicated their responsibility to children."
"VIRGINIA LAW gives any school-age child a unique right: the right not to attend school.
If parents attest that it is against their faith to send their children to school, they can remove them without penalty or oversight. These children are religiously exempt from the state's compulsory attendance law. And unlike with home-schooled children, the state no longer monitors religiously exempt children's academic progress.
Some think the law is working just fine. Others say elected and school officials have abdicated their responsibility to children."
Monday, April 17, 2006
The 500 best judges?
Here is somebody's list of America's 500 best judges.
It includes the usual suspects from the federal courts of appeals, and a bunch of other men and women with whom I'm mostly unfamiliar. The trial judge closest to home who appears on this list is probably Judge Goodwin from the S.D.W.Va. or Judge Osteen of the W.D.N.C.
It includes the usual suspects from the federal courts of appeals, and a bunch of other men and women with whom I'm mostly unfamiliar. The trial judge closest to home who appears on this list is probably Judge Goodwin from the S.D.W.Va. or Judge Osteen of the W.D.N.C.
Last week's travelogue
There was not much blogging, but I did attend important 18-hole conferences here and here.
A client with whom I spoke on Thursday morning said she thought I was working until I unwisely half-covered the phone and started hollering to someone downstairs about the 10:50 tee time.
The only new place where we ate was Catch 22, which was a pretty good place, we'll add that to the list of the usual suspects.
A client with whom I spoke on Thursday morning said she thought I was working until I unwisely half-covered the phone and started hollering to someone downstairs about the 10:50 tee time.
The only new place where we ate was Catch 22, which was a pretty good place, we'll add that to the list of the usual suspects.
This week in the Virginia Supreme Court
Looking at the current docket, there are many familiar names, including Steve Emmert (twice) and perhaps half a dozen Southwest Virginia cases.
THe case that has gotten continuing publicity is the Atkins case, on appeal from a jury verdict finding that he was not mentally retarded.
THe case that has gotten continuing publicity is the Atkins case, on appeal from a jury verdict finding that he was not mentally retarded.
Sunday, April 16, 2006
Another federal judge from Southwest Virginia
In 1938, Congress added a second judgeship for the Western District of Virginia. President Roosevelt, in defiance of the prerogatives of Virginia's Senators Glass and Byrd, gave a recess appointment to Judge Floyd Roberts of the Corporation Court for the City of Bristol. In the next session of Congress, the U.S. Senate, in defiance of President Roosevelt, shot down the Roberts nomination by a vote of 72-9. In place of Roberts, Roosevelt appointed the dean of the University of Virginia law school, Armistead M. Dobie, who was shortly thereafter appointed and confirmed to sit on the Fourth Circuit.
Of the power struggle between the branches of government, Time magazine supposedly wrote this, in its February 13, 1939 edition:
"Senatorial courtesy is the custom by which Presidential appointees 'personally offensive or obnoxious' to Senators from their State are not confirmed by the Senate. Last week Virginia's tart old Carter Glass and his junior colleague, Harry Flood Byrd, found obnoxious the appointment of Judge Floyd Roberts of the Corporation Court of Bristol to a Federal District judgeship. Reason: he had 'lent himself to a conspiracy,' of which the other partners were Governor James H. Price and Franklin Roosevelt, to flout the Glass-Byrd patronage prerogative. The Judiciary Committee thumbs-downed Judge Roberts, 15-to-3. The Senate concurred, 72-to-9. Franklin Roosevelt promised to write Judge Roberts a right interesting letter before making another appointment. Snorted Carter Glass: 'I think he'll send up a more objectionable one—if he can find it.'"
Of the power struggle between the branches of government, Time magazine supposedly wrote this, in its February 13, 1939 edition:
"Senatorial courtesy is the custom by which Presidential appointees 'personally offensive or obnoxious' to Senators from their State are not confirmed by the Senate. Last week Virginia's tart old Carter Glass and his junior colleague, Harry Flood Byrd, found obnoxious the appointment of Judge Floyd Roberts of the Corporation Court of Bristol to a Federal District judgeship. Reason: he had 'lent himself to a conspiracy,' of which the other partners were Governor James H. Price and Franklin Roosevelt, to flout the Glass-Byrd patronage prerogative. The Judiciary Committee thumbs-downed Judge Roberts, 15-to-3. The Senate concurred, 72-to-9. Franklin Roosevelt promised to write Judge Roberts a right interesting letter before making another appointment. Snorted Carter Glass: 'I think he'll send up a more objectionable one—if he can find it.'"
