Friday, August 17, 2007

Michael Vick and Professor Berman

This article from the New York Times on today's events in the Michael Vick dog case cites Professor Berman:

"According to Douglas A. Berman, a professor of law at Ohio State University who writes the blog Sentencing Law and Policy, the sentencing guidelines for all the individuals involved are 'un-chartered' territory because dog fighting just became a federal felony in May."

Professor Berman has this post, where he says: "I would bet that defense lawyers are helping Vick see that he now could be facing a quite long sentence if he does not take a plea, but prosecutors may now already looking for a significant prison term even with a plea."

Interesting opinions from the Fourth Circuit

The most interesting opinion from the Fourth Circuit this week is unpublished, the case of Simo v. Mitsubishi Motors North America, Inc., before the panel of Chief Judge Williams and Judges Traxler and Shedd.

The bottom line is that the Court upheld a $6 million-plus verdict against the defendant in a rollover case, and the legal issues are many and interesting. The plaintiff was in a car wreck near Spartanburg. He was an 18 year-old freshman soccer player at Furman. HIs injuries ended his prospects for a soccer career. One area among many of the disputed expert testimony was that the District Court allowed the testimony of a former soccer pro/soccer agent to explain that the plaintiff would have earned between $3 million and $10 million as a professional soccer player, but for the accident. The Court also concluded on the plaintiff's cross-appeal that it didn't have to decide whether the District Court erred in granting the defendant's motion for judgment as a matter of law on punitive damages, because the case could not be retried on punitives alone without retrying the whole case. On this latter point, Judge Shedd dissented, concluding that it would be appropriate to remand the case for retrial on punitive damages.

The Court in Palmer v. City National Bank, an opinion by Judge Gregory, joined by Judge Niemeyer and District Judge Norton, dealt with the complicated issues of appellate jurisdiction over a District Court order remanding a case to state court, and the continued viability and constitutionality of the doctrine of "derivative jurisdiction" as a limitation on the subject-matter jurisdiction of the federal courts in removed cases. And, the Court concluded that yes it had appellate jurisdiction, notwithstanding the limitations of 28 U.S.C. 1447, under the Waco exception to the non-appealability of remand orders, and that yes, the district court's jurisdiction was limited by the doctrine of derivative jurisdiction to that of the state trial court, and therefore it acted correctly in dismissing the third-party plaintiff's claim against the appellee federal agency.

Got that?

In Tidewater Finance Co. v. Williams, the panel of Judges Motz, Duncan, and Niemeyer each wrote an opinion. Judge Motz wrote for the majority, joined by Judge Duncan who wrote a separate concurring opinion, and Judge Niemeyer dissented, and the issue was the effect on Chapter 13 petitions on the mandatory period in between successive filing of Chapter 7 petitions. And, the frequent filer won the case, with Judge Duncan noting in her separate opinion that maybe Congress ought to fix this problem.

Interesting W.D. Va. opinions

In Blankenship v. Mead Westvaco Corp. and William v. Mead Westvaco Corp., Judge Wilson granted the employer's motions to dismiss, concluding that the plaintiffs were attempting to state a private cause of action based on OSHA, the Occupational Safety and Health Act.

In Saucedo-Gonzalez v. United States, Magistrate Judge Urbanski addresses among other things the liability of the United States under the Federal Tort Claims Act for alleged excessive force applied to an inmate, without addressing what I thought was likely to be the dispositive issue, the exclusion in 28 U.S.C. 2380(h) of claims for assault and battery - but there is an exception to the exclusion for "law enforcement officers" and so perhaps the corrections officers are considered law enforcement officers. Maybe, however, it doesn't matter whether the corrections officers are considered law enforcement officers, because in the Fourth Circuit the other exception under section 2680(a) also applies, see Welch v. U.S., 409 F.3d 646, 651-52 (4th Cir. 2005), and so Judge Urbanski's opinion addresses section 2680(a).

