Saturday, July 15, 2006

What happens when plaintiff and defense lawyers meet in same town, at same time

Here is the agenda for the VTLA Solo and Small Firm conference set for October 19-20 in Williamsburg at The Lodge.

Here is the agenda for the VADA annual meeting set for October 18-20 in Williamsburg at the Marriott.

I haven't set the two side-by-side but hopefully not all the good stuff is scheduled at the same time, because I might go to part of each. Maybe I'll just follow Steve Emmert as he goes from one to the other.

Would Virginia's proposed same-sex marriage amendment pass muster under the federal constitution

Today the Eighth Circuit ruled in Citizens for Equal Protection v. Bruning that a district court erred in holding that the same-sex amendment to the Nebraska constitution was unconstitutional.

The language of the Nebraska amendment is perhaps more open-ended that proposed amendment in Virginia, as it provides:

"Only marriage between a man and a woman shall be valid or recognized in Nebraska. The uniting of two persons of the same sex in a civil union, domestic partnership, or other similar same-sex relationship shall not be valid or recognized in Nebraska."

The proposed Virginia amendment provides:

"That only a union between one man and one woman may be a marriage valid in or recognized by this Commonwealth and its political subdivisions.

This Commonwealth and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance, or effects of marriage. Nor shall this Commonwealth or its political subdivisions create or recognize another union, partnership, or other legal status to which is assigned the rights, benefits, obligations, qualities, or effects of marriage."

The similarity between these two amendments is the use of the word "other" leaves open their potential breadth of application.

Besides the briefs of the appellants (here and here) and the brief of the appellees, many amicus briefs were filed in the Nebraska case, and in the Eighth Circuit briefs are posted online, so here are a few worth reading:

Supporting the appellants in arguing the amendment is constitutional -

Alliance for Marriage, Inc.
Eleven States (IN, AL, AR, CO, FL, KS, MI, MO, ND, SD, TX)
Focus on the Family and Family Research Council
Liberty Counsel
The National Legal Foundation
Nebraska Family Council
Some law professors (including a couple from Regent, but nobody famous)
Some Nebraska legislators
Thomas More Law Center
United Families International

Supporting the appellees in arguing the amendment is unconstitutional -

American Psychological Association

The National Association of Social Workers
A Nebraska lawyer

I must confess that I don't know much about the judges of the Eighth Circuit, and didn't recognize the names of any of the judges on the panel, so I looked them up. One was Chief Judge Loken, who wrote the opinion. According to his FJC biography, he went to Harvard Law, clerked for Justice White, worked in the Nixon White House, and was appointed by President George H.W. Bush. Another member of the panel is Pasco Middleton Bowman II, of whom it says here that he was born in Virginia, graduated from Bridgewater College and U.Va. Law, and served as dean of the law schools at Wake Forest and UMKC. (If you google Judge Bowman, you discover quickly the name of his most famous (or infamous) law clerk.) The third member of the panel is Lavenski Smith, of whom it says here that he was born in Hope, Arkansas, got his two degrees from the University of Arkansas, went to worked for four years as a legal aid lawyer in Northwest Arkansas, served briefly on the state Supreme Court, and was appointed by President George W. Bush. Judge Smith was confirmed by a vote of 93-3, with only Senators Wellstone, Feinstein, and Dayton opposed.

Thursday, July 13, 2006

When the questions run too deep

Via Howard Bashman, I read this delightful dissent from the denial of rehearing in the Ninth Circuit case of Amalgamated Transit Union v. Laidlaw Transit Services.

The dissenters reject what they call the majority's rule of "illogicality," in determining that Congress meant "more" when it wrote "less" in 28 U.S.C. § 1453(c)(1), which says the time for appealing a ruling on class certification is "not less than 7 days after entry of the order."

"Fail not at your peril."

I was just looking at a subpoena that concludes, "Fail not at your peril."

Evidently, subpoenas used to always say that.

I can guess what it means, but it seems like a strange bit of usage to me.

Some guy named Steve posted this:

"Back in the good old days, when courts were allowed to inflict cruel and unusual punishment willy nilly, a subpoena concluded with the legend: 'HEREIN FAIL NOT AT YOUR PERIL.' The recipient was left to imagine what might happen to one who ignored such an order from a court. Whatever that consequence might be, it was sure to be painful, hence the name 'sub poena' meaning 'under pain.'"

Should I get this for Dad or for Eli?

It says here that Frank Beamer has a new Virginia Tech football book for kids, titled "Yea, It's Hokie Game Day!"