Roger Groot Professionalism Award goes to Judge Turk
The Roanoke paper reports here that the Ted Dalton American Inn of Court has awarded the first annual Roger Groot Professionalism Award to Senior U.S. District Judge James C. Turk.
On freeware utilities
This page boasts of 300+ common problems solved with freeware utilities.
Some of them look interesting.
Some of them look interesting.
Governor Kaine takes on first clemency request
Howard Bashman has this post with links to this Richmond newspaper story and this Washington Post story about the first clemency petition in a death penalty case to hit the desk of Governor Kaine.
The Post quotes Kaine as saying during the campaign: "I'll enforce the death penalty. As governor, I'll carry out death sentences handed down by Virginia juries, because that's the law." As I wrote back then, talk of "enforcing" the death penalty makes no sense. The law gives a governor the power to do whatever he wants in granting clemency. Of course, during the campaign, and perhaps now, Kaine may have been listening to the political people in making his choice of words.
The Post quotes Kaine as saying during the campaign: "I'll enforce the death penalty. As governor, I'll carry out death sentences handed down by Virginia juries, because that's the law." As I wrote back then, talk of "enforcing" the death penalty makes no sense. The law gives a governor the power to do whatever he wants in granting clemency. Of course, during the campaign, and perhaps now, Kaine may have been listening to the political people in making his choice of words.
On sexual harassment and the UNC soccer team
In Jennings v. University of North Carolina, the Fourth Circuit in an opinion by District Judge Dever, joined by Judge Karen Williams with Judge Michael dissenting in part, affirmed summary judgment for the defendants in a case where a female soccer player at the University of North Carolina brought claims under Title IX and Section 1983 and North Carolina state law claiming that she was subjected to a hostile sexual environment on the soccer team.
Judge Dever wrote: "Laws prohibiting sexual harassment are designed to protect people at work and at school from the kind of extreme conduct that can make work or school hellish because of the person’s sex. The laws, however, are not designed to purge or punish all vulgarity at work or in universities. Whether conduct constitutes actionable sexual harassment cannot be divorced from the context in which the alleged harassment arose. Thus, a court evaluating a sexual harassment claim must examine the constellation of surrounding circumstances, expectations, and relationships."
Judge Michael agreed on the law but disagreed on the facts.
The case was filed in 1998, summary judgment granted in 2004.
Judge Dever wrote: "Laws prohibiting sexual harassment are designed to protect people at work and at school from the kind of extreme conduct that can make work or school hellish because of the person’s sex. The laws, however, are not designed to purge or punish all vulgarity at work or in universities. Whether conduct constitutes actionable sexual harassment cannot be divorced from the context in which the alleged harassment arose. Thus, a court evaluating a sexual harassment claim must examine the constellation of surrounding circumstances, expectations, and relationships."
Judge Michael agreed on the law but disagreed on the facts.
The case was filed in 1998, summary judgment granted in 2004.
The Daubert ruling on mold upheld in Roche v. Lincoln Property
In one of the wildest of reversal of fortune cases, that has gone to the Supreme Court and back, in the latest chapter of the Roche v. Lincoln Property case, the Fourth Circuit in an unpublished opinion by Judge Gregory, joined by Judge Widener and Judge Beam from the Eighth Circuit, held that the trial court did not err in the exclusion of the plaintiff's expert on the issue whether the mold caused the plaintiffs' respiratory ailments, and otherwise affirmed the summary judgment on the merits entered by the district court for the E.D. Va.
The opinion is full of interesting Virginia law issues, and should have been published, in my view.
The opinion is full of interesting Virginia law issues, and should have been published, in my view.
Saturday, April 15, 2006
Print the world over at Kinko's
The Georgia Lawyer links here to the Practice Blog on how to use Kinko's to print anywhere there is a Kinko's.
This is just the kind of thing that I will try, but then I just got back from Hilton Head, where I made use of the Wi-Fi at McDonald's. There is indeed wireless at the McDonald's on the main drag near the Sea Pines Circle, and also at an internet cafe in Coligny Plaza, and I suspect some other places as well, run by this outfit, or so it would appear.
This is just the kind of thing that I will try, but then I just got back from Hilton Head, where I made use of the Wi-Fi at McDonald's. There is indeed wireless at the McDonald's on the main drag near the Sea Pines Circle, and also at an internet cafe in Coligny Plaza, and I suspect some other places as well, run by this outfit, or so it would appear.
