On the Encyclopedia of Appalachia

The Kingsport paper had this fine article on the newly-published Encyclopedia of Appalachia, which intrigues me, even though I never heard of any of the editors. It could be interesting or it could be trash. Maybe my sister will get one and tell me about it.

Which one of America's law schools filed a brief on the winning side of the FAIR case

It says here, quoting Jim Taranto: "Only one law school, George Mason in Arlington, Va., filed a brief on the winning side. Given that not a single justice agreed with the views put forward by profs at Harvard, Yale, Columbia, Cornell, NYU, Chicago, Penn, etc., it seems fair to say that George Mason has the most competent professors of any law school in the nation."

Making law the hard way, one loss at a time

John at Discriminations has this post, about the good law made by the cases in which law schools have lost.

At one time, a similar point could be made about the Virginia State Bar cases involving solicitation of clients. See Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975); Brotherhood of Railroad Trainmen v. Virginia ex rel. Virginia State Bar, 377 U.S. 1 (1964); Consumers Union of U.S., Inc. v. Virginia State Bar, 688 F.2d 218 (4th Cir. 1982).

Split vote of en banc Fourth Circuit affirms death sentence in Percy Walton case

A few days ago, the Fourth Circuit sitting en banc affirmed the denial by Judge Wilson of the W.D. Va. of post-conviction relief in the death penalty case of Walton v. Johnson. The vote count was as follows: Judge Shedd wrote the opinion, in which Judge Widener, Judge Wilkinson, Judge Niemeyer, Judge Luttig, Judge Williams, and Judge Duncan joined. Judge Wilkinson wrote a separate concurring opinion. Judge Williams wrote a separate concurring opinion. Chief Judge Wilkins wrote a dissenting opinion, in which Judge Michael, Judge Motz, Judge Traxler, Judge King, and Judge Gregory joined.

Chief Judge Wilkins, in his dissent, observed: "In my view, the evidence in the record presents a substantial question (one yet to be answered by the district court) as to whether Walton understands that his execution will mean his death, i.e., the end of his physical life." His opinion seems targeted in some measure at Judge Williams' concurrence, which is mostly targeted at Chief Judge Wilkins' dissent. She noted in her opinion that of Walton "the district court has found understands that is going to be executed, why he is going to be executed, and that his execution will cause him to die."

Judge Wilkinson noted in his concurring opinion that the task of defining what does "death" mean "is well beyond our competence and authority, and is best left to religious leaders, scientists, philosophers, and the private recesses of individual belief." He concluded that "the district court was in the best position to evaluate Walton’s mental state, and it applied the Powell test in an exceedingly careful and thorough fashion."

The majority opinion begins: "In 1996, Percy Levar Walton murdered three people in Danville, Virginia." As this post points out, Walton testified that after his execution, he would "come back as a better person" and he was going to "get a Burger King."

Into the blogging of law wrote the 500

3L Epiphany has this list of more than 500 (myself included) who have joined in the charge of the Law Blogging Brigade.

(With apologies to Lord Tennyson's work.)

On college sports profits and law school accreditation

The always-interesting TaxProf Blog has these two very provocative and mostly unrelated posts:

March Madness: Congress Considering Taxing NCAA Sports Revenues

Groups Opposed to ABA's New Diversity Requirements Seek Revocation of ABA's Power to Accredit Law Schools

On judicial nominations

A group of former presidents of the Fairfax County Bar made news with their letter protesting the selection of William Petty and Randolph Beales as the new judges for the Virginia Court of Appeals, as reported here in the Connection newspapers and here in the Lynchburg paper. I agree that the General Assembly ought to make sure that candidates for the appeals courts are reviewed by the statewide bar groups, I agree that the General Assembly should include lawyers from every region of the state on the Court of Appeals, and I agree that Judge Ney from Fairfax was certainly the best-qualified candidate in terms of legal scholarship and breadth of litigation experience, but I don't agree that the Fairfax County bar presidents should be bashing Petty and Beales in a way that struck me as a bit misleading (if not just plain wrong) and unnecessary to these other points. Besides which, I am told that Petty is an alumnus of White Elliott & Bundy, from back before my time, and I'm generally a White Elliott & Bundy alumni booster.

Unrelated to the judicial selection process in Virginia, here from the Washington Post and here from Slate and here from the NY Times are news stories on the arrest of Claude Allen, formerly a nominee to serve on the Fourth Circuit and high-ranking official both under Virginia's Governor Gilmore and in the White House under President Bush. In 2003, by a split vote, the ABA rated Allen as qualified.

Truck driver injured in warehouse is statutory employee

In Glenn v. Lafon, Judge Conrad of the W.D. Va. granted the defendant's motion to dismiss, concluding that the plaintiff truck driver was a statutory employee of the defendant warehouse company with respect to the activity in which he was engaged at the time of his injuries, and therefore he was limited to the exclusive remedy of workers' compensation.

We litigated such a case a while back, which added the word "lumper" to my vocabulary. The drivers who hire lumpers to unload the truck are less likely to be struck by a forklift in the warehouse.

Where are the law professors acknowledging their foolishness

From the comments on the ACSBlog, this one sums it up, as it says regarding the Solomon Act case:

"The Solomon case was a litmus test to see who believes that the Constitution means 'what I like is required; what I dislike is forbidden.' It amazes me that, even today, after a 8-0 drubbing that included the more liberal justices, anyone thinks this was a difficult issue."

Tom Johnston confirmed as the new judge of the S.D. W.Va.

One of the Charleston papers reports here that "Tom Johnston, who is currently U.S. Attorney for the state's Northern District, was confirmed Monday night on a Senate vote of 89-0" as the new judge for the United States District Court for the Southern District of West Virginia, replacing the late Judge Haden. Johnston is 38. He was a campaign coordinator in West Virginia for President Bush in 2000.

The order with the Billy Madison reference

This order has been making the rounds, notable for its reference in a footnote to an Adam Sandler movie.

That $1 million for Buchanan County

As the Roanoke Times reported here and the Richmond paper reported here, the United States Department of Justice is paying over $1 million of money forfeited in the Buchanan County RICO case back to the County as the victim of the Big Coon Dog case. Here is the press release from the office of John Brownlee, the U.S. Attorney for the W.D. Va. The Roanoke article mentions that I am outside counsel for the County as it tries to get its money back.

Some people have asked me what kind of proceeding was this, that resulted in this payment of the money to the County. The answer is that in the criminal case, the District Court did not order restitution but did enter a series of forfeiture orders against the defendants, pursuant to 18 U.S.C. §§ 981 and 982. Under 18 U.S.C. § 981(e)(6), property forfeited pursuant to 18 U.S.C. § 981 may be transferred to the victim of the offenses which gave rise to the forfeiture. Accordingly, we filed a petition for remission of the forfeiture with the Department of Justice under 28 C.F.R. §§ 9.1 et seq. The law enforcement officials in Virginia - the prosecutors and the IRS and FBI - had to make recommendations to the DOJ in Washington, which they did, and their recommendations resulted in favorable action by the DOJ in Washington on the County's petition.

Law schools go down in Rumsfeld case, 8-0

Today the Supreme Court decided Rumsfeld v. FAIR against the anti-American military law school faculties, by a vote of 8-0.