Saturday, January 12, 2008

On painkiller abuse in Southwest Virginia

Sunday's Washington Post has this lengthy report, particularly methadone. The article associates the problem with coal mining, but I wonder whether a likelier cause would be lack of coal mining employment, the level of employment in the mines is not what it was notwithstanding the rise in energy prices.

Worth reading

Williamsburg's own National Center for State Courts has this report on future trends in state courts. You'd think that with the NCSC here, Virginia's state courts would be the most advanced in the nation, or at least the most considered. I can't get over the Virginia Supreme Court's new font rule (Courier-Verdana) as a metaphor for whatever else ails Virginia's court system; whoever conceived and supported that rule doesn't read or doesn't care what the "experts" think (much less the crackpots like myself). Even Adobe says: "Generally, serif text fonts are dramatically easier to read than sans serif text fonts." (OK, I'll follow Ray Ward's advice and let go of this issue.)

This interesting post from Concurring Opinions talks about some research based on the video that led the U.S. Supreme Court to reverse the denial of summary judgment in the case of Scott v. Harris. It is interesting to think about, when is what a videotape shows not a matter of genuine dispute?

This post laments the state of the presidential primaries. From my recollection, having studied this off and on for thirty years, the primaries began as a Progressive impulse in the early 20th century, but were largely ignored by such voices for democracy as Harry Daugherty (Warren Harding's campaign manager, famous for the original "smoke-filled room"), and the "modern" era of the primaries began perhaps in 1960, when Kennedy beat Humphrey in West Virginia, proving his electability in a "protestant" state, but really as late as the 1970s, when McGovern and then Carter mastered the delegate selection rules to the chagrin of party insiders. There's nothing 19th century about the primaries; they didn't really exist before the television era.

In the saga of the Harman Mining case, Harman Mining is now claiming that Don Blankenship was seen having dinner with the Chief Justice of the West Virginia Supreme Court a few weeks before the opinion reversing the $60 million verdict against Blankenship's company came out. Also in West Virginia, a lawyer failed to appear at a Supreme Court hearing on whether he should lose his license.

In Florida, a blogging lawyer took on the representation of a criminal defense lawyer in connection with the gag order in a criminal case, and now the gag order applies to him, too.

Here's the liberal line against a Bush appointee to a judgeship in Wyoming, whose website suggests to me he is mostly a plaintiff's lawyer representing injured people.

Reason has this post about a recent NC case, where it was apparently held that the attorney-client privilege ends with the death of the client. Wasn't that the issue in the Vince Foster case?

Speaking of Vince Foster, Wonkette notes here that freaky vampire/witch/mummy writer Anne Rice is enthusiastically endorsing Ms. Clinton. I have read almost all the Anne Rice books, at least the ones written under the name of Anne Rice (and not Rampling or Roquelaure) - and so I conclude that she will not be given a cabinet position in the Clinton administration.

Thursday, January 10, 2008

Worth reading

Here is an interesting article on the oral argument before the Supreme Court in the medical malpractice cases involving the issue charitable immunity, quoting Steve Emmert among others who participated in the argument. The issue was described "as the most significant matter taken up by the court regarding medical malpractice since 1990, when the Virginia Supreme Court upheld the state's limit on malpractice awards."

The Daily Press reports here and here on the life and times of the late Judge Nelson Overton.

The Daily Press also reports here on candidates for the circuit court judgeship in Hampton.

This First Amendment website links to Chief Judge Jones' denial of summary judgment in the case of Cole v. Buchanan County School Board.

The Richmond paper has reports here and here on the litigation between the Richmond mayor and city council, as it heads in the direction of the Virginia Supreme Court.

Here is a report on a case related to a Board of Supervisors election in Nelson County, headed to the Virginia Supreme Court. The vote was 324-321, but the loser got a court order preventing the winner from taking office while the outcome is still in dispute.

From the Fourth Circuit, in DirecTV, Inc. v. Tolson, the Court in an opinion by Judge Shedd, joined by Judge Niemeyer and District Judge Brinkema, refused on comity grounds to take the Dormant Commerce Clause challenge brought by satellite TV broadcasters to North Carolina's taxation scheme for satellite and cable television. It was interesting to read the facts, as to how the law has changed in North Carolina, going away from local franchise taxation to a scheme whereby the state collects the tax and pays back to the localities. Something like that will happen in Virginia, one of these days.

Wednesday, January 09, 2008

What have these cases got in common?

An elderly ex-mayor in Northern Virginia got a suspended jail sentence for running a brothel in a strip mall, as described here in the Washington Post.

A former town employee in Southwest Virginia convicted of reselling pipe bought with town money "was sentenced to 27 months in prison and ordered to pay back $139,962 of town money," according to this story in the Roanoke Times.

Tuesday, January 08, 2008


Judge Wilkinson dissented here from the denial of rehearing en banc in the Virginia Republican primary case. He wrote: "At a minimum, courts should not use the American Constitution to weaken the centrist impulses in American politics. It should be clear that an open primary, where candidates must compete for votes beyond their party’s core adherents, is a permissible choice for a state to make. To use our unelected powers to foreclose this electoral option would prove the worst of self-inflicted wounds."