In Calkins v. Pacel Corp., Judge Moon agreed with the defendants' argument that the officers and directors of a publicly-traded corporation cannot tortiously interfere with the corporation's contracts, rejecting the plaintiff's request for a hearing on whether the defendants were acting with the scope of their agency. Judge Moon also denied the plaintiff's claim for preliminary injunctive relief, where the relief sought was payment of money.

In Peebles v. Four Winds International, Judge Moon concluded that the W.D. Va. could have subject matter jurisdiction over a claim under a Florida consumer protection statute, notwithstanding the reference in the statute to bringing suit in state court. The Court noted, among other things: "The Supreme Court has made it clear, in numerous cases cited by Plaintiff, that state laws have no power to limit the jurisdiction of federal courts."

Thursday, August 16, 2007

It's the ingredients that make it

One of my well-known obsessions is Bunker Hill chili, as described here.

Sure enough, the ten-ounce can we had on the shelf was on the Castleberry's recall list.

You'd have thought that all that sodium would have choked out the bacteria.

Like a river flows

Thirty years ago today, Elvis died, at the same age as a friend of mine's dad, which is the age I am now.

At my friend's wedding, the song his mom and dad danced to was this one:

Wednesday, August 15, 2007

On reality

HOWT blogs here about the recently-declared and widely-publicized thesis (as here in the NY Times) that life is just somebody's computer simulation, which brought to mind the study of the Bishop Berkeley (pronounced like Charles Barkley) back in my undergraduate days at the University, as he might suggest that we have no way of figuring out for sure that we aren't just figures in a computer simulation.

Or, rather, as suggested here:

"In his two great works of metaphysics, Berkeley defends idealism by attacking the materialist alternative. What exactly is the doctrine that he's attacking? Readers should first note that “materialism” is here used to mean “the doctrine that material things exist”. This is in contrast with another use, more standard in contemporary discussions, according to which materialism is the doctrine that only material things exist. Berkeley contends that no material things exist, not just that some immaterial things exist. Thus, he attacks Cartesian and Lockean dualism, not just the considerably less popular (in Berkeley's time) view, held by Hobbes, that only material things exist. But what exactly is a material thing? Interestingly, part of Berkeley's attack on matter is to argue that this question cannot be satisfactorily answered by the materialists, that they cannot characterize their supposed material things. However, an answer that captures what exactly it is that Berkeley rejects is that material things are mind-independent things or substances. And a mind-independent thing is something whose existence is not dependent on thinking/perceiving things, and thus would exist whether or not any thinking things (minds) existed. Berkeley holds that there are no such mind-independent things, that, in the famous phrase, esse est percipi (aut percipere) — to be is to be perceived (or to perceive)."

Yeah, this is the stuff I got for what Dad paid for my tuition.

Outside the strike zone and the scope of employment?

In this post, I quoted Judge Williams' opinion in the famous case of Simmons v. Baltimore Orioles. Judge Williams recalls that at the time, it was recognized as an Opinion of the Week, by West Publishing.

Now, the question has been raised whether the club could cite Simmons in defense of any civil claims arising out of the Jose Offerman incident.

The $63,000,000,000 billion pro se lawsuit filed by a prisoner against Michael Vick

Here is a copy of the handwritten complaint, on

The complaint concludes: "Michael Vick needs to stop physically hurting my feelings and dashing my hopes."

There's quite a few Michael Vick fans who might take the same view, on that narrow point.

Today's interesting stuff

I liked this article about the bell in the courthouse for Bland County.

Here is the opinion from U.S. v. Mooney, the gun case won by a third-year student from Wake Forest. Like Mr. Mooney's counsel, I had previously understood that there were no defenses to a gun case. In the first federal criminal trial I ever saw, the hard-hitting questions from the defense were something like this: "So, Mr. ATF agent, what evidence have you really got that this gun was interstate was in interstate commerce, besides the fact it says 'Made in Germany' on the handle?"

This article by Professor Dorf says the Twombly decision is a big deal, but this comment on the article says Dorf is wrong. The question is whether Twombly will make it harder for plaintiff's counsel to plead a case in federal court that will withstand a motion to dismiss for failure to state a claim.

