Saturday, January 14, 2006

From the way, wayback machine - the next-to-last governor's inauguration in Williamsburg

Charlottesville's Bob Gibson has this timely report on the subdued circumstances of the swearing-in of Thomas Jefferson as the Governor of Virginia in 1779.

Friday's opinions from the Virginia Supreme Court

To get into the latest round of Virginia Supreme Court decisions, start with the court's synopsis page and Steve Emmert's website.

I must confess that the most interesting case to me so far is the mechanic's lien issue in Britt Construction, Inc. v. Magazzine Clean, LLC, where the Court held Va. Code § 43-4 "requires that a general contractor, as a condition of perfecting a mechanic’s lien, contemporaneously file with the memorandum of lien a 'certification' that a copy of the memorandum has been mailed to the property owner."

One of the interesting things about is to eliminate some of the high-stakes ambiguity about how to perfect a mechanic's lien, the General Assembly has codified a "safe harbor" form, which was was nonetheless relegated to this footnote in the Court's opinion:

"The absence of any reference to a certification of mailing in the 'safe harbor' form of Code § 43-5 does not affect our analysis of Code § 43-4. That form addresses only the sufficiency of a memorandum of lien and affidavit filed under Code § 43-4. Also, the 'safe harbor' forms of Code §§ 43-8 and –10 are not relevant to the issue before us because they pertain to subcontractors and to persons furnishing labor or materials to a subcontractor and, thus, do not affect the unambiguous requirements imposed on a general contractor by Code § 43-4."

Unless my memory is mistaken, I've seen a circuit court rule the other way on the issue of this appeal.

Whoa, the President keeping campaign promises, high-powered nominees turning out to be high-powered

Via How Appealing, this Sunday NY Times article titled Democrats See Wide Bush Stamp on Court System apparently says that some Democrats are appalled that President Bush is following through on his campaign pledge to nominate conservaties to the federal bench, and that the two Supreme Court nominees have known their stuff too well to be affected by the sometimes less-than-spirited, sometimes mean-spirited cross-examination by the Democrats on the Senate Judiciary Committee.

My two impressions of the Alito hearings, of which I watched and read a great deal, were these: (1) Alito is outstanding in every way, yet another example of a system that somehow produces good outcomes in spite of itself, and (2) the Democratic Senators were not doing a very good job. I mean, that CAP stuff was nonsense, the Vanguard stuff was nonsense, the 1980s memos were nonsense, and for every Alito case or Alito opinion the Democrats cited, the Republicans could cite that many more.

The only point that any of them made that made any sense to me is how do Alito or Roberts decide which areas of the law are settled and which are not - although not because I agree with the Democrats that there are more settled areas, but because I suspect there are fewer - and everyone knows it. If Professors Tribe and Chemerinsky (two names at random) were on the Supreme Court, some precedents would fall, as surely as some precedents may fall with Sam Alito instead of Sandra Day O'Connor on the Supreme Court.

My favorite part of the hearing was the testimony of the Third Circuit judges, particularly Judge Aldisert, at age 86. I suppose but for the fickle pick of fate, he might have been on the Supreme Court, if say President Johnson had been re-elected - which gets back to the Times article, which concludes with the point that some Democrats acknowledge the only thing to do to change the course of events is to win elections, as their strategems to gum up the nomination process has not worked.

Fourth Circuit puts the brakes on district court sentencing discretion

This post from Decision of the Day begins:

"Today, the Fourth Circuit remands a case in which District Judge Brinkema [of the E.D. Va.] sentenced a drug defendant to the eight months she would have received under state law as opposed to the 46-57 months recommended by the federal guidelines. The Court takes issue with the judge’s failure to consider the risk of disparity in sentences among federal defendants, most of whom would not be so lucky as to have a Judge Brinkema presiding over their criminal trials. The court also holds that it is unreasonable to consider state sentences in determining a federal sentence except in unusual circumstances."

Professor Berman has this interesting post about the case, and he wrote: "I've now had a chance to read Clark closely, and it is first-rate work by all the judges. Even Judge Luttig's opinion, which is most emphatic about the error in considering state sentencing practices, includes the important and valuable caveat that 'the consideration of state sentencing practices is not necessarily impermissible per se.'"

The case was U.S. v. Clark, and each member of the panel of Judges Luttig, Motz, and King wrote separate opinions.