In Gilda v. U.S., the Federal Circuit dealt with the timeliness of the notice of appeal that was defectively e-filed on the last day. The lawyer in that case should be glad he is not in the federal court in California where the judge rejected the one day late-filed attorneys' fee petition in Toshiba America Information Systems v. New England Technology.

In the Seventh Circuit, Judge Easterbrook took on the lack of science behind the Q-Ray Ionized Bracelet in this opinion: "Defendants might as well have said: 'Beneficent creatures from the 17th Dimension use this bracelet as a beacon to locate people who need pain relief, and whisk them off to their homeworld every night to provide help in ways unknown to our science.'"

On standards of review

In Evans v. Eaton Corp. Long Term Disability Plan, Judge Wilkinson wrote this on standards of review:

"The purpose of standards of review is to focus reviewing courts upon their proper role when passing on the conduct of other decisionmakers. Standards of review are thus an elemental expression of judicial restraint, which, in their deferential varieties, safeguard the superior vantage points of those entrusted with primary decisional responsibility. The clear error standard, for example, protects district courts’ primacy as triers of fact. See Anderson v. Bessemer City, 470 U.S. 564, 574-75 (1985). AEDPA’s reasonableness standards protect state courts’ authority over state criminal convictions. See 28 U.S.C. § 2254(d) (2000). Chevron deference, like the Administrative Procedure Act’s arbitrary-and-capricious and substantial evidence standards, protects agencies’ authority in carrying out the missions for which they are created. See 5 U.S.C. § 706 (2000); Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843 (1984). Rational basis review protects the political choices of our government’s elected branches. See FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 314 (1993) (calling the standard "a paradigm of judicial restraint"). And trust law, to which ERISA is so intimately linked, Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 110 (1989), uses the abuse of discretion standard to protect a fiduciary’s decisions concerning the trust funds in his care. See 3 Restatement (Third) of Trusts § 87 (2007).

The precise definitions of these various standards, the nuances separating them from one another, "cannot be imprisoned within any forms of words" for "we cannot escape, in relation to this problem, the use of undefined defining terms." Universal Camera Corp. v. NLRB, 340 U.S. 474, 489 (1951) (Frankfurter, J.). But what these and other such standards share is the designation of a primary decisionmaker other than the reviewing court, and the instrument, deference, with which that primacy is to be maintained."

Then, he applied the standard of review to reverse the District Court's conclusion in an ERISA benefits case.

On Judge Hogan

Last month, I mentioned Judge Thomas F. Hogan of the United States District Court for the District of Columbia in a post, and now I read here in the Post that that he is taking senior status.

The story begins:

"On the wall of his chambers looking out on the U.S. Capitol, U.S. District Chief Judge Thomas F. Hogan has a treasured keepsake -- a framed picture of Ronald Reagan, doubled over in a laughing fit.

Fred Fielding, who was the White House counsel at the time, sent Hogan the photo of Reagan guffawing in the Oval Office with his advisers shortly after he appointed the young trial lawyer to the federal bench in 1982. A note is scribbled alongside the picture:

'Dear Tom,

We all thought your judgeship was a great idea.'"

The swallows and the crystal ball

Today, in John R. Sand & Gravel Co. v. U.S., the Supreme Court by 7-2 vote held that the statute of limitations for a claim against the U.S. under 28 U. S. C. §2501 could not be waived.

Distinguishing other cases where the limitations statutes for claims against the Government were held to be waivable, or subject to equitable estoppel, Justice Breyer concluded: "But these few swallows cannot make petitioner’s summer."

Justice Stevens and Justice Ginsburg thought the later cases were better-reasoned, and provided a basis for overruling the old cases to the contrary.

In her separate dissent, Justice Ginsburg invoked the crystal ball:

"Several times, in recent Terms, the Court has discarded statutory decisions rendered infirm by what a majority considered to be better informed opinion. See, e.g., Leegin Creative Leather Products, Inc. v. PSKS, Inc., 551 U. S. ___, ___ (2007) (slip op., at 28) (overruling Dr. Miles Medi-cal Co. v. John D. Park & Sons Co., 220 U. S. 373 (1911)); Bowles v. Russell, 551 U. S. ___, ___ (2007) (slip op., at 9) (overruling Thompson v. INS, 375 U. S. 384 (1964) (per curiam), and Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc., 371 U. S. 215 (1962) (per curiam)); Illinois Tool Works Inc. v. Independent Ink, Inc., 547 U. S. 28, 42– 43 (2006) (overruling, inter alia, Morton Salt Co. v. G. S. Suppiger Co., 314 U. S. 488 (1942)); Hohn v. United States, 524 U. S. 236, 253 (1998) (overruling House v. Mayo, 324 U. S. 42 (1945) (per curiam)). In light of these overrulings, the Court’s decision to adhere to Kendall, Finn, and Soriano — while offering nothing to justify their reasoning or results—is, to say the least, perplexing. After today’s decision, one will need a crystal ball to predict when this Court will reject, and when it will cling to, its prior deci-sions interpreting legislative texts."

