It appears I wasn't the only one with this experience, as I received an e-mail that says:
September 25, 2007
Dear V-Pass Customer,
We apologize the live online audio broadcast of Georgia Tech at Virginia football game on Saturday, Sept. 22 dropped silent near the end of the game. We have resolved the technical issue that caused this to happen and we are confident a similar occurrence will not happen again.
----
Pay $40, and it conks out right at the end of the game.
Tuesday, September 25, 2007
Your division leader
ACC COASTAL DIVISION
School, Conference, Overall
Virginia, 3-0, 3-1
Miami, 0-1, 3-1
Virginia Tech, 0-0, 3-1
Duke, 0-1, 1-3
North Carolina, 0-1, 1-3
Georgia Tech, 0-2, 2-2
School, Conference, Overall
Virginia, 3-0, 3-1
Miami, 0-1, 3-1
Virginia Tech, 0-0, 3-1
Duke, 0-1, 1-3
North Carolina, 0-1, 1-3
Georgia Tech, 0-2, 2-2
Sunday, September 23, 2007
Weekend project
Since I didn't go to the Georgia Tech game, didn't work, didn't play golf, and didn't mow the grass, yesterday and today I wrote my first-ever Wikipedia entry, on Judge Robert W. Hughes.
Best thing I read today
Today's Bristol paper had this Sharon Randall column, about taking her brother, a life-long Clemson fan who is blind, to his first in-person Tigers football game at Death Valley.
It says they had a big time.
The last time I linked to Sharon Randall, her son took her to the Final Four.
It says they had a big time.
The last time I linked to Sharon Randall, her son took her to the Final Four.
On the late Judge Cridlin
Besides Judge Widener on Wednesday, retired Judge Joseph Cridlin of Lee County died on Friday.
The Bristol paper published this obituary:
"JONESVILLE, Va. – Judge Joseph N. Cridlin, 94, of Jonesville, Va., was born April 13, 1913 and passed away Sept. 21, 2007, at Lee Regional Medical Center in Pennington Gap, Va.
His parents, Judge George Patton Cridlin and Sallie Campbell Smith Cridlin, preceded him in death.
Judge Cridlin was a lifelong resident of Lee County and a graduate of William & Mary College and the Marshall Wythe School of Law. He began his law practice in Jonesville in 1935 and was appointed as a Virginia Circuit Court judge in 1960, retiring in 1975. He continued to do substitute judicial work for the next 20 years and was a member of the Virginia State Bar for 72 years. At the time of his death, Judge Cridlin was president and chairman of the board of Powell Valley National Bank in Jonesville.
Judge Cridlin served in the U.S. Army for four years during World War II with tours of duty in Australia, New Guinea and the Philippines. He was commissioned as a 1st lieutenant before being discharged in 1946.
Judge Cridlin was a lifelong member of the Jonesville First United Methodist Church, where he taught Sunday school for over 40 years. He was a charter member and first president of the Jonesville Lions Club in 1940. He was also a charter member of the Cedar Hill Country Club, a Mason and a member of Preston Masonic Lodge No. 47 AF&AM since 1940.
In addition to his parents, Judge Cridlin was preceded in death by his wife, Fay Fuller Cridlin, brother, Clyde Y. Cridlin, and sister, Roberta Cridlin Vergara.
He is survived by son, George Fuller Cridlin and wife Karen, Jonesville, Va.; daughter, Josephine Cridlin Roddenberry and husband Ken, Jonesville, Va.; grandchildren, Stephanie Rowlett Dourado and husband Eli, Arlington, Va., Joseph Patton Cridlin and wife Shelley, St Petersburg, Fla., and Harrison Fuller Cridlin, Jonesville, Va."
Not too long ago I had this post about Judge Cridlin.
The Bristol paper published this obituary:
"JONESVILLE, Va. – Judge Joseph N. Cridlin, 94, of Jonesville, Va., was born April 13, 1913 and passed away Sept. 21, 2007, at Lee Regional Medical Center in Pennington Gap, Va.
His parents, Judge George Patton Cridlin and Sallie Campbell Smith Cridlin, preceded him in death.
Judge Cridlin was a lifelong resident of Lee County and a graduate of William & Mary College and the Marshall Wythe School of Law. He began his law practice in Jonesville in 1935 and was appointed as a Virginia Circuit Court judge in 1960, retiring in 1975. He continued to do substitute judicial work for the next 20 years and was a member of the Virginia State Bar for 72 years. At the time of his death, Judge Cridlin was president and chairman of the board of Powell Valley National Bank in Jonesville.
Judge Cridlin served in the U.S. Army for four years during World War II with tours of duty in Australia, New Guinea and the Philippines. He was commissioned as a 1st lieutenant before being discharged in 1946.
Judge Cridlin was a lifelong member of the Jonesville First United Methodist Church, where he taught Sunday school for over 40 years. He was a charter member and first president of the Jonesville Lions Club in 1940. He was also a charter member of the Cedar Hill Country Club, a Mason and a member of Preston Masonic Lodge No. 47 AF&AM since 1940.
In addition to his parents, Judge Cridlin was preceded in death by his wife, Fay Fuller Cridlin, brother, Clyde Y. Cridlin, and sister, Roberta Cridlin Vergara.
He is survived by son, George Fuller Cridlin and wife Karen, Jonesville, Va.; daughter, Josephine Cridlin Roddenberry and husband Ken, Jonesville, Va.; grandchildren, Stephanie Rowlett Dourado and husband Eli, Arlington, Va., Joseph Patton Cridlin and wife Shelley, St Petersburg, Fla., and Harrison Fuller Cridlin, Jonesville, Va."
Not too long ago I had this post about Judge Cridlin.
Saturday, September 22, 2007
Terminological inexactitude and qualified immunity
For reasons that are not entirely clear to me, Judge Shedd in the case of Henry v. Purnell decided to hold forth on a number of the oddities of the law of qualified immunity, in the Fourth Circuit.
The Supreme Court requires the two-parts of the qualified immunity to be addressed in a particular sequence, for reasons that are not entirely satisfactory. The initial inquiry is whether the plaintiff has stated or proven sufficient facts to show a constitutional violation - in other words, does the plaintiff have a case on the merits? If the trial court decides this first inquiry against the plaintiff, is it a decision based on qualified immunity, or not? And, does it matter?
Judge Shedd notes:
"When resolving cases on the first Saucier question, courts sometimes state that the absence of a constitutional violation entitles the defendant to qualified immunity. At least one circuit court has specifically rejected this approach, noting that a defendant in that instance prevails not because of qualified immunity but, instead, because the plaintiff "did not prove an essential element of the § 1983 claim." Ambrose v. Young, 474 F.3d 1070, 1077 n.3 (8th Cir. 2007). In several recent opinions, the Supreme Court appears to have segregated the initial Saucier inquiry of whether a constitutional violation occurred from the second inquiry of whether the defendant is entitled to qualified immunity. See, e.g., Morse v. Frederick, ___ U.S. ___, 127 S. Ct. 2618, 2624 & n.1 (2007) (expressly declining to decide the case on qualified immunity grounds based on the conclusion that no constitutional violation occurred); Groh v. Ramirez, 540 U.S. 551, 563 (2004) ("Having concluded that a constitutional violation occurred, we turn to the question whether petitioner is entitled to qualified immunity despite that violation."); Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (expressing "no view as to the correctness of the Court of Appeals’ decision on the constitutional question" because, in any event, "the Court of Appeals was wrong on the issue of qualified immunity"); see also id. at 601 (Breyer, J., concurring) (noting that Saucier "requires lower courts to decide (1) the constitutional question prior to deciding (2) the qualified immunity question")."
Of course, the characterization makes some practical difference when the defendant's motion for summary judgment is denied, because an ordinary denial of summary judgment on the merits is not immediately appealable, but denial of a motion for summary judgment based on qualified immunity is immediately appealable.