In recent years, I've heard a lot about the perceived sentencing disparity between the federal courts and Virginia state court. Someone is alleged to have once famously declared that for possession of OxyContin, in federal court a defendant gets four years in the penitentiary, where as in state court for the same offense, the defendant would get probation and signed up for food stamps. The vaunted gun offense program in Richmond, Project Exile, allowed the City to make use of the stiffer sentences in federal court.

I note also that my good friend Chad Dotson, the Commonwealth's attorney in Wise County, was just before Christmas made a special assistant U.S. attorney, and I suspect this was done primarily for the very purpose of allowing him to bring to bear the threat of federal sentencing to his dealings with criminal defendants in Wise County.

No constitutional claims against employees of prison operated by private company for federal government

In Holly v. Scott, the Fourth Circuit in an opinion by Judge Wilkinson, joined by District Judge Harwell, with Judge Motz concurring in the judgment, held that there can be no Bivens claim against the employees of a federal prison operated by a private company.

The opinion explains that the plaintiff "is a federal inmate at Rivers Correctional Institution, a privately run facility in North Carolina operated by the GEO Group, Inc. under contract with the federal Bureau of Prisons."

Judge Wilkinson notes the reluctance of the Supreme Court to expand the judge-made concept of a Bivens claim: "The Court’s repeated reluctance to extend Bivens is not without good reason. A Bivens cause of action is implied without any express congressional authority whatsoever. This is hardly the preferred course. The Supreme Court has 'recently and repeatedly said that a
decision to create a private right of action is one better left to legislative judgment in the great majority of cases.'" He adds: "As the last twenty-five years of Bivens jurisprudence demonstrate, so well-suited is Congress to determine the policies pertaining to a remedial scheme that neither the absence nor the incompleteness of such a scheme represents an invitation for a court to step in to correct what it may perceive as an injustice toward an individual litigant."

Judge Wilkinson found two factors that justified denial of a Bivens claim against the employees of the private prison: "First, defendants are private individuals, not government actors. Second, Holly has an adequate remedy against defendants for his alleged injuries under state law."

Judge Motz in her concurring opinion maintains that private contractors providing medical care in state prisons have been held to be state actors for many years, but nevertheless agrees that there is no Bivens claim because the plaintiff has a state tort law remedy against the defendants.

Mike at Crime & Federalism thinks the Supreme Court's Malesko decision contains plenty of cues which Judge Wilkinson chose to ignore, and links to these post from All Deliberate Speed and Decision of the Day.

Gov. Warner and the politics of crime

In this Talkleft post, Gov. Warner: Critics Claim He Moved Left on Crime Issues, there is a link to this NY Times article, "Governor Finds New Middle Ground in Death Penalty Debate."

The Times article says:

"But in four years as governor, Mr. Warner has incrementally and with little fanfare established groundbreaking policies on the use of DNA testing to confirm, or challenge, criminal convictions, many of them in death penalty cases. Last week, he became the first governor to order a DNA test involving a man who had already been executed."

The Talkleft writer says the idea that Governor Warner has made progressive use of DNA to get votes is laughable: "Can anyone name a politician who ran for high national office on a liberal crime platform?"

Reading all this gave me cause to recollect this Will Vehrs post, with the comments, mostly saying that having the Coleman DNA tested was good politics, except perhaps - as Jerry postulates, with the victim's family.

We really want something reversed, by thunder, and we're not saying what

The best bit of this Appellate Law & Practice post says:

"The plaintiffs also had a due process claim, which was dismissed, and their 'appellate brief thunders that this ruling should be reversed.' But, it seems they don’t actually explain what their argument is. And, the court slams the lawyers by saying, 'Their appellate brief thunders that this ruling should be reversed — but that remonstrance, twice repeated, is unaccompanied by any vestige of developed argumentation. Gauzy generalizations are manifestly insufficient to preserve an issue for appellate review.' (Of course, judges often indulge in generalizations.)"

The post is about an opinion from the First Circuit, in Torres-Arroyo v. Rullan, worth reading in and of itself, and not only for its use of the term, "sockdolager."

Friday, January 13, 2006


This article ponders the origins of the phobia of Friday the 13th, and includes a link to this abstract of a study of the medical effects of Friday the 13th.

Friday the 13th was lucky for that other Steve Miner, the film director.

Some posts on the Coleman case

Milbarge at BTQ says:

"Cases like Coleman's and other [?] recent exonerations are just clearing the decks of old cases where the trial predated modern testing. In the present, and future, testing will happen pre-trial."