Judge Stump rules for the media in Bristol 911 case
The Bristol paper reports here and here that the City of Bristol lost in the Freedom of Information Act case brought by the newspaper seeking disclosure of the recording of the 911 call placed by a Bristol woman who has since been charged with the death of her child.
The Bristol paper's website remains the worst in America.
The Bristol paper's website remains the worst in America.
Ford Motor Company loses the battle, wins the war in W.D. Va. case
In the latest chapter of the long-running case of Tunnell v. Ford Motor Company, Judge Urbanski recommends discovery sanctions against the defendant but denies the plaintiff's requests for either a new trial or entry of a default judgment.
On the late Justice Compton
The Washington & Lee website has this obituary for Senior Justice A. Christian Compton of the Virginia Supreme Court, on which he had served since 1974.
Some time ago, I met Chief Justice Hassell, who asked me if I had appeared before his Court, and I told him the following story about my second appearance before the Virginia Supreme Court:
Me: "Justice Compton glared at me and said, 'Mr. Minor, what you're saying can't possibly be true."
Chief Justice Hassell: "Then I bet it wasn't true."
Me: "You're right, the Court was unanimous on that point."
Some time ago, I met Chief Justice Hassell, who asked me if I had appeared before his Court, and I told him the following story about my second appearance before the Virginia Supreme Court:
Me: "Justice Compton glared at me and said, 'Mr. Minor, what you're saying can't possibly be true."
Chief Justice Hassell: "Then I bet it wasn't true."
Me: "You're right, the Court was unanimous on that point."
Sunday, April 09, 2006
On those loathsome red light cameras
The sentencing guidelines as the pinnacle of reasonableness
In U.S. v. Johnson, the Fourth Circuit in an opinion by Judge Wilkinson, joined by Chief Judge Wilkins and Judge Luttig, explained why it is that a sentence within the federal sentencing guidelines carries a presumption of reasonableness.
Judge Wilkinson wrote:
(1) "The first reason that Guidelines sentences are presumptively reasonable under Booker is the legislative and administrative process by which they were created."
(2) "The second reason that Guidelines sentences are presumptively reasonable is that the process described above has led to the incorporation into the Guidelines of the factors Congress identified in 18 U.S.C.A. § 3553(a) as most salient in sentencing determinations."
(3) "the third reason why Guidelines sentences must be treated as presumptively reasonable . . . [is] that such sentences are based on individualized factfinding and this factfinding takes place in a process that invites defendants to raise objections and requires courts to resolve them."
Professor Berman says, even if all that's true, there still can be unreasonableness.
Judge Wilkinson wrote:
(1) "The first reason that Guidelines sentences are presumptively reasonable under Booker is the legislative and administrative process by which they were created."
(2) "The second reason that Guidelines sentences are presumptively reasonable is that the process described above has led to the incorporation into the Guidelines of the factors Congress identified in 18 U.S.C.A. § 3553(a) as most salient in sentencing determinations."
(3) "the third reason why Guidelines sentences must be treated as presumptively reasonable . . . [is] that such sentences are based on individualized factfinding and this factfinding takes place in a process that invites defendants to raise objections and requires courts to resolve them."
Professor Berman says, even if all that's true, there still can be unreasonableness.
On Virginia privacy laws from the pharmacists' perspective
Via the HIPAA blog, here is a trade organization for chain drugstores analyzes the privacy laws as related to pharmacies in all 50 states, including Virginia.
On rethinking law school
Various blogs have linked to this article in the U.S. News & World Report questioning the status quo in legal education.
The article notes: "A recent study by the Indiana University Center for Postsecondary Research found that law students are increasingly disengaged and work less as grad school progresses."
It also says: "Still, some detractors believe that ABA requirements are designed to protect professors and current practitioners, as opposed to students, and are tantamount to a monopoly."
It concludes: "However the field of legal education evolves, it's worth pondering the advice of Abraham Lincoln, who famously studied the field on his own in Illinois before acing his "bar exam"--a 10-minute discussion with a local judge--and going on to practice for 25 years prior to being elected president. In an 1858 letter to a young man with dreams of entering the profession, he offered this counsel: "If you wish to be a lawyer, attach no consequence to the place you are in, or the person you are with; but get books, sit down anywhere, and go to reading for yourself." Even for the bulk of students who flock to ABA-approved schools, the notion that it's not so much where you train but how committed you are to that preparation still rings true today."