The second point is how does the burden of proof apply to a motion for summary judgment based on qualified immunity. This opinion, for the first time that I can recall, undertakes a thorough survey of the language from the Fourth Circuit precedents on this point, which are contradictory and inconsistent with the explanations from some other circuits. Qualified immunity is an affirmative defense, that the defendant must raise, but the burden of proving the claim on the merits is always on the plaintiff.
Judge Shedd explained:
"The plaintiff bears the burden of proof on the first question — i.e., whether a constitutional violation occurred."
He goes on to say:
"The defendant bears the burden of proof on the second question — i.e., entitlement to qualified immunity."
In making this statement, the judge noted that other circuits and some of the Fourth Circuits take the opposite view. I'm not sure that even makes sense to say the defendant has the burden of proof on what is essentially a legal question - was the constitutional right violated by the defendant clearly established?
The Supreme Court requires the two-parts of the qualified immunity to be addressed in a particular sequence, for reasons that are not entirely satisfactory. The initial inquiry is whether the plaintiff has stated or proven sufficient facts to show a constitutional violation - in other words, does the plaintiff have a case on the merits? If the trial court decides this first inquiry against the plaintiff, is it a decision based on qualified immunity, or not? And, does it matter?
Judge Shedd notes:
"When resolving cases on the first Saucier question, courts sometimes state that the absence of a constitutional violation entitles the defendant to qualified immunity. At least one circuit court has specifically rejected this approach, noting that a defendant in that instance prevails not because of qualified immunity but, instead, because the plaintiff "did not prove an essential element of the § 1983 claim." Ambrose v. Young, 474 F.3d 1070, 1077 n.3 (8th Cir. 2007). In several recent opinions, the Supreme Court appears to have segregated the initial Saucier inquiry of whether a constitutional violation occurred from the second inquiry of whether the defendant is entitled to qualified immunity. See, e.g., Morse v. Frederick, ___ U.S. ___, 127 S. Ct. 2618, 2624 & n.1 (2007) (expressly declining to decide the case on qualified immunity grounds based on the conclusion that no constitutional violation occurred); Groh v. Ramirez, 540 U.S. 551, 563 (2004) ("Having concluded that a constitutional violation occurred, we turn to the question whether petitioner is entitled to qualified immunity despite that violation."); Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (expressing "no view as to the correctness of the Court of Appeals’ decision on the constitutional question" because, in any event, "the Court of Appeals was wrong on the issue of qualified immunity"); see also id. at 601 (Breyer, J., concurring) (noting that Saucier "requires lower courts to decide (1) the constitutional question prior to deciding (2) the qualified immunity question")."
Of course, the characterization makes some practical difference when the defendant's motion for summary judgment is denied, because an ordinary denial of summary judgment on the merits is not immediately appealable, but denial of a motion for summary judgment based on qualified immunity is immediately appealable.
The second point is how does the burden of proof apply to a motion for summary judgment based on qualified immunity. This opinion, for the first time that I can recall, undertakes a thorough survey of the language from the Fourth Circuit precedents on this point, which are contradictory and inconsistent with the explanations from some other circuits. Qualified immunity is an affirmative defense, that the defendant must raise, but the burden of proving the claim on the merits is always on the plaintiff.
Judge Shedd explained:
"The plaintiff bears the burden of proof on the first question — i.e., whether a constitutional violation occurred."
He goes on to say:
"The defendant bears the burden of proof on the second question — i.e., entitlement to qualified immunity."
In making this statement, the judge noted that other circuits and some of the Fourth Circuits take the opposite view. I'm not sure that even makes sense to say the defendant has the burden of proof on what is essentially a legal question - was the constitutional right violated by the defendant clearly established?
The Green and the Gold
A while back I read this item which says, among other things, that the faculty of the College of William & Mary have given their green and gold to federal candidates for '08 (as of July 30, 2007) at a ratio of 99% to Democrats and 1% to Republicans.
The Flat Hat says a Facebook survey shows that liberals outnumber conservatives among the William & Mary students on Facebook, 2.84 to 1.
The Flat Hat says a Facebook survey shows that liberals outnumber conservatives among the William & Mary students on Facebook, 2.84 to 1.
Friday, September 21, 2007
Some links
The Judicial Conference says - transcripts will soon be available online, through PACER at eight cents per page.
Once again, the NY Times says, it will quit charging for much of its content.
Here in this Megan McArdle post is debated the question, "How conservative is the Supreme Court? How deep is the ocean? How high is the sky?"
Once again, the NY Times says, it will quit charging for much of its content.
Here in this Megan McArdle post is debated the question, "How conservative is the Supreme Court? How deep is the ocean? How high is the sky?"
Thursday, September 20, 2007
On the late Judge Widener of the Fourth Circuit
The Bristol paper reports here that Senior Judge H. Emory Widener, Jr., of the U.S. Court of Appeals for the Fourth Circuit, died at his home here in Abingdon yesterday, at the age of 83.
My wife saw the article and asked me if this was the fellow with the hat who ate lunch at the Empire. Indeed, that's the one, the same man my dad knew from the Math Olympics, and who is the subject of posts here, here, and here.
My wife saw the article and asked me if this was the fellow with the hat who ate lunch at the Empire. Indeed, that's the one, the same man my dad knew from the Math Olympics, and who is the subject of posts here, here, and here.
Wednesday, September 19, 2007
Today's links
The Roanoke paper reports here on a Southwest Virginia farmer who filed suit over the use of his picture on a card that asks, would you rather be spanked or goosed? The case was filed in Roanoke County Circuit Court.
Here is a profile of a stout U.Va. man, who died at age 24 from muscular dystrophy.
Here from Time magazine and here from USAToday are items on the new Jeffrey Toobin book about the U.S. Supreme Court.
Here is a profile of a stout U.Va. man, who died at age 24 from muscular dystrophy.
Here from Time magazine and here from USAToday are items on the new Jeffrey Toobin book about the U.S. Supreme Court.
Tuesday, September 18, 2007
On Roanoke's Judge Coulter
The Roanoke paper had this story on the life and times of the late Circuit Court Judge Jack Coulter.
The article says in part:
"Coulter was twice nominated for seats on the Virginia Supreme Court, the second coming down to the flip of a coin. In 1987, Roanoke-area legislators flipped a coin to break a deadlock over whether to back Coulter or Chief Appeals Court Judge Lawrence Koontz for the state Supreme Court.
That seat eventually went to the Winchester Circuit Court Judge Henry Whiting. Koontz succeeded Whiting in 1995."
The article says in part:
"Coulter was twice nominated for seats on the Virginia Supreme Court, the second coming down to the flip of a coin. In 1987, Roanoke-area legislators flipped a coin to break a deadlock over whether to back Coulter or Chief Appeals Court Judge Lawrence Koontz for the state Supreme Court.
That seat eventually went to the Winchester Circuit Court Judge Henry Whiting. Koontz succeeded Whiting in 1995."
Monday, September 17, 2007
From the folks who brought us Ward Churchill
The Tallahassee paper reports:
"A 'Southern-type thing'
Billy Smith has been providing Florida State head coaches with on-field security since 1964. The sight of the retired Florida Highway patrolman on the sideline in uniform with a gun in his holster is just a part of Florida State football.
That practice, however, isn't to the liking of the University of Colorado, which according to Smith told him he couldn't be in uniform and could not have a gun. Smith said that was before FSU President T.K. Wetherell stepped in, talked to his Colorado counterpart and reached an agreement for Smith to be there on Saturday night.
“They allow their highway patrol, sheriff's office, police department and campus police but not the visiting trooper,” Smith said. “One of their people told me, 'Oh, you do the Southern-type thing.' ”
It's the first time Smith encountered the problem."