Professor Berman says:

"Though this interesting development is unlikely to alter the death penalty debate as much as if the DNA test came out the other way, I suspect this finding will be rightly used by death penalty supporters to highlight that death row defendants' claims of innocence must always be examined with skepticism."

Ronald at says:

"The good news is that Virginia did not execute an innocent man."

The Washington Post article quotes one law professor as saying:

"The opportunity to bring new people into the abolitionist movement has been lost."

Lawyer fined for bumping and shoving opposing counsel

The Norfolk paper reports here than an 81 year-old lawyer was fined $250 for contempt of court on account of his bumping and shoving opposing counsel in court during a sidebar conference in a will contest in Virginia Beach circuit court.

Thursday, January 12, 2006

Georgia Tech AD diagnosed with Crohn's disease, quits work

It is reported here and elsewhere that Dave Braine, the longtime athletic director at Georgia Tech and earlier at Virginia Tech, has quit his job because of Crohn's disease.

Besides Va. Tech, Braine's background includes stints at VMI, Richmond, and Virginia:

"After teaching and coaching at Manatee High School in Bradenton, Fla., he joined the Virginia Military Institute football staff as a freshman coach in the spring of 1967, kicking off his long career in collegiate athletics. Later he coached at Richmond from 1971-73, highlighted by the Spiders' 1971 Southern Conference title and Tangerine Bowl berth. After two seasons as an assistant coach at Tech, Braine moved to Virginia as administrative assistant and secondary coach under Dick Bestwick in 1976. In 1978, he became assistant athletic director at Virginia."

Prayer lawsuit filed against Fredericksburg

The Fredericksburg paper reports that a city council member has sued the city over its new prayer policy.

The story begins:

"Fredericksburg City Councilman Hashmel Turner has filed suit against his fellow council members, saying that the city's new prayer policy violates his constitutional rights."

DNA results says Coleman was almost certainly guilty

The Richmond paper has this report.

Governor Warner's website has this link to the report from the lab in Canada, along with this statement from the Governor.

UPDATE: TalkLeft has this post, with statements from Peter Neufeld and Amnesty International.

Wednesday, January 11, 2006

Next big tort class - people who ride in cabs

Scientific American reports here:

"When strolling alongside a busy city street on a smoggy summer day, it may seem as if riding in one of the taxis streaming by might provide a respite from the exhaust-choked air. Instead new research from London reveals that taxi rides take a toll on your lungs as well as your wallet.

In fact, taxi cabins expose drivers and riders to more air pollution than any other form of transportation, according to the results of a survey by Surbjit Kaur and her colleagues at Imperial College London."

What PACER ought to be like

LawPundit says the welcoming screen to the federal court's online system should be like this:

"Welcome to ECF/PACER, the electronic database website of the federal U.S. Courts. According to Freedom of Information principles, all citizens are entitled to free and easy access to government documents. This website is designed to provide that service for the federal US courts. Thank you for visiting and come again."

Lawyer's end-run around state court subpoena for testimony about client in case of missing child

In State of Ohio v. Doe, the Sixth Circuit ruled against an Ohio lawyer who had removed to federal court the matter of a state court subpoena that would compel her her to give testimony about what a former client, now deceased, told her about the disappearance of a young girl. The Court concluded that the case should have been remanded to state court.

The Court said:

"Having had her day in court, Lewis seeks to profit from outrunning her first state court contempt order by raising federal arguments that she failed to raise when she had the chance. Lewis 'has experimented with the state courts and been beaten, and now seeks a different forum.' Rosenthal, 148 U.S. at 147. Section 1442(a) of the removal statutes does not confer federal jurisdiction for such purposes."

On the passing of the Patrick County pig once referred to as a legend

Rex Bowman of the Richmond paper has this story on the life and times of Oinky Doodle, gone but not forgotten.

This must-read begins:

"Oinky Doodle, Patrick County's most famous junkyard hog, known for his gluttonous love of Tootsie Rolls, Coca-Cola and peanuts, is dead. The big pig was 12.

He also ate York peppermint patties."

Of like cultural and literary merit is this account of Oinky Doodle's owner, who dreams of having Burt Reynolds play him in the movie.

Tuesday, January 10, 2006

Who needs Alito when you could have a robot

Via Slashdot, this article describes an automated, online dispute resolution system being expanded in Europe.

More on Governor Warner and the voting rights of convicted felons in Virginia

The New York Times has this editorial, which begins:

"In his few remaining days in office, Gov. Mark Warner of Virginia has an opportunity to strike a blow for democracy with the stroke of a pen by restoring the right to vote to more than 240,000 felons who are now out of prison. This is manifestly the right thing to do. Mr. Warner, who is likely to be a presidential candidate in 2008, should not let political considerations deter him because taking a principled stand in favor of ex-prisoners' voting rights would only augment his reputation."