On Hiram Lewis

Today I got an e-mail asking that I contribute to the campaign of Hiram Lewis for Attorney General of West Virginia.

He would be a change from Mr. McGraw, I expect, for better or worse.

Tuesday, August 14, 2007

The big Roanoke civil case against abusive driver fees

Here is the complaint in the civil case some Roanoke lawyers have filed to get the abusive driver fee scheme declared unconstitutional.

I thought class actions were generally not recognized in Virginia state court, but they are relying on some outlier exception. I saw here that they were relying on the dicta from Judge Jones in the Wise County landfill case, with which I disagreed at the time.

The complaint raises the unlawful tax issue. I have ruminated before on the question of whether there is a way under Virginia law to get a tax refund from an unconstitutional tax.

You'd think they'd have to raise these issues in the criminal case, and lose, before they could bring some kind of glorified section 1983 case. The plaintiff might be innocent.

I wouldn't be surprised if some or all of the relief sought is barred by sovereign immunity.

On bad legal arguments

Here at Prawfsblawg they are collecting favorite bad legal arguments.

One day sitting in the Fourth Circuit, I heard an exchange that went something like this:

Lawyer: ". . . Besides, that's not my only argument."

Member of the panel: "It better not be your only argument."

Alas, I've forgotten the issue.

I can remember weird evidentiary objections at trial better than weird arguments in briefs.

One of the strangest is retold here.

Monday, August 13, 2007

One lousy settlement

"Plainly and simply, this was a scheme to defraud. It was a case of unchecked avarice coupled with a total absence of shame on the part of the original lawyers. The attorneys manipulated the legal system for their own pecuniary gain and acted against their clients’ interests by attempting to deprive them of monies to which they might otherwise be entitled. More unethical and reprehensible behavior by attorneys against their own clients is difficult to imagine."

Cortina, J., from the Florida Court of Appeals, concurring in Masztal v. City of Miami.

Must not have been a no-brainer after all

VLWBlog is reporting here that the circuit court judge in Henrico County has upheld the abusive driver fees.

Retrospective on the first women to graduate from VMI

The Roanoke paper has this interesting story, which says among other things:

"A decade ago, those in favor of keeping VMI all-male predicted that the presence of women would be the demise of the nation's oldest state-supported military school.

VMI today is in the midst of a $300 million capital campaign to renovate its older buildings and update its classrooms to attract the next generation of male and female cadets. It has a strong alumni association and has received millions of dollars in endowment funds to help with efforts such as a new leadership and ethics center that broke ground this summer.

The massive building upgrades include new athletic fields and an addition to the barracks, but won't change the cadet lifestyle of sleeping on fold-up wooden cots in rooms without air conditioning and with bathroom facilities down the hall.

As for the overall acceptance of women, there are still those who think women don't belong at VMI or in the military."

Assistant Commonwealth's attorney files defamation suit against couple he prosecuted

This story says a Southwest Virginia prosecutor has filed suit seeking money damages for defamation by a couple he prosecuted, who put up negative comments about him on their website.

Looking at the Fourth Circuit

Here's sort of a whacky take on "Fourth Circuit politics." Read all the way to the comments.

It is, however, hard to reject the basic premise of the post, that the goofiness of people acting politically is what has allowed the number of vacancies on the Court to reach such a high figure.

Sunday, August 12, 2007

Virginia county boundary changes from the beginning

This page shows, among other things, that at in 1776 nearly all of today's Lee, Scott, Wise, Russell, Dickenson, and Buchanan counties were part of Washington County.

On the history of the Blue Ridge Parkway

Here is a book review from the Charlotte paper of Super Scenic Motorway: A Blue Ridge Parkway History.

In the neighborhood Monday morning

A press release from the AG's office:

"Attorney General Bob McDonnell will visit the Bristol, Virginia fire department tomorrow, Monday August 13th at 9:30AM. The Attorney General will tour the station, and meet with local firefighters, as well as Chief Walt Ford. He will be available to speak to the press at this event about public safety in the Commonwealth, and all members of the media are invited and encouraged to attend."