"A 'Southern-type thing'
Billy Smith has been providing Florida State head coaches with on-field security since 1964. The sight of the retired Florida Highway patrolman on the sideline in uniform with a gun in his holster is just a part of Florida State football.
That practice, however, isn't to the liking of the University of Colorado, which according to Smith told him he couldn't be in uniform and could not have a gun. Smith said that was before FSU President T.K. Wetherell stepped in, talked to his Colorado counterpart and reached an agreement for Smith to be there on Saturday night.
“They allow their highway patrol, sheriff's office, police department and campus police but not the visiting trooper,” Smith said. “One of their people told me, 'Oh, you do the Southern-type thing.' ”
It's the first time Smith encountered the problem."
On last week's Virginia Supreme Court rulings
Friday was decision day in the Virginia Supreme Court, the first of the fall. Here is the synopsis page. The VLW Blog has several posts on the decisions.
Here from the Norfolk paper, here from The Hook, here from the Richmond paper, and here from the Roanoke paper are stories about the decision in the Highland County wind farm case. The opinion is Miller v. Highland County, by Justice Keenan. It decides procedural issues related to the zoning.
Here from the Washington Post and here from the AP are stories on the tree injunction case, modernizing the tree law of the Commonwealth. The opinion is Fancher v. Fagella, by Senior Justice Russell. In this opinion, the Court replaced one judge-made rule with another, with unknown effects on property rights throughout the Commonwealth, in the interests of modernity and urbanization.
What's interesting is the Court almost adopted the Blackwelder test for injunctive relief, see Blackwelder Furn. Co. v. Seilig Mfg. Co., Inc., 550 F.2d 189 (4th Cir. 1977). The Court says, by way of advisory opinion: "The decision whether to grant an injunction always rests in the sound discretion of the chancellor, and depends on the relative benefit an injunction would confer upon the plaintiff in contrast to the injury it would impose on the defendant. Any burden imposed on the public should also be weighed. Akers v. Mathieson Alkali Works, 151 Va. 1, 8-9, 144 S.E. 492, 494 (1928)." Maybe Blackwelder adopts the Akers v. Mathieson Alkali test.
Here is a story from the Norfolk paper on the FOIA case decided against the Norfolk Airport Authority. The opinion is Fenter v. Norfolk Airport Authority, by Senior Justice Stephenson.
Here from the Leesburg paper is an article on the Supreme Court's decision reversing an order imposing a writ of mandamus against a town official, as part of a long-running dispute between Leesburg and a developer. The opinion is Umstattd v. Centex Homes, G.P., by Senior Justice Russell.
Here the Newport News paper reports on the Supreme Court's decision upholding a multi-million dollar verdict in an asbestos case. The opinion is John Crane, Inc. v. Jones, Admin'x.
Here from the Norfolk paper, here from The Hook, here from the Richmond paper, and here from the Roanoke paper are stories about the decision in the Highland County wind farm case. The opinion is Miller v. Highland County, by Justice Keenan. It decides procedural issues related to the zoning.
Here from the Washington Post and here from the AP are stories on the tree injunction case, modernizing the tree law of the Commonwealth. The opinion is Fancher v. Fagella, by Senior Justice Russell. In this opinion, the Court replaced one judge-made rule with another, with unknown effects on property rights throughout the Commonwealth, in the interests of modernity and urbanization.
What's interesting is the Court almost adopted the Blackwelder test for injunctive relief, see Blackwelder Furn. Co. v. Seilig Mfg. Co., Inc., 550 F.2d 189 (4th Cir. 1977). The Court says, by way of advisory opinion: "The decision whether to grant an injunction always rests in the sound discretion of the chancellor, and depends on the relative benefit an injunction would confer upon the plaintiff in contrast to the injury it would impose on the defendant. Any burden imposed on the public should also be weighed. Akers v. Mathieson Alkali Works, 151 Va. 1, 8-9, 144 S.E. 492, 494 (1928)." Maybe Blackwelder adopts the Akers v. Mathieson Alkali test.
Here is a story from the Norfolk paper on the FOIA case decided against the Norfolk Airport Authority. The opinion is Fenter v. Norfolk Airport Authority, by Senior Justice Stephenson.
Here from the Leesburg paper is an article on the Supreme Court's decision reversing an order imposing a writ of mandamus against a town official, as part of a long-running dispute between Leesburg and a developer. The opinion is Umstattd v. Centex Homes, G.P., by Senior Justice Russell.
Here the Newport News paper reports on the Supreme Court's decision upholding a multi-million dollar verdict in an asbestos case. The opinion is John Crane, Inc. v. Jones, Admin'x.
Thursday, September 13, 2007
Nominee No. 4
Via ConfirmThem, the Washington Post reports here that Rod Rosenstein, U.S. Attorney for the District of Maryland, will be nominated to the Fourth Circuit to the seat formerly held by the late Judge Murnaghan. There have been stories like this before about Rosenstein's prospects.
If it's true, then there would be four pending nominations for the five vacancies on the Fourth Circuit.
Give us one more - from Virginia.
If it's true, then there would be four pending nominations for the five vacancies on the Fourth Circuit.
Give us one more - from Virginia.
824 Supreme Court orders
It says here the Virginia Supreme Court entered 824 orders on motions other than for extension of time in 2005-2006.
Tuesday, September 11, 2007
Dahlia Lithwick smacks down Steve Matthews on account of Rush Limbaugh
This column in Slate gives the latest nominees to the Fourth Circuit a big thumbs down - on the theory that one of them at least is a known associate of wingnuts on the Right.
This is encouraging to those of who never join anything and don't know anybody, maybe we'll be the only ones left to be judges in the end.
Oops, too late, I'm already associated with this group. (By the way, scroll down and read the first comment below the ODBA picture, what's that all about?)
This is encouraging to those of who never join anything and don't know anybody, maybe we'll be the only ones left to be judges in the end.
Oops, too late, I'm already associated with this group. (By the way, scroll down and read the first comment below the ODBA picture, what's that all about?)
Monday, September 10, 2007
On the late Ben Gardner
The whole time I've been a lawyer, Jim Elliott has told me stories about his friends, including one in particular named Ben Gardner from Martinsville.
Stories about him are in today's Martinsville paper and yesterday's paper, and this piece from the Danville paper reproduced on the law firm's website.
He had the sailing column on Roanoke.com, and could write about whatever he wanted there, such as this. If you root around the website you can also find this story by Mark Taylor about having the last sail of the season with Ben Gardner and crew.
Stories about him are in today's Martinsville paper and yesterday's paper, and this piece from the Danville paper reproduced on the law firm's website.
He had the sailing column on Roanoke.com, and could write about whatever he wanted there, such as this. If you root around the website you can also find this story by Mark Taylor about having the last sail of the season with Ben Gardner and crew.
Leftovers
From last week:
The Joel Bieber blog has this post on the case of illegal use of a musical device in Portsmouth, involving ice cream trucks - which reminds of another case, the one with the preacher singing too loud in his case.
On the farm in Blacksburg, the scientists are converting poultry litter into fuel.
This incredibly interesting article deals with funky predictors that defy the experts, and the resulting decline of expert discretion, against the background of how Virginia predicts which sex offenders need to be committed, post-incarceration. Evidently, the Commonwealth uses some scoring system to big the worst offenders:
"You see, Virginia’s version of the SVPA contained a super-crunching innovation. The statute included a “tripwire” that automatically sets the commitment process in motion if a super-crunching algorithm predicts that the inmate has a high risk of sexual offence recidivism. Under the statute, commissioners of the Virginia Department of Corrections were directed to review for possible commitment all prisoners about to be released who “receive a score of four or more on the Rapid Risk Assessment for Sexual Offender Recidivism”. The Rapid Risk Assessment for Sexual Offender Recidivism (RRASOR, and pronounced “razor”) is a points system based on a regression analysis of male offenders in Canada. A score of four or more on the RRASOR translates into a prediction that the inmate, if released, would in the next 10 years have a 55 per cent chance of committing another sex offence."