From the other end zone, this post suggests that the ABA is a more reliable bunch than the association of law school deans.
The article notes: "A recent study by the Indiana University Center for Postsecondary Research found that law students are increasingly disengaged and work less as grad school progresses."
It also says: "Still, some detractors believe that ABA requirements are designed to protect professors and current practitioners, as opposed to students, and are tantamount to a monopoly."
It concludes: "However the field of legal education evolves, it's worth pondering the advice of Abraham Lincoln, who famously studied the field on his own in Illinois before acing his "bar exam"--a 10-minute discussion with a local judge--and going on to practice for 25 years prior to being elected president. In an 1858 letter to a young man with dreams of entering the profession, he offered this counsel: "If you wish to be a lawyer, attach no consequence to the place you are in, or the person you are with; but get books, sit down anywhere, and go to reading for yourself." Even for the bulk of students who flock to ABA-approved schools, the notion that it's not so much where you train but how committed you are to that preparation still rings true today."
From the other end zone, this post suggests that the ABA is a more reliable bunch than the association of law school deans.
Why the McDonnell-Douglas proof scheme is unjustified
This Workplace Prof Blog post links to a provocative article titled Flying Without a Statutory Basis: Why McDonnell-Douglas is Not Justified by Any Statutory Construction Methodology.
The abstract notes that "courts have begun to water down or eliminate McDonnell-Douglas' use as an evidentiary standard by juries." That's an understatement. Some might say that the shifting-burden scheme conjured up by the Supreme Court for employment discrimination cases was never intended for use by juries, and cannot be made comprehensible to juries.
The abstract notes that "courts have begun to water down or eliminate McDonnell-Douglas' use as an evidentiary standard by juries." That's an understatement. Some might say that the shifting-burden scheme conjured up by the Supreme Court for employment discrimination cases was never intended for use by juries, and cannot be made comprehensible to juries.
State bar exempt from NLRA as a political subdivision
It says here that the NLRB has determined that the workers of the state bar (in New Mexico) are not covered by the National Labor Relations Act.
Saturday, April 08, 2006
On the defendants' bond in the Stacy McCray case
In U.S. v. Parris, Chief Judge Jones, on review of the defendant's bond set by Magistrate Judge Sargent, ruled that the defendant would be detained without bond until trial.
Stacy McCray disappeared from Abingdon and her body was later found in the Jefferson National Forest. The defendant is charged with conspiracy and obstruction of justice, not murder. The indictment alleges that the defendant hid Ms. McCray in the forest to hide his illegal drug activities.
Stacy McCray disappeared from Abingdon and her body was later found in the Jefferson National Forest. The defendant is charged with conspiracy and obstruction of justice, not murder. The indictment alleges that the defendant hid Ms. McCray in the forest to hide his illegal drug activities.
W.D. Va. personal injury case dismissed with prejudice for fraud on the court
In Sprester v. Jones Motor Company, Judge Wilson of the W.D. Va. dismissed the plaintiff's claim with prejudice for fraud on the court, related to her apparent lies about her pre-existing back injuries, and ordered her to pay the defendant's attorneys' fees and costs.
Failure to object to presentencing report does not create admissions
In U.S. v. Milam, the Fourth Circuit in an opinion by Judge Niemeyer, joined by Judge Gregory with Judge Shedd concurring in part and dissenting in part, applied the Supreme Court's Booker decision in overturning the defendants' sentences to more than the statutory minimum based on facts contained in the presentence report, to which the defendants failed to object. The case involved the distribution of Ecstacy in the area of Beckley, West Virginia.
Dismissal of claim under Fair Debt Collection Practices Act against foreclosure lawyers reversed
In Wilson v. Draper & Goldberg, PLLC, the Fourth Circuit in an opinion by Judge Traxler, joined by Judge Wilkinson with Judge Widener dissenting, reversed the dismissal of a claim brought against some lawyers under the Fair Debt Collection Practices Act for initiating foreclosure proceedings against the plaintiff, concluding that the lawyers even though acting as substitute trustees were "debt collectors" within the meaning of the Act.
How retired Justice O'Connor got to be William & Mary Chancellor
According to this story in the Williamsburg paper, the head of the student government thinks that Justice O'Connor looks good in a robe, whether it is black or green and gold.