Wednesday, July 12, 2006

Judge Boyle's letter

Here Howard Bashman has posted the letter Fourth Circuit nominee and current Chief Judge Boyle of North Carolina wrote to the Chairman of the Senate Judiciary Committee, acknowledging that a few small items snuck past his conflict checking system.

Judge Boyle wrote in part:

"I can state categorically and truthfully that I have never accepted or maintained a case assignment, whether civil or criminal, while knowing that I had an actual or apparent conflict of interest. Over the course of my twenty-two years of service as a federal district judge, during which time I have presided over more than 16,000 cases, I have taken my duties seriously and have strived to observe the judicial canons and ethics rules, including those on conflicts of interest. Never during my tenure as district judge have I received a complaint or a question from any party suggesting that I may have had a financial conflict in a case."

Good news, bad news

The good news is you can see my name in this column by Christian Trejbal in today's Roanoke paper, cited as if I were some kind of legal expert.

The bad news is that it appears that my areas of expertise are sodomy and fornication.

Fred, you were the man

I've just read this remarkable obituary from, of all places, the Richmond Times-Dispatch.

It concludes:

"He died at MCV Hospital and sadly was deprived of his final wish which was to be run over by a beer truck on the way to the liquor store to buy booze for a double date to include his wife, Rush Limbaugh and Ann Coulter to crash an ACLU cocktail party. In lieu of flowers, Fred asks that you make a sizable purchase at your local ABC store or Virginia winery (please, nothing French - the *censored*) and get rip roaring drunk at home with someone you love or hope to make love to. Word of caution though, don't go out in public to drink because of the alcohol related laws our elected officials have passed due to their inexplicable terror at the sight of a MADD lobbyist and overwhelming compulsion to meddle in our lives. No funeral or service is planned. However, a party will be held to celebrate Fred's life. It will be held in Midlothian, Va. Email for more information. Fred's ashes will be fired from his favorite cannon at a private party on the Great Wicomico River where he had a home for 25 years. Additionally, all of Fred's friend (sic) will be asked to gather in a phone booth, to be designated in the future, to have a drink and wonder, 'Fred who?'"

Oops, Chad beat me to it. So did The Corner. So did all the other blogs listed here.

The Haynes hearing

Here are articles on yesterday's hearing before the Senate Judiciary Committee on the nomination of William J. Haynes, II, to the Fourth Circuit:

Raymond Hernandez, New York Times, Bush Nominee Tries to Calm Torture Furor

"The hearing came a day after 20 retired military officers sent the Judiciary Committee a letter saying that they had 'deep concern' about Mr. Haynes’s fitness to be a federal judge because of his role in approving coercive techniques to interrogate terror suspects.

Speaking to reporters, Senator Harry Reid of Nevada, the Democratic leader, indicated that the letter had deeply influenced his thinking, declaring that the letter 'says it all' about Mr. Haynes.

Mr. Reid signaled that the nomination was in serious trouble, though he did not say Democrats would try a filibuster if it came before the full Senate for a vote. Sixty votes are needed to end a filibuster....

The controversy over the nomination of Mr. Haynes stems from memorandums he wrote or supervised that secretly authorized harsh treatment, even torture, for detainees at Guantánamo Bay, Cuba, and in Iraq.

In the hearing, Mr. Haynes distanced himself from the so-called Bybee memorandum, which narrowly defined torture and asserted that a president could ignore prohibitions against it in the name of national security.

The memorandum, which has been disavowed by the Bush administration, was written in 2002 by Jay S. Bybee, a Justice Department official who has since become a federal appeals court judge. It had not been publicly disclosed when Mr. Haynes was first questioned by the Judiciary Committee in 2003."

Charles Lane, Washington Post, GOP Senator Criticizes Appeals Court Nominee

"A key Senate Republican clashed yesterday with President Bush's pick for a federal appeals court, taking aim at the nominee's past support for harsh interrogation methods at the U.S. prison camp in Guantanamo Bay, Cuba.

At a Judiciary Committee hearing, Sen. Lindsey O. Graham (S.C.) said that Pentagon General Counsel William J. Haynes II had pushed for the tactics over the objections of top uniformed military lawyers who considered the policy process a 'sham.'

The result, Graham told reporters after the hearing, was 'legal confusion' that contributed to the scandal at Iraq's Abu Ghraib prison -- and the attendant courts-martial and other career damage for those held responsible. . . .