And, last, someone sent me this link to a website with some rather downhome constitutional arguments, on the topic of whether the Clean Water Act preempts Virginia's Dillon Rule, as regards the regulation of biosolids as fertilizer - that describes the history of litigation over anti-biosolid ordinances, in state and federal court in Virginia. It is interesting to me in part because of its characterization of the Bristol fiber case, in which I was a more than interested spectator. (One point omitted is that the Supreme Court eventually ruled in the Missouri case that Judge Jones got it wrong on the preemption issue.) In the Bristol case, we had to deal with making the claim, can a Virginia city have standing to sue the Commonwealth to enforce federal rights?
On that point, this is part of what we argued:
"There can be no doubt that there are constitutional constraints on the states’ regulation of local government. See Romer v. Evans, 517 U.S. 620, 626, 629-31 (1996) (upholding Equal Protection challenge brought by municipalities and others against a state law prohibiting municipalities from adopting laws designed to protect homosexual persons from discrimination); Lawrence County v. Lead-Deadwood School District, 469 U.S. 256, 268-69 (1985) (upholding school district’s Supremacy Clause challenge to state law requiring distribution of federal funds received by local school district); Washington v. Seattle School Dist. No. 1, 458 U.S. 457 (1982) (upholding school district’s challenge to state law prohibiting school districts from using mandatory busing to achieve racial integration); Board of Education v. Allen, 392 U.S. 236 (1968) (upholding school district’s attack on state statute requiring school districts to supply books to parochial schools). Where the interests of state and local government diverge on constitutional issues, local government meets the requirements for standing. In particular, local government has standing to bring a Supremacy Clause challenge to state statutes limiting local government in violation of federal law.
“Courts that have faced suits based on federal statutes . . . have concluded that subdivisions do have standing to sue the state.” 13A WRIGHT, MILLER, AND COOPER, FED. PRAC. & PROC. JURIS. 2d § 3531.11. See Branson School District RE-82 v. Romer, 161 F.3d 619, 628-30 (10th Cir. 1998), cert. denied, 526 U.S. 1068 (1999) (“A political subdivision has standing to sue its political parent on a Supremacy Clause claim”); Rogers v. Brockette, 588 F.2d 1057, 1067-1071 (5th Cir.), cert. denied, 444 U.S. 827 (1979) (local school board has standing to bring action against state and others challenging constitutionality of state statute which required certain school districts to participate in subsidized breakfast program); Atlantic Coast Demolition & Recycling, Inc. v. Board of Chosen Freeholders of Atlantic County, 893 F. Supp. 301, 315 (D.N.J. 1995) (“municipalities may assert claims against the creating state under the Supremacy Clause”); San Diego Unified Port District v. Gianturco, 457 F. Supp 283, 289-290 (S.D. Cal. 1978), aff’d on other grounds, 651 F.2d 1306, 1309 n.7 (9th Cir. 1981) (“If the Supremacy Clause is to be effective in achieving its purpose, its dictates must be enforceable by political subdivisions of states as well as by individuals”). “Decisions ruling that state-created municipalities or other government districts lack Fourteenth Amendment rights against the states creating them do not apply to suits brought to challenge state activities under the Supremacy Clause on grounds of preemption by federal law.” 13A WRIGHT, MILLER, AND COOPER, supra, § 3531.11 at n.55. “[No] Supreme Court case has held that a political subdivision is barred from asserting the structural protections of the Supremacy Clause of Article VI in a suit against its creating state.” Branson School Dist. RE-82, 161 F.3d at 629.
Even under other provisions of the Constitution, standing for a political subdivision might be found. See Washington, 458 U.S. at 487 n.31 (upholding attorneys’ fee award to local school board against state; “[w]hile appellants suggest that it is incongruous for a State to pay attorney’s fees to one of its school boards, it seems no less incongruous that a local board would feel the need to sue the State for a violation of the Fourteenth Amendment”); City of South Lake Tahoe v. California Tahoe Regional Planning Agency, 449 U.S. 1039, 1041-42 (1980) (White, J., dissenting from denial of certiorari) (arguing that denial of political subdivision standing was “inconsistent” with the Court’s holding in Board of Education v. Allen); City of Charleston v. Public Service Commission of West Virginia, 57 F.3d 385, 389-90 (4th Cir.), cert. denied, 516 U.S. 974 (1995) (in Contract Clause case, “whether the cities have standing to bring this suit is unclear”); Amato v. Wilentz, 952 F.2d 742, 755 (3d Cir. 1991) (“Judicial support for [rule against standing] may be waning with time”); School Bd. of the City of Richmond, Va. v. Baliles, 829 F.2d 1308, 1311 (4th Cir. 1987) (upholding standing of school district of the City of Richmond in appeal against the Commonwealth in part “because of the direct economic injury it has suffered as a result of the state defendants’ unconstitutional conduct”); Benjamin v. Malcolm, 803 F.2d 46, 54 (2d Cir. 1986), cert. denied, 480 U.S. 910 (1987) (city has standing for third-party claim against state as to claims based on prison overcrowding); United States v. Alabama, 791 F.2d 1450, 1455 (11th Cir. 1986), cert. denied, 475 U.S. 1085 (1987) (citing Rogers, there is no per se rule against municipality suits in the Eleventh Circuit); South Macomb Disposal Authority v. Township of Washington, 790 F.2d 500, 504-05 (6th Cir. 1986) (“There may be occasions in which a political subdivision is not prevented, by virtue of its status as a subdivision of the state, from challenging the constitutionality of state legislation”); Akron Board of Education v. State Board of Education of Ohio, 490 F.2d 1285 (6th Cir.), cert. denied, 417 U.S. 932 (1974) (Fourteenth Amendment claim of local board against state)."
Finally, on judicial selection, the appointment of judges (such as we do in Virginia) is taking a beating lately. This article from the K.C. Star describes the furor over the "Missouri" plan right there in Missouri, while this post describes a study that says appointed judges are no better than elected judges (even though they write more).
The Joel Bieber blog has this post on the case of illegal use of a musical device in Portsmouth, involving ice cream trucks - which reminds of another case, the one with the preacher singing too loud in his case.
On the farm in Blacksburg, the scientists are converting poultry litter into fuel.
This incredibly interesting article deals with funky predictors that defy the experts, and the resulting decline of expert discretion, against the background of how Virginia predicts which sex offenders need to be committed, post-incarceration. Evidently, the Commonwealth uses some scoring system to big the worst offenders:
"You see, Virginia’s version of the SVPA contained a super-crunching innovation. The statute included a “tripwire” that automatically sets the commitment process in motion if a super-crunching algorithm predicts that the inmate has a high risk of sexual offence recidivism. Under the statute, commissioners of the Virginia Department of Corrections were directed to review for possible commitment all prisoners about to be released who “receive a score of four or more on the Rapid Risk Assessment for Sexual Offender Recidivism”. The Rapid Risk Assessment for Sexual Offender Recidivism (RRASOR, and pronounced “razor”) is a points system based on a regression analysis of male offenders in Canada. A score of four or more on the RRASOR translates into a prediction that the inmate, if released, would in the next 10 years have a 55 per cent chance of committing another sex offence."
And, last, someone sent me this link to a website with some rather downhome constitutional arguments, on the topic of whether the Clean Water Act preempts Virginia's Dillon Rule, as regards the regulation of biosolids as fertilizer - that describes the history of litigation over anti-biosolid ordinances, in state and federal court in Virginia. It is interesting to me in part because of its characterization of the Bristol fiber case, in which I was a more than interested spectator. (One point omitted is that the Supreme Court eventually ruled in the Missouri case that Judge Jones got it wrong on the preemption issue.) In the Bristol case, we had to deal with making the claim, can a Virginia city have standing to sue the Commonwealth to enforce federal rights?