Prosecutor as litigant gets no joy in pier building case
In Palmer v. Commonwealth of Virginia Marine Resources Commission, the Virginia Court of Appeals in an opinion by Judge Frank joined by Chief Judge Felton and Judge Clements rejected the appeal brought by King William County Commonwealth's attorney Stephen Palmer over the building on the pier on his property in Mathews County. The Newport News paper has this story about the case.
Chief Judge Felton? The opinion notes that Judge Felton became Chief Judge on April 1, succeeding Judge Fitzpatrick.
Chief Judge Felton? The opinion notes that Judge Felton became Chief Judge on April 1, succeeding Judge Fitzpatrick.
Questions addressed to traffic stop detainee don't violate Miranda
In Com. v. Briggs, the Virginia Court of Appeals in an unpublished opinion by Judge Humphreys joined by Judge Frank and Kelsey overruled the trial court's suppression of evidence of drug paraphernalia obtained in a traffic stop.
The Newport News paper had this report on the case.
The Newport News paper had this report on the case.
On representational standing in Virginia
In Chesapeake Bay Foundation, Inc. v. Com., the Virginia Court of Appeals in an opinion by Judge Elder joined by Judge Humphreys and Senior Judge Coleman overruled the dismissal for lack of standing of a challenge brought by the CBF against a permit issued by the State Water Control Board. The AP had this story on the case.
One of the arguments, strangely enough, was that the panel should have ignored the Court's earlier panel decision in Chesapeake Bay Foundation and Citizens of Stumpy Lake v. Commonwealth, 46 Va. App. 104, 616 S.E.2d 39 (2005). On this point, Judge Elder wrote:
"Appellees recognize that stare decisis may bind us to follow the decision in Stumpy Lake. Nevertheless, quoting Commonwealth v. Burns, 240 Va. 171, 174, 395 S.E.2d 456, 457 (1990), they argue we are not so bound if we find that the decision in Stumpy Lake was based on 'flagrant error or mistake.' Appellees misconstrue the holding in Burns, which permits this Court to correct '"flagrant error or mistake"' in a panel decision . . . through the en banc hearing process.' Burns, 240 Va. at 174, 395 S.E.2d at 457. Contrary to appellees’ assertions, Burns affirms the principle that the decision of one panel is binding on all other panels unless and until reversed by the Court sitting en banc or by a higher court on appeal."
It sounds like this is not an issue that will soon die out for lack of interest, if the Commonwealth's lawyers think the Virginia Court of Appeals has got it wrong.
One of the arguments, strangely enough, was that the panel should have ignored the Court's earlier panel decision in Chesapeake Bay Foundation and Citizens of Stumpy Lake v. Commonwealth, 46 Va. App. 104, 616 S.E.2d 39 (2005). On this point, Judge Elder wrote:
"Appellees recognize that stare decisis may bind us to follow the decision in Stumpy Lake. Nevertheless, quoting Commonwealth v. Burns, 240 Va. 171, 174, 395 S.E.2d 456, 457 (1990), they argue we are not so bound if we find that the decision in Stumpy Lake was based on 'flagrant error or mistake.' Appellees misconstrue the holding in Burns, which permits this Court to correct '"flagrant error or mistake"' in a panel decision . . . through the en banc hearing process.' Burns, 240 Va. at 174, 395 S.E.2d at 457. Contrary to appellees’ assertions, Burns affirms the principle that the decision of one panel is binding on all other panels unless and until reversed by the Court sitting en banc or by a higher court on appeal."
It sounds like this is not an issue that will soon die out for lack of interest, if the Commonwealth's lawyers think the Virginia Court of Appeals has got it wrong.
SW Virginia lawyer named to U.Va. board
The Charlottesville paper reported here that Norton lawyer Don Pippin would be named to the Board of Visitors for the University of Virginia.
Thursday, April 06, 2006
Another blogger in the Wise County courthouse
I was in Wise yesterday and went down to have a short word with the clerk of court, Mr. Kennedy, who told me among other things that he has a blog about space law.
I first met Jack Kennedy in the summer of 1985, when I interviewed him for a paper about the '84 Rick Boucher campaign. He is as much a cyberdog as any circuit court clerk in the Commonwealth.
I first met Jack Kennedy in the summer of 1985, when I interviewed him for a paper about the '84 Rick Boucher campaign. He is as much a cyberdog as any circuit court clerk in the Commonwealth.