With Democrats united against Haynes, Graham's position is crucial because without his support Haynes could have a hard time getting out of the Judiciary Committee, which has 10 Republicans and nine Democrats. Graham is also one of the Senate 'Gang of 14' that has agreed to oppose filibusters of judicial nominees except in 'extraordinary circumstances.'"

Thomas Ferraro, Reuters, Bush judicial nominee struggles to win Senate OK

"Sen. John McCain, an Arizona Republican, said he was awaiting a response from Haynes to a recent letter he sent him. 'I'm not blocking it (the nomination), but I have questions,' McCain said."

Laurie Kellman, AP, Haynes Fights to Save Judgeship Nomination

"Haynes' nomination was not clear of trouble.

Chairman Arlen Specter, R-Pa., said afterward he had not yet decided whether to vote for Haynes' confirmation. And Reid cited a letter by 20 retired military officers strongly opposing sending Haynes to the court in Richmond, Va.

Three Republican members of the so-called 'Gang of 14' senators, who have significant say in whether controversial nominations survive, also have expressed concern about Haynes' nomination. They are Sens. Lindsey Graham of South Carolina, John McCain of Arizona and Susan Collins of Maine."

Charles Hurt, Washington Times, Democrats likely to filibuster nominee

"While Mr. Haynes was outright condemned by Democrats on the panel, his sparring with Mr. Graham was the sharpest as the senator tried to determine how involved Mr. Haynes was in the original policy memos.
Later, outside the hearing room, Mr. Graham dodged reporters' questions about whether he could support the nominee.
'Actions have consequences,' he said.
Further complicating the situation is that Mr. Graham is among the so-called 'Gang of 14' senators -- seven Democrats and seven Republicans -- who have made a pact to prevent filibusters except in the case of 'extraordinary circumstances.' In return, Republicans such as Mr. Graham promise not to go along with the 'nuclear option' unless Democrats lodge a frivolous filibuster.
After his dust-up with Mr. Haynes at yesterday's hearing, Mr. Graham declined to even rule out that Mr. Haynes poses the 'extraordinary circumstance' that would warrant a filibuster."

Richmond Times-Dispatch, Hearing stormy for judicial nominee

"President Bush's pick of William James Haynes II for the Richmond-based federal appeals court faces an uncertain future after a stormy nomination hearing yesterday.

Two Democrats blistered Haynes, the Pentagon general counsel, over his role helping shape Bush administration policies on treatment of enemy detainees, and one Republican senator sharply questioned Haynes' role too....

Haynes also was asked about a letter signed by a group of retired military officials. It voiced 'profound concern' about Haynes' role, going 'over the objections of uniformed military lawyers,' in setting policies 'which led not only to the abuse of detainees in U.S. custody but to a dangerous abrogation of the military's long-standing commitment to the rule of law.'

Haynes got a copy of the letter from Sen. John W. Warner, R-Va., who with Sen. George Allen, R-Va., introduced him to the committee. Haynes took issue with the assertion. He said he thought he had worked with only two of the 20 signers of the letter, although he hadn't studied it closely."

Tuesday, July 11, 2006

Federal court challenge to blog ban for Kentucky state employees

The Kentucky Law Blog posts here and here regarding the lawsuit filed to challenge the ban on Kentucky state employees reading blogs critical of the Governor.

Fourth Circuit nominee Haynes before committee again today

The Richmond paper has this report that says William J. Haynes will have his second hearing before the Senate Judiciary Committee today.

On the passing of Tom Fletcher of St. Paul

The Roanoke paper reports here ("Former UVa, Virginia Tech aide dies," July 11) on the passing of Tom Fletcher, whom I've met a time or two somewhere along the line.

Monday, July 10, 2006

Environmental protesters stage event outside Russell County power plant

According to this AP report, some demonstrators demonstrated against the coal power at the Clinch River plant, of which one of them declared: "The Clinch River facility is a symbol of all that is wrong with King Coal."

Bristol makes Wonkette

Wonkette ran with this photo from the sesquicentennial:

Governor Kaine pardons witch

The Norfolk paper has this story here and the AP has this story, about the Governor's decision to reverse the 1706 conviction of the Witch of Pungo.

Southern Virginia fiber-optic network nears completion

From the Martinsville paper:

"Broadband ring nears completion

Bulletin Staff Writer

Construction of a more than 700-mile ring of fiber-optic cable in Southside is nearly complete, and those who are building it say it will bring more options and greater reliability to area telecommunications.

"We are as of today about 99 percent completed with the fiber project," said Tad Deriso, general manager of the Mid-Atlantic Broadband Cooperative, on Friday.