On that point, this is part of what we argued:
"There can be no doubt that there are constitutional constraints on the states’ regulation of local government. See Romer v. Evans, 517 U.S. 620, 626, 629-31 (1996) (upholding Equal Protection challenge brought by municipalities and others against a state law prohibiting municipalities from adopting laws designed to protect homosexual persons from discrimination); Lawrence County v. Lead-Deadwood School District, 469 U.S. 256, 268-69 (1985) (upholding school district’s Supremacy Clause challenge to state law requiring distribution of federal funds received by local school district); Washington v. Seattle School Dist. No. 1, 458 U.S. 457 (1982) (upholding school district’s challenge to state law prohibiting school districts from using mandatory busing to achieve racial integration); Board of Education v. Allen, 392 U.S. 236 (1968) (upholding school district’s attack on state statute requiring school districts to supply books to parochial schools). Where the interests of state and local government diverge on constitutional issues, local government meets the requirements for standing. In particular, local government has standing to bring a Supremacy Clause challenge to state statutes limiting local government in violation of federal law.
“Courts that have faced suits based on federal statutes . . . have concluded that subdivisions do have standing to sue the state.” 13A WRIGHT, MILLER, AND COOPER, FED. PRAC. & PROC. JURIS. 2d § 3531.11. See Branson School District RE-82 v. Romer, 161 F.3d 619, 628-30 (10th Cir. 1998), cert. denied, 526 U.S. 1068 (1999) (“A political subdivision has standing to sue its political parent on a Supremacy Clause claim”); Rogers v. Brockette, 588 F.2d 1057, 1067-1071 (5th Cir.), cert. denied, 444 U.S. 827 (1979) (local school board has standing to bring action against state and others challenging constitutionality of state statute which required certain school districts to participate in subsidized breakfast program); Atlantic Coast Demolition & Recycling, Inc. v. Board of Chosen Freeholders of Atlantic County, 893 F. Supp. 301, 315 (D.N.J. 1995) (“municipalities may assert claims against the creating state under the Supremacy Clause”); San Diego Unified Port District v. Gianturco, 457 F. Supp 283, 289-290 (S.D. Cal. 1978), aff’d on other grounds, 651 F.2d 1306, 1309 n.7 (9th Cir. 1981) (“If the Supremacy Clause is to be effective in achieving its purpose, its dictates must be enforceable by political subdivisions of states as well as by individuals”). “Decisions ruling that state-created municipalities or other government districts lack Fourteenth Amendment rights against the states creating them do not apply to suits brought to challenge state activities under the Supremacy Clause on grounds of preemption by federal law.” 13A WRIGHT, MILLER, AND COOPER, supra, § 3531.11 at n.55. “[No] Supreme Court case has held that a political subdivision is barred from asserting the structural protections of the Supremacy Clause of Article VI in a suit against its creating state.” Branson School Dist. RE-82, 161 F.3d at 629.
Even under other provisions of the Constitution, standing for a political subdivision might be found. See Washington, 458 U.S. at 487 n.31 (upholding attorneys’ fee award to local school board against state; “[w]hile appellants suggest that it is incongruous for a State to pay attorney’s fees to one of its school boards, it seems no less incongruous that a local board would feel the need to sue the State for a violation of the Fourteenth Amendment”); City of South Lake Tahoe v. California Tahoe Regional Planning Agency, 449 U.S. 1039, 1041-42 (1980) (White, J., dissenting from denial of certiorari) (arguing that denial of political subdivision standing was “inconsistent” with the Court’s holding in Board of Education v. Allen); City of Charleston v. Public Service Commission of West Virginia, 57 F.3d 385, 389-90 (4th Cir.), cert. denied, 516 U.S. 974 (1995) (in Contract Clause case, “whether the cities have standing to bring this suit is unclear”); Amato v. Wilentz, 952 F.2d 742, 755 (3d Cir. 1991) (“Judicial support for [rule against standing] may be waning with time”); School Bd. of the City of Richmond, Va. v. Baliles, 829 F.2d 1308, 1311 (4th Cir. 1987) (upholding standing of school district of the City of Richmond in appeal against the Commonwealth in part “because of the direct economic injury it has suffered as a result of the state defendants’ unconstitutional conduct”); Benjamin v. Malcolm, 803 F.2d 46, 54 (2d Cir. 1986), cert. denied, 480 U.S. 910 (1987) (city has standing for third-party claim against state as to claims based on prison overcrowding); United States v. Alabama, 791 F.2d 1450, 1455 (11th Cir. 1986), cert. denied, 475 U.S. 1085 (1987) (citing Rogers, there is no per se rule against municipality suits in the Eleventh Circuit); South Macomb Disposal Authority v. Township of Washington, 790 F.2d 500, 504-05 (6th Cir. 1986) (“There may be occasions in which a political subdivision is not prevented, by virtue of its status as a subdivision of the state, from challenging the constitutionality of state legislation”); Akron Board of Education v. State Board of Education of Ohio, 490 F.2d 1285 (6th Cir.), cert. denied, 417 U.S. 932 (1974) (Fourteenth Amendment claim of local board against state)."
Finally, on judicial selection, the appointment of judges (such as we do in Virginia) is taking a beating lately. This article from the K.C. Star describes the furor over the "Missouri" plan right there in Missouri, while this post describes a study that says appointed judges are no better than elected judges (even though they write more).
On Frosty Landon
This Bacon post tells of his retirement.
Whenever I see him out and about, I like to give him grieve over whatever is my latest FOIA snafu - it must be his fault, because he is Mr. FOIA.
Whenever I see him out and about, I like to give him grieve over whatever is my latest FOIA snafu - it must be his fault, because he is Mr. FOIA.
What the RedStaters are saying
Here (with 50+ comments) and here are posts at ConfirmThem on the nominations of Getchell and Matthews.
One commenter says:
"Why did Bush needlessly nominate someone not on the Warner/Webb approved list? Such foolishness! As we have already discussed, without Graham's support, Matthews is dead on arrival. Now Gretchell is dead on arrival. Oh, by the way, Conrad from North Carolina is also dead on arrival. As I have said before, maybe Bush is trying to generate an election issue in 2008. He must know perfectly well that Conrad, Gretchell and Matthews are nonconfirmable - all are very conservative white Southern males and we all know that the Dems hate those types! My only hope is that these Fourth Circuit three will make Keisler look like a liberal in the Dems' eyes and encourage his confirmation as a compromise."
Another says:
"This is just crazy. Why in the name of our sweet savior didn't Bush nominate Getchell a year ago? Either insanity, incompetence on an historic level or deliberate malfeasance."
One commenter says:
"Why did Bush needlessly nominate someone not on the Warner/Webb approved list? Such foolishness! As we have already discussed, without Graham's support, Matthews is dead on arrival. Now Gretchell is dead on arrival. Oh, by the way, Conrad from North Carolina is also dead on arrival. As I have said before, maybe Bush is trying to generate an election issue in 2008. He must know perfectly well that Conrad, Gretchell and Matthews are nonconfirmable - all are very conservative white Southern males and we all know that the Dems hate those types! My only hope is that these Fourth Circuit three will make Keisler look like a liberal in the Dems' eyes and encourage his confirmation as a compromise."
Another says:
"This is just crazy. Why in the name of our sweet savior didn't Bush nominate Getchell a year ago? Either insanity, incompetence on an historic level or deliberate malfeasance."
Sunday, September 09, 2007
On the Tennessee tax on illegal drugs
A while back, I had this post about the Tennessee tax on illegal drugs.
Now, a panel of the Tennessee Court of Appeals has ruled that the tax is unconstitutional, as reported here and discussed in this TalkLeft post.
The opinion in the case of Waters v. Chumley is here.
Once again, I look to Bill Hobbs for comment, and it sounds like now he thinks it is a bad idea.