Tuesday, April 04, 2006
On PC recycling
Here at Bacon's they've got a link to computer recycling events across Virginia this month.
Unfortunately, none are in Abingdon or Bristol. Maybe I should take my old monitors up to Clintwood before April 8, set them on the porch of this building, ring the doorbell and make a run for it.
Unfortunately, none are in Abingdon or Bristol. Maybe I should take my old monitors up to Clintwood before April 8, set them on the porch of this building, ring the doorbell and make a run for it.
Stuff I missed last week
This hand-written divorce petition, described as the most remarkable document of its kind, and the nearly as remarkable rest of the story, were only part of what the law bloggers were talking about last week.
On reforming the jury system
One of the topics of recent interest has been the ABA principles related to juries and jury trials.
VTLA listserv and appellate law guru Steve Emmert filed a report today on his experience on the venire of a federal case, and reached this conclusion:
"But I was struck by how put-upon the venire felt when they were summoned to 'hurry up and wait.' This was a part of the trial over which the lawyers had almost no control, so it's unfair to pin the blame for this on the bar. But you should know that this ill will necessarily spills over to the attorneys, as a part of the entire boring process for jurors. I really do not envy the government's lawyers, who will be putting on a document-intensive case that will last perhaps two or three days, with THIS for a warm-up.
The lesson I perceive here is that we should go out of our way to respect the jurors' time, during that part of the case we CAN control. It means more motions in limine, to avoid bench conferences (which are perceived as demeaning to and by veniremen) and to avoid endless matters taken up while the jury is sent into its little room. It means streamlining things whenever possible; we have all seen advice that a shorter, more concise presentation will work better on jurors, and here's a good reason why. The delays I saw today were primarily due to the court system, not to the lawyers, so addressing those will probably require a conversation with the court at some point. This assumes the suggestion will not be rebuked with a 'That's the way we've always done it,' but I plan to try anyway, once this trial is over."
VTLA listserv and appellate law guru Steve Emmert filed a report today on his experience on the venire of a federal case, and reached this conclusion:
"But I was struck by how put-upon the venire felt when they were summoned to 'hurry up and wait.' This was a part of the trial over which the lawyers had almost no control, so it's unfair to pin the blame for this on the bar. But you should know that this ill will necessarily spills over to the attorneys, as a part of the entire boring process for jurors. I really do not envy the government's lawyers, who will be putting on a document-intensive case that will last perhaps two or three days, with THIS for a warm-up.
The lesson I perceive here is that we should go out of our way to respect the jurors' time, during that part of the case we CAN control. It means more motions in limine, to avoid bench conferences (which are perceived as demeaning to and by veniremen) and to avoid endless matters taken up while the jury is sent into its little room. It means streamlining things whenever possible; we have all seen advice that a shorter, more concise presentation will work better on jurors, and here's a good reason why. The delays I saw today were primarily due to the court system, not to the lawyers, so addressing those will probably require a conversation with the court at some point. This assumes the suggestion will not be rebuked with a 'That's the way we've always done it,' but I plan to try anyway, once this trial is over."
One for the Blackberry and Treo crowd
Via Dennis Kennedy and Martin Geddes, this story tells of the increasing choice among some to be buried with their cellphones.
Monday, April 03, 2006
Another reason to like Sharon Randall
She wrote here that her son took to the Final Four, where she was pulling on Saturday for George Mason.
Old Zach and SST sign off
Old Zach and the SST gang are calling it quits.
Hey, Old Zach, you know where we are, come see us again.
Hey, Old Zach, you know where we are, come see us again.
Bristol's own Jack Trayer
BRISTOL, Va. – Herbert Malcolm "Jack" Trayer, age 97, passed away on Saturday, April 1, 2006, at his home.
He was born in Daves, W.Va., in 1909, to the late Charles H. and Georgia Toney Trayer, and was raised in Pounding Mill.
He moved to Bristol in 1927 to begin a successful career of entrepreneurship in the restaurant-hospitality and food service industries. Jack's name was on many of Bristol's best known restaurants including Trayer's and Trayer's Too, but Jack will be best remembered for his support and service to the Bristol community and the Commonwealth of Virginia.