The cooperative is a $27 million project funded by the Virginia Tobacco Commission and a grant from the economic development administration arm of the U.S. Department of Commerce. The project is intended to create an "open access" fiber-optic network that can be used by telecommunications companies which join the cooperative.

The fiber optic ring extends across the bottom of Virginia, from Patrick to Sussex counties, and as far north as Appomattox and Buckingham counties. The cooperative currently has 18 members, but more are interested in joining, Deriso said. He said the city of Martinsville's Mynet program is submitting an application to become a member. City officials could not be reached for comment.

Deriso said the project has about two more miles of fiber to link. That is in the Patrick County/Stuart area, and it should be finished within 30 days, he said.

"We're kind of going from construction into operations," he said.

When the fiber-optic network is complete, the cooperative will sell access to the network on a wholesale basis to other companies which will provide services to their customers. It will not provide services itself, but the Tobacco Commission is considering the possibility of trying to provide the "last mile," or the connection from the backbone network to people's homes.

"This project was never designed to be a last mile," Deriso said, but that might change as the commission examines options to provide those final connections.

"The commission realizes there's a real big need to get broadband (in some areas)," he said.

The Tobacco Commission's site describes the project as an economic revitalization effort, providing needed infrastructure. But Deriso said there also may be some more immediate benefits for consumers.

With the network in place, he said, there should be more redundancy and reliability. For instance, a recent cut in Sprint's fiber-optic cable, caused by contractors who were laying cable for the Mid-Atlantic Broadband Cooperative, would not have caused such a lengthy phone outage if the Sprint was a member of the cooperative network and had access to the redundant fiber, Deriso said.

The open-access network also should provide a more competitive business atmosphere, he said, which could lower costs for consumers.

"Because you do have options and choices now, competition and the free market's going to take care of that," he said.

The network can provide more than just Internet and voice communication, Deriso said. It also can be used to transmit television signals from a distant "head end," a place where the signals are received from satellite and over the air to another community. This would mean the community receiving the signals would not have to build its own head end.

To give an idea of how much bandwidth the network can handle, Deriso said that if every man, woman and child in the city of Martinsville had a DSL connection and was running it at the same time, it would account for about 5 percent of the available bandwidth."

Sunday, July 09, 2006

On U.S. coal imports

The Christian Science Monitor has this article on why the United States is importing more coal now than ever.

The article says in part:

"Coal-fired power plants along the Gulf Coast and East Coast have long imported coal by ship in small amounts. But with transportation costs and the price of low-sulfur coal from central Appalachia and Wyoming rising, US demand is soaring for coal from South America and as far away as Indonesia.

Leaping from 9 million tons to 30.5 million tons in the past six years, US coal imports could jump to 40 million tons this year, government analysts say. And that trend is accelerating as demand for low-sulfur coal grows following last year's federal Clean Air Interstate Rule, a mandate for big cuts in sulfur dioxide emissions from power plants in the eastern US.

At the same time, US coal exports are declining sharply. If present trends continue, the US will be a net importer of coal by 2013, according to the Energy Information Administration of the US Department of Energy. Still, most analysts see little need to worry since vast US reserves mean the US is unlikely to become dependent on overseas coal."

Now, a warning?

It says here that Toshiba America gets an F from the Better Business Bureau.

I've had this Toshiba laptop for less than a month.

Washington Post declares voting on same-sex marriage is just and inevitable

This Washington Post editorial seems to say that the decisions of the state courts on same-sex marriage are irrelevant, one way or the other, because "it's become clear that democratic majorities, not judges, ultimately will decide how evenhanded state marriage laws are going to be. In many states, ballot initiatives have preempted any litigation by amending state constitutions to prohibit same-sex marriage." The editorial also says: "State laws, and even state constitutions, are generally easy enough to change that courts cannot force same-sex marriage on an unwilling populace."

Last night, I saw a fellow on C-SPAN, who was said to be historian of the U.S. Senate, and he was asked something like what Senate floor speech would he most like to have heard, and he cited the speech where Senator Everett Dirksen said of the Civil Rights Act of 1964, "Victor Hugo wrote in his diary substantially this sentiment, 'Stronger than all the armies is an idea whose time has come.' The time has come for equality of opportunity in sharing of government, in education, and in employment. It must not be stayed or denied."

Maybe someday the time will come for the idea of same-sex marriage will come. Maybe it won't. I agree with the Post commentary that it won't come through litigation in state courts alone, because the state law (unlike the federal law and especially the U.S. Constitution) can be changed relatively quickly to undercut unpopular court rulings on a wide variety of issues.