Monday, January 09, 2006

Must be the blog

It says here that Florida appellate blogger Matt just ran his first marathon and got married.

Well done.

I'd like to thank the Academy, or at least GovtCheese

It says here that we got win No. 6.33 in the 34th Commonwealth Conservative caption contest, which also means that we have lost the other 27.66.

It takes six wins to be bowl eligible, but it takes 20 wins to become a member of the World Golf Hall of Fame.

The daily rapsheet updated on Vick

I'm reading that Marcus Vick was arrested again, this time on a charge of brandishing a firearm at a Suffolk McDonald's sometime last night.

For the latest, try this Google news search.

On John Tucker and the Coleman case

The Chicago Sun-Times has this short interview with John Tucker about the latest developments in the Roger Keith Coleman case. Tucker wrote the 1997 book about the case. He lives in Virginia with his wife, William & Mary law professor Jayne Barnard.

Sunday, January 08, 2006

What he learned at MIT

There's some lasting truth in what this guy learned at MIT - including, among other things:

"Don't work with anyone else if you don't need to." Well, I work with others whenever I can, but as a related principle, even when you work with others, you're still responsible. The lawyer who blames another lawyer or some non-lawyer for anything only makes himself look bad.

"Trying to learn everything from scratch is a loser's game - take advantage of available literature." I'm looking for lawyering ideas to steal every day.

"Keep the design as simple as possible." The whole point of lawyering is communication, with simplicity as the eternal goal.

"I noticed the students who had perfect grade points weren't the whiz-bang smartest - they were the ones who kept regular schedules and maintained discipline, closing their dorm room doors to study, eating regular meals and going to sleep at midnight." The lawyers who take all the money have both discipline and whiz-bang. The ones with neither are not long for the profession.

"Even when your expectations are low (and to be pragmatic and realistic, they often have to be), maintain high standards." Other lawyers, the clients, and the judges are always keeping score, whether you win or lose.

"So when I join a company and hear how smart the people there are - I'm not impressed. Unless they're also good people to work with. That's a lot harder to find." The difference between the best and the worst lawyers I've met has more to do with character and discipline than smarts. Everyone I met in college and in law school was smart.

"You can have smart people, lots of money and the latest technology, but your execution can still suck." See all the above.

"Don't trust politicians." At the University, the self-promoting student government types were called "politicos." Within the profession, I read about lawyer politicos, but I am unaware of many around here. Perhaps the local ones have no use for me.

Good thing the federal courts have no jurisdiction in domestic relations cases

This article about Governor-elect Tim Kaine records this heart-warming exchange between Kaine and the late Judge Robert Merhige:

"Anne Holton, Kaine's wife, was a clerk for Judge Merhige. So it was Judge Merhige who became almost a second father-in-law to the incoming governor. He even offered some warm advice at the Kaine-Holton wedding reception. Kaine recalled the exchange.

'Tim, you really better be good to Anne.' 'I'm going to be good to her, judge, because I love her. You know that.'

'No, I mean you better be good to her because I will kick your ass personally if I ever think you're not.'"

Wonder whether these two legal encyclopedias are worthwhile

I just came across West's Encyclopedia of American Law and the Gale Encyclopedia of Everyday Law.

I have no idea what they are.

Unrelated to this, I've been meaning to check out Wex, but not gotten to it.

Today Bristol, tomorrow the world

Neal writes here that he is now some sort of official Democrat in the City of Bristol, Virginia.

Neal says all the elected officials in Bristol are Democrats but for the Commonwealth's attorney. I would never have guessed the politics of the other constitutional officers, but maybe all that means is that I've not been paying attention.

Back on the active list

I've restarted reading Jerry Lawson's Netlawblog.

Federal court in Illinois opens help desk for pro se litigants

This AP story details the opening of the help desk for pro se litigants as part of the service provided by the United States District Court for the Northern District of Illinois.

The article begins:

"Mountains of paperwork and confusing legal terms can be intimidating to the thousands of people who forgo a lawyer and represent themselves in court. But a federal court here is staffing a new help desk with an attorney to assist people involved in civil cases, and experts say it is believed to be the first of its kind in the nation.

The attorney offers free advice on how to file motions and interpret documents, and tells people if a lawsuit would be a waste of time."