Red, White and Blue Bar-B-Que was Trayer's first restaurant in Bristol and opened in 1927 on Moore Street. Jack continued his long business career after valiant service in the U.S. Navy. He partnered with Homer Jones and Morris Ross to build the first Holiday Inn in Bristol in 1958. Later, he partnered with Carl Moore and Homer Jones to develop other hotels in Bristol, Johnson City, Kingsport, Greeneville and Marion. Jack also developed a chain of grocery stores called Trayer's Food Shop.
Jack was a former president of the Virginia Restaurant Association and in that role led the 1960s fight for racial integration on a state level. Jack served Govs. Robb, Baliles and Wilder as a member of the Governor's Council on Tourism.
In this role, Jack often represented Bristol and Southwest Virginia internationally.
Jack was a generous supporter of a multitude of community organizations, including the March of Dimes, the YMCA, Bristol Ballet, Girls, Incorporated and Barter Theatre. Jack conceived the idea of the Community Christmas Dinner held at Emmanuel Episcopal Church, now in its 25th year.
Jack was a strong supporter of the region's colleges. In the late '40s, he made a pledge to then Sullins College, followed by an endowment at King College and led restoration of the Virginia Intermont College performing arts theatre.
He was long-time member and supporter of the Rotary Club of Bristol, was a Rotary International Paul Harris Fellow and sponsored the Annual Rotary Christmas Luncheon for many years.
In 1992, Trayer was inducted by the Bristol Regional Medical Center Foundation into the Citizen Hall of Fame, recognizing his being a "great champion of our community."
He was born in Daves, W.Va., in 1909, to the late Charles H. and Georgia Toney Trayer, and was raised in Pounding Mill.
He moved to Bristol in 1927 to begin a successful career of entrepreneurship in the restaurant-hospitality and food service industries. Jack's name was on many of Bristol's best known restaurants including Trayer's and Trayer's Too, but Jack will be best remembered for his support and service to the Bristol community and the Commonwealth of Virginia.
Red, White and Blue Bar-B-Que was Trayer's first restaurant in Bristol and opened in 1927 on Moore Street. Jack continued his long business career after valiant service in the U.S. Navy. He partnered with Homer Jones and Morris Ross to build the first Holiday Inn in Bristol in 1958. Later, he partnered with Carl Moore and Homer Jones to develop other hotels in Bristol, Johnson City, Kingsport, Greeneville and Marion. Jack also developed a chain of grocery stores called Trayer's Food Shop.
Jack was a former president of the Virginia Restaurant Association and in that role led the 1960s fight for racial integration on a state level. Jack served Govs. Robb, Baliles and Wilder as a member of the Governor's Council on Tourism.
In this role, Jack often represented Bristol and Southwest Virginia internationally.
Jack was a generous supporter of a multitude of community organizations, including the March of Dimes, the YMCA, Bristol Ballet, Girls, Incorporated and Barter Theatre. Jack conceived the idea of the Community Christmas Dinner held at Emmanuel Episcopal Church, now in its 25th year.
Jack was a strong supporter of the region's colleges. In the late '40s, he made a pledge to then Sullins College, followed by an endowment at King College and led restoration of the Virginia Intermont College performing arts theatre.
He was long-time member and supporter of the Rotary Club of Bristol, was a Rotary International Paul Harris Fellow and sponsored the Annual Rotary Christmas Luncheon for many years.
In 1992, Trayer was inducted by the Bristol Regional Medical Center Foundation into the Citizen Hall of Fame, recognizing his being a "great champion of our community."
Back in the saddle
After much driving, I'm back from the Virginia Bar Association board of governors' meeting in Norfolk.
I got there on Friday in time to see the Doo Dah Parade. Later on Friday, we met a whole army of Norfolk Southern lawyers at their building, and still later we ate at 456 Fish. On Saturday, we went to Norfolk Southern's Lamberts Point Pier 6 coal-loading facility, as well as the Norfolk International Terminals, and later we went to see the French Impressionist exhibit and eat dinner at the Chrysler Museum. On Sunday morning, we were the guests of Bill Van Buren and his wife Katie.
And, there were some business meetings.
I got there on Friday in time to see the Doo Dah Parade. Later on Friday, we met a whole army of Norfolk Southern lawyers at their building, and still later we ate at 456 Fish. On Saturday, we went to Norfolk Southern's Lamberts Point Pier 6 coal-loading facility, as well as the Norfolk International Terminals, and later we went to see the French Impressionist exhibit and eat dinner at the Chrysler Museum. On Sunday morning, we were the guests of Bill Van Buren and his wife Katie.
And, there were some business meetings.
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