By the way, Bill Hobbs has out a short book about Fred Thompson, titled Who is Fred Thompson? Earlier this year I went to a dinner and briefly Fred Thompson was there, and the woman standing next to me asked the same question. I told her as best I could, but I didn't think to charge her anything.
I wonder what is Fred Thompson's position on the taxation of illegal drugs. Evidently, he is taking questions from bloggers, or some of them, as noted here.
Now, a panel of the Tennessee Court of Appeals has ruled that the tax is unconstitutional, as reported here and discussed in this TalkLeft post.
The opinion in the case of Waters v. Chumley is here.
Once again, I look to Bill Hobbs for comment, and it sounds like now he thinks it is a bad idea.
By the way, Bill Hobbs has out a short book about Fred Thompson, titled Who is Fred Thompson? Earlier this year I went to a dinner and briefly Fred Thompson was there, and the woman standing next to me asked the same question. I told her as best I could, but I didn't think to charge her anything.
I wonder what is Fred Thompson's position on the taxation of illegal drugs. Evidently, he is taking questions from bloggers, or some of them, as noted here.
On books
Ray Ward has been reading Thomas Merton's The Seven Storey Mountain, which I have read at some time or another.
Or was it The Seven Pillars of Wisdom? I think I have read both.
The book I just read was a biography of James Smithson, whose bequest led to the creation of the Smithsonian. Before that, I read a collection of O. Henry stories, the two latest Gabriel Allon books by Daniel Sylva, and The Forest by Edward Rutherfurd.
Somehow, Dana picks the books, I just read them.
Or was it The Seven Pillars of Wisdom? I think I have read both.
The book I just read was a biography of James Smithson, whose bequest led to the creation of the Smithsonian. Before that, I read a collection of O. Henry stories, the two latest Gabriel Allon books by Daniel Sylva, and The Forest by Edward Rutherfurd.
Somehow, Dana picks the books, I just read them.
Lame DOJ take on net neutrality
This Concurring Opinions post debunks a public comment from the Antitrust Division of the Department of Justice on net neutrality.
The government says:
"The Department submits, however, that free market competition, unfettered by unnecessary governmental regulatory restraints, is the best way to foster innovation and development of the Internet. Free market competition drives scarce resources to their fullest and most efficient use, spurring businesses to invest in and sell as efficiently as possible the kinds and quality of goods and services that consumers desire. Past experience has demonstrated that, absent actual market failure, the operation of a free market is a far superior alternative to regulatory restraints."
That's great - if the government would act to force and enforce competition. If there really was competition, net neutrality would not be an issue.
Here's more from Techdirt: "Does the DOJ not realize that the market for broadband is already heavily regulated, which is why most consumers here only have one or two choices -- compared to other countries that have created more open markets on top of the infrastructure, allowing for competition, faster speeds and increased innovation?"
The government says:
"The Department submits, however, that free market competition, unfettered by unnecessary governmental regulatory restraints, is the best way to foster innovation and development of the Internet. Free market competition drives scarce resources to their fullest and most efficient use, spurring businesses to invest in and sell as efficiently as possible the kinds and quality of goods and services that consumers desire. Past experience has demonstrated that, absent actual market failure, the operation of a free market is a far superior alternative to regulatory restraints."
That's great - if the government would act to force and enforce competition. If there really was competition, net neutrality would not be an issue.
Here's more from Techdirt: "Does the DOJ not realize that the market for broadband is already heavily regulated, which is why most consumers here only have one or two choices -- compared to other countries that have created more open markets on top of the infrastructure, allowing for competition, faster speeds and increased innovation?"
On mountaintop removal
This article is summarized:
"This Comment examines the legal strategies and techniques utilized in a series of environmental lawsuits challenging mountaintop removal coal mining. This case study also explores the role that Public Justice plays in affecting positive change through public interest law. Many are unaware of both the devastation mountaintop removal coal mining causes in the Appalachians and the contributions of trial lawyers to public interest law. To shed light on both these issues, this Comment discusses the background of mountaintop removal coal mining and Public Justice, the history of litigation and legal strategies used to further the campaign against such devastating mining techniques, and the role of politics, policy, and publicity."
"This Comment examines the legal strategies and techniques utilized in a series of environmental lawsuits challenging mountaintop removal coal mining. This case study also explores the role that Public Justice plays in affecting positive change through public interest law. Many are unaware of both the devastation mountaintop removal coal mining causes in the Appalachians and the contributions of trial lawyers to public interest law. To shed light on both these issues, this Comment discusses the background of mountaintop removal coal mining and Public Justice, the history of litigation and legal strategies used to further the campaign against such devastating mining techniques, and the role of politics, policy, and publicity."
On sovereign immunity and the Virginia Tech victims
The Washington Post ran this article about how some law firm has been retained by some of the families of victims from the shootings at Virginia Tech.
Part of the discussion is whether the Commonwealth could rely on sovereign immunity, and the caps contained in the Virginia Tort Claims Act.
In "Validity and construction of statute or ordinance limiting the kinds or amount of actual damages recoverable in tort action against governmental unit," 43 A.L.R.4th 19 (1986 & Supp.), the authors wrote:
"To balance the public's right of action pursuant to such waiver of immunity with the government's need to protect public coffers from potentially devastating claims, several jurisdictions have adopted statutes and ordinances, often incorporated in waiver legislation, limiting the amounts or kinds of damages recoverable against government tortfeasors.[FN3] Courts have almost uniformly recognized that legislative bodies have the power to prescribe such limits, and that the limits prescribed are constitutionally valid (§§ 3-7, infra). Though they may abridge the remedies of victims of government, as opposed to private torts, damage limitation statutes or ordinances are almost unanimously viewed as having a rational basis in the government's need to provide for effective risk management (§ 3[a], infra), although one court has applied the strict scrutiny test in concluding that a statute limiting recovery to "economic losses" unconstitutionally deprived a government tort victim of a fundamental right.[FN4] In addition to repelling equal protection attacks on damage limitation laws, the courts have also consistently rejected arguments that such enactments violate due process (§ 4, infra), or that they abridge state constitutional guaranties of access to courts for redress of grievances (§ 5, infra), or impair vested rights (§ 6, infra). With respect to the latter arguments, the courts have reasoned that damage limitation statutes involve no denial of redress or impairment of rights where there was no right of action at all prior to waiver of governmental immunity, that a right to redress does not include a right to full compensation, and that the restriction of damages recoverable by victims of proprietary conduct is not objectionable where waiver legislation, by effectively abolishing proprietary-governmental analysis, broadens the class of persons entitled to relief."
The issue suggested by the discussion in the article is not the validity but the scope of the liability cap under the Virginia Tort Claims Act:
"Grenier argues that the state's immunity is not ironclad. He cites a provision of the state code that says a claimant can recover up to $100,000 "or the maximum limits of any liability policy maintained to insure against such negligence or other force if such policy is in force at the time of the act."
Virginal Tech does not have its own insurance. It is covered by the state Treasury Department's Division of Risk Management.
Virginia Solicitor General William E. Thro said he is confident that the courts would uphold the $100,000 cap. "Any ambiguities are construed in favor of the commonwealth," Thro said.
Grenier counters that he has not "found any case law that backs up the commonwealth's argument."
In fact, Grenier settled a wrongful death case with Virginia for $1.2 million in 2001 that involved a juvenile at a youth detention center.
In 2000, the state paid $750,000 to settle a suit brought by the daughter of a woman who was killed in 1997 when a balcony collapsed during the University of Virginia commencement ceremony. Several other relatives split separate settlements that totaled $790,000. Kilgore, who settled the University of Virginia case, said the state will have to quickly determine how broad its immunity is and then consider its options.
"Once the judge rules or is about to rule what your liability cap is or isn't . . . you have to quickly make strategic decisions about how to proceed," Kilgore said."
This BLT post says the lawyers are also working on a federal civil rights action. The state law of sovereign immunity has no application to a federal civil rights action; the state and its agencies cannot be sued in federal court because of the Eleventh Amendment, but state actors can be and are sued individually under 42 U.S.C. 1983 - but not for negligence, and in their individual capacities they have the defense of qualified immunity.
Part of the discussion is whether the Commonwealth could rely on sovereign immunity, and the caps contained in the Virginia Tort Claims Act.
In "Validity and construction of statute or ordinance limiting the kinds or amount of actual damages recoverable in tort action against governmental unit," 43 A.L.R.4th 19 (1986 & Supp.), the authors wrote:
"To balance the public's right of action pursuant to such waiver of immunity with the government's need to protect public coffers from potentially devastating claims, several jurisdictions have adopted statutes and ordinances, often incorporated in waiver legislation, limiting the amounts or kinds of damages recoverable against government tortfeasors.[FN3] Courts have almost uniformly recognized that legislative bodies have the power to prescribe such limits, and that the limits prescribed are constitutionally valid (§§ 3-7, infra). Though they may abridge the remedies of victims of government, as opposed to private torts, damage limitation statutes or ordinances are almost unanimously viewed as having a rational basis in the government's need to provide for effective risk management (§ 3[a], infra), although one court has applied the strict scrutiny test in concluding that a statute limiting recovery to "economic losses" unconstitutionally deprived a government tort victim of a fundamental right.[FN4] In addition to repelling equal protection attacks on damage limitation laws, the courts have also consistently rejected arguments that such enactments violate due process (§ 4, infra), or that they abridge state constitutional guaranties of access to courts for redress of grievances (§ 5, infra), or impair vested rights (§ 6, infra). With respect to the latter arguments, the courts have reasoned that damage limitation statutes involve no denial of redress or impairment of rights where there was no right of action at all prior to waiver of governmental immunity, that a right to redress does not include a right to full compensation, and that the restriction of damages recoverable by victims of proprietary conduct is not objectionable where waiver legislation, by effectively abolishing proprietary-governmental analysis, broadens the class of persons entitled to relief."
The issue suggested by the discussion in the article is not the validity but the scope of the liability cap under the Virginia Tort Claims Act:
"Grenier argues that the state's immunity is not ironclad. He cites a provision of the state code that says a claimant can recover up to $100,000 "or the maximum limits of any liability policy maintained to insure against such negligence or other force if such policy is in force at the time of the act."
Virginal Tech does not have its own insurance. It is covered by the state Treasury Department's Division of Risk Management.
Virginia Solicitor General William E. Thro said he is confident that the courts would uphold the $100,000 cap. "Any ambiguities are construed in favor of the commonwealth," Thro said.
Grenier counters that he has not "found any case law that backs up the commonwealth's argument."
In fact, Grenier settled a wrongful death case with Virginia for $1.2 million in 2001 that involved a juvenile at a youth detention center.
In 2000, the state paid $750,000 to settle a suit brought by the daughter of a woman who was killed in 1997 when a balcony collapsed during the University of Virginia commencement ceremony. Several other relatives split separate settlements that totaled $790,000. Kilgore, who settled the University of Virginia case, said the state will have to quickly determine how broad its immunity is and then consider its options.
"Once the judge rules or is about to rule what your liability cap is or isn't . . . you have to quickly make strategic decisions about how to proceed," Kilgore said."
This BLT post says the lawyers are also working on a federal civil rights action. The state law of sovereign immunity has no application to a federal civil rights action; the state and its agencies cannot be sued in federal court because of the Eleventh Amendment, but state actors can be and are sued individually under 42 U.S.C. 1983 - but not for negligence, and in their individual capacities they have the defense of qualified immunity.
On the new Fourth Circuit nominees
President Bush has announced the nominations of E. Duncan Getchell, Jr., of McGuire Woods and Steve Matthews of Charleston to the Fourth Circuit.
ACS Blog links here to comments by Senator Warner in the Norfolk paper and in a press release from Senator Webb, to the effect that the White House will deserve what it gets for not picking someone from the list tendered by Warner and Webb.
The Richmond paper has this report, titled "White House defends nominee for 4th Circuit: Neither Warner, Webb recommended Getchell in bipartisan judge picks." This article says Senator Webb's office was likely to stop the Getchell nomination from getting anywhere.
The Washington Post had this report. Paul Fletcher had this post. Sean Andrussier had posts here and here.
If the White House had acted months (or years) ago, these nominees would have made it without any problem. But then, this is the same bunch that thought the Harriet Miers nomination really was a good idea, or so says Jan Crawford Greenburg.
ACS Blog links here to comments by Senator Warner in the Norfolk paper and in a press release from Senator Webb, to the effect that the White House will deserve what it gets for not picking someone from the list tendered by Warner and Webb.
The Richmond paper has this report, titled "White House defends nominee for 4th Circuit: Neither Warner, Webb recommended Getchell in bipartisan judge picks." This article says Senator Webb's office was likely to stop the Getchell nomination from getting anywhere.
The Washington Post had this report. Paul Fletcher had this post. Sean Andrussier had posts here and here.
If the White House had acted months (or years) ago, these nominees would have made it without any problem. But then, this is the same bunch that thought the Harriet Miers nomination really was a good idea, or so says Jan Crawford Greenburg.
Updated ABA trial standards
Here is the 2007 version of Civil Trial Practice Standards, from the ABA.
Cav Man v. Akron Zip
Sometime this week, cast a vote in the CapitalOne Bowl mascot challenge.
OK, it may not be as exciting as a sausage race, such as these.
OK, it may not be as exciting as a sausage race, such as these.
Friday, September 07, 2007
They say I wouldn't recognize the place now
Some day, I might go back to Lancaster County just to look around, but everything I remember will be gone or have moved, like the Freeze and Frizz - it says here they lost their lease after 38 years.
Philly steaks and ice cream - I'd go there tonight, if it wasn't 450 miles away. If they were closed, I'd go to Captain Gus's Steak Shop. A couple of years back I went to New Jersey with Tim McAfee and Jerry Gray and they laughed when I ordered a steak sandwich that appeared to be about two feet long, but there was none left afterwards.
And, that guy we deposed at Fort Dix made it back to Southwest Virginia, or so I'm told.
Philly steaks and ice cream - I'd go there tonight, if it wasn't 450 miles away. If they were closed, I'd go to Captain Gus's Steak Shop. A couple of years back I went to New Jersey with Tim McAfee and Jerry Gray and they laughed when I ordered a steak sandwich that appeared to be about two feet long, but there was none left afterwards.
And, that guy we deposed at Fort Dix made it back to Southwest Virginia, or so I'm told.
Thursday, September 06, 2007
On granting stay of money judgment in a bankruptcy case appealed to the Fourth Circuit
In the case of Mountain Empire Oil Co. v. Callahan, Trustee, Chief Judge Jones of the W.D. Va. concluded that he could and should order a stay of the money judgment he had previously entered, conditioned upon the posting of a supercedeas bond.
Wednesday, September 05, 2007
On the retirement of Paul Dellinger
Blue Ridge Muse has this post paying tribute to the now-retired Roanoke Times reporter, Paul Dellinger.
The Roanoke paper has Dellinger's parting shots and this story, which says in part:
"Sometimes, he could appear less than alert. "He'd sit with his eyes closed," recalled Glen Williams, senior U.S. district judge in Abingdon who has known Dellinger 30 years. But the next day, a complex trial would be boiled down in Dellinger's story to a complete and concise account. "He was listening. Had to be. He was always accurate. You could depend on him," Williams said. "He's a great reporter." . . .
Rick Rose, producing artistic director at the Barter Theatre, remembered meeting Dellinger at the news conference called to announce Rose's appointment to the theater in 1992. The local media chose to cover a leaping donkey at the Washington County Fair that day instead, Rose said, but Dellinger was at the theater announcement. . . .
"Paul is, of course, Southwest Virginia's ambassador to Vulcan, and so he and I have shared many tales about the world of science fiction," quipped another well-known local writer, Sharyn McCrumb. "He is encyclopedic on his knowledge of old Western movies, and occasionally I have asked him for research advice for something I was working on. In a story called 'Foggy Mountain Breakdown,' I needed the boys to go to a Southwest Virginia movie theater to see a Western serial, and Paul told me exactly what was playing that week in Bristol and described the action in the film for me." . . .
And what does a man who has written news stories for 44 years do when he retires?
He keeps on writing, of course. Dellinger says he'll write more fiction and also take some courses at a community college.
His wife suspects he'll also start sleeping late. "He tends to be a night owl.""
The Roanoke paper has Dellinger's parting shots and this story, which says in part:
"Sometimes, he could appear less than alert. "He'd sit with his eyes closed," recalled Glen Williams, senior U.S. district judge in Abingdon who has known Dellinger 30 years. But the next day, a complex trial would be boiled down in Dellinger's story to a complete and concise account. "He was listening. Had to be. He was always accurate. You could depend on him," Williams said. "He's a great reporter." . . .
Rick Rose, producing artistic director at the Barter Theatre, remembered meeting Dellinger at the news conference called to announce Rose's appointment to the theater in 1992. The local media chose to cover a leaping donkey at the Washington County Fair that day instead, Rose said, but Dellinger was at the theater announcement. . . .
"Paul is, of course, Southwest Virginia's ambassador to Vulcan, and so he and I have shared many tales about the world of science fiction," quipped another well-known local writer, Sharyn McCrumb. "He is encyclopedic on his knowledge of old Western movies, and occasionally I have asked him for research advice for something I was working on. In a story called 'Foggy Mountain Breakdown,' I needed the boys to go to a Southwest Virginia movie theater to see a Western serial, and Paul told me exactly what was playing that week in Bristol and described the action in the film for me." . . .
And what does a man who has written news stories for 44 years do when he retires?
He keeps on writing, of course. Dellinger says he'll write more fiction and also take some courses at a community college.
His wife suspects he'll also start sleeping late. "He tends to be a night owl.""
Tuesday, September 04, 2007
A Brief History of Bristol's Rhythm and Roots Reunion
This Cybergrass post has the background on the downtown music festival that happens again in a few days.
Monday, September 03, 2007
The next lawyer down the hall
From the VBA website:
"Congratulations to the VBA Young Lawyers Division for its superb showing in the American Bar Association Awards of Achievement Competition! At the recent ABA Annual Meeting, the VBA/YLD received first place in Division IC for its Comprehensive application, first place for Service to the Bar (Attorney Mentor and Referral Network), and second place for Service to the Public (Legal Food Frenzy). Many thanks to Awards of Achievement Chair Lucas Hobbs, who compiled the entry materials, and to the entire Division for its excellent work!"
"Congratulations to the VBA Young Lawyers Division for its superb showing in the American Bar Association Awards of Achievement Competition! At the recent ABA Annual Meeting, the VBA/YLD received first place in Division IC for its Comprehensive application, first place for Service to the Bar (Attorney Mentor and Referral Network), and second place for Service to the Public (Legal Food Frenzy). Many thanks to Awards of Achievement Chair Lucas Hobbs, who compiled the entry materials, and to the entire Division for its excellent work!"
Sunday, September 02, 2007
They said it
"The only thing I was surprised about is that they scored."
Wyoming running back Devin Moore, quoted here, commenting on the 23-3 win over the Virginia Cavaliers.
From the same article:
"We just out-played them in every sense of the word."
Wyoming Coach Joe Glenn.
"Over the past 27 years, since a loss to Maryland in 1980, Virginia's two worst performances in terms of total yards have come in its past two games."
Eric Prisbell, in the Washington Post.
"Virginia had been able to hang around thanks mainly to senior Ryan Weigand, who punted 10 times for a 51.4-yard average. Weigand's 514 punting yards broke the school record of 449 yards held by Russ Henderson since 1977.
That 1977 team also was the worst Virginia team offensively until last year's Cavaliers averaged 257.2 yards in Mike Groh's first season as offensive coordinator."
Doug Doughty, in the Roanoke Times.
Wyoming running back Devin Moore, quoted here, commenting on the 23-3 win over the Virginia Cavaliers.
From the same article:
"We just out-played them in every sense of the word."
Wyoming Coach Joe Glenn.
"Over the past 27 years, since a loss to Maryland in 1980, Virginia's two worst performances in terms of total yards have come in its past two games."
Eric Prisbell, in the Washington Post.
"Virginia had been able to hang around thanks mainly to senior Ryan Weigand, who punted 10 times for a 51.4-yard average. Weigand's 514 punting yards broke the school record of 449 yards held by Russ Henderson since 1977.
That 1977 team also was the worst Virginia team offensively until last year's Cavaliers averaged 257.2 yards in Mike Groh's first season as offensive coordinator."
Doug Doughty, in the Roanoke Times.
Bluegrass musician as ambassador
This little green footballs post tells of the new diplomatic position of a former bandsman with Doyle Lawson & Quicksilver.
Doyle himself is from near Kingsport.
From YouTube, here are two minutes of Doyle Lawson & Quick Silver with Jamie Dailey:
Doyle himself is from near Kingsport.
From YouTube, here are two minutes of Doyle Lawson & Quick Silver with Jamie Dailey:
Has the law on motions to dismiss really changed?
This Legal Theory post links to an article that claims that the law has been changed so much by the recent Supreme Court cases that it is now unconstitutional.
On Virginia as the birthplace of U.S. corporate law
William & Mary Law Professor Oman has this post, titled Virginia and the Birth of Corporate Law.
He says in part:
"The third charter was provoked by the desire of the company to extend its jurisdiction to take in most of the western Atlantic. In particular, they wanted control of Bermuda, where a Virginia-bound ship had wrecked, living about 120 colonists to live on the island for nearly a year while they built a ship to take them to Virginia. (The incident served as the inspiration for Shakespeare's play The Tempest.) The new charter, however, did several things beyond giving the company control over 'The Devil's Isles.'
. . . [M]ost interestingly in my view, it dispensed with the oath of supremacy for investors. This meant that Catholics would be allowed to buy shares in good conscience. The last move is interesting because while the colony remained militantly Protestant and anti-Catholic (or at least anti-Spanish), the innovation does mark the beginning of a shift toward a view of commerce as a realm in which religious differences need not be an impediment to peaceful cooperation."
He says in part:
"The third charter was provoked by the desire of the company to extend its jurisdiction to take in most of the western Atlantic. In particular, they wanted control of Bermuda, where a Virginia-bound ship had wrecked, living about 120 colonists to live on the island for nearly a year while they built a ship to take them to Virginia. (The incident served as the inspiration for Shakespeare's play The Tempest.) The new charter, however, did several things beyond giving the company control over 'The Devil's Isles.'
. . . [M]ost interestingly in my view, it dispensed with the oath of supremacy for investors. This meant that Catholics would be allowed to buy shares in good conscience. The last move is interesting because while the colony remained militantly Protestant and anti-Catholic (or at least anti-Spanish), the innovation does mark the beginning of a shift toward a view of commerce as a realm in which religious differences need not be an impediment to peaceful cooperation."
Professor Tribe, wrong again
This Concurring Opinions post says that Professor Tribe takes the view that a requirement of net neutrality would violate the First Amendment rights of the network providers.
When there is a high level of broadband competition everywhere, then I'll be sympathetic to the "speech" rights of the network owners.
When there is a high level of broadband competition everywhere, then I'll be sympathetic to the "speech" rights of the network owners.
Competition for West and Lexis?
This post links to others discussing a new effort to publish federal and state court opinions for free on the Internet.
Subscribe to:
Posts (Atom)