Monday, January 07, 2008

More on Moore v. Com., the Rule 5A:12 case

AL&P has a post about my post, and their title is Virginia sua sponte converts criminal procedure nerdery to jurisdictional oppression.

Better than a bake sale

In the works for this legislative session is a provision that would amend the charter for the City of Martinsville to specify what happens if the City sells something it owns (like, a cable system?) for $10 million to $20 million.

Kentucky Speedway loses anti-trust claim against NASCAR

Today in the E.D. Ky., Senior Judge Bertelsman granted NASCAR summary judgment on the anti-trust claims brought by the Kentucky Speedway, LLC., Case No. 05-138, over NASCAR's refusal to let the Kentucky track have a NEXTEL cup race.

The Court concluded that "a producer of a product is free under current antitrust laws to select its distributors and to refuse to deal with would-be distributors, no matter how worthy or deserving they may be. Even more fundamentally, in order to establish both its antitrust claims, Speedway was required to prove relevant markets through qualified expert testimony as part of its prima facie case. This it failed to do, after being given a sufficient opportunity. Thus, summary judgment is appropriate."

On the second issue, the Court concluded that the plaintiff's expert's testimony flunked the Daubert test.

Here is one small article on the case.

Story of the day

The Bristol paper has this story of a boy from Abingdon who enjoyed the Show Us the Cow contest in his final days.

Funky No Child Left Behind ruling from the Sixth Circuit

In Pontiac School District, et al. v. Secretary of the United States Dep’t of Educ., a a split panel of the Sixth Circuit let some local school boards off the hook from compliance with the federal No Child Left Behind Act. The majority opinion begins:

"This case requires us to decide a fundamental question of federal versus state funding under the No Child Left Behind Act of 2001 (“NCLB” or “the Act”), 20 U.S.C. §§ 6301–7941. Plaintiffs-Appellants are school districts and education associations that receive federal funding under NCLB in exchange for complying with the Act’s various educational requirements and accountability measures. Based on the so-called “Unfunded Mandates Provision,” which provides that “[n]othing in this Act shall be construed to . . . mandate a State or any subdivision thereof to spend any funds or incur any costs not paid for under this Act,” 20 U.S.C. § 7907(a), Plaintiffs filed suit in district court against the Secretary of Education seeking, among other relief, a judgment declaring that they need not comply with the Act’s requirements where federal funds do not cover the increased costs of compliance. The district court concluded, however, that Plaintiffs must comply with the Act’s requirements regardless of any federal-funding shortfall and accordingly granted the Secretary’s motion to dismiss the complaint for failure to state a claim upon which relief can be granted. Because statutes enacted under the Spending Clause of the United States Constitution must provide clear notice to the States of their liabilities should they decide to accept federal funding under those statutes, and because we conclude that NCLB fails to provide clear notice as to who bears the additional costs of compliance, we REVERSE the judgment of the district court and REMAND this case for further proceedings consistent with this opinion."

The dissent says the rulings lets the local schools boards have their federal money without complying with the strings attached to it, and that's wrong.

Why Hillary Clinton will outlaw the Super Bowl and perhaps the entire month of January

If Ms. Clinton could turn the page over to February, I'd say she would have done it by now, this year and many of the years past. What I wonder is why anyone would want her as the candidate, with all the tired old whacky background, mixed in with these Super Bowls -

January 26, 1992: Washington Redskins beat Buffalo Bills, 37-24, in Super Bowl XXVI. Later that same day, Bill and Hillary Clinton appear on Sixty Minutes, to save his campaign by defusing the bimbo eruption (borrowing the phrase of Betsey Wright) of Gennifer Flowers, as described here. Years later, in his deposition for the Paula Jones case, Bill Clinton acknowledged that he had shacked up with Ms. Flowers, which some took to mean that he lied to save his campaign on Super Bowl Sunday.

January 31, 1993: Dallas Cowboys beat Buffalo Bills, 52-17, in Super Bowl XXVII. In the previous week, President Clinton named wife Hillary Clinton to head the task force that came up with their ill-fated health care proposal of 1993.

January 30, 1994: Dallas Cowboys beat Buffalo Bills, 30-13, in Super Bowl XXVIII. A couple of weeks earlier, President Clinton asked Janet Reno to appoint the special prosecutor to investigate Whitewater, as described here, which special prosecutor was ultimately succeeded by Kenneth Starr.

January 29, 1995: San Francisco 49ers beat San Diego Chargers, 49-26, in Super Bowl XXIX. Earlier in the month, the 104th Congress began, with the Republicans in the majority in both houses for the first time since the Eisenhower administration, having gained 54 seats in the mid-term referendum on the Clinton presidency.

January 28, 1996: Dallas Cowboys beat Pittsburgh Steelers, 27-17, in Super Bowl XXX. Two days earlier, Ms. Clinton becomes first First Lady to give testimony before a federal grand jury, on subjects including the mysterious reappearance of Rose Law firm billing records, as described here.

January 26, 1997: Green Bay Packers beat New England Patriots, 35-21, in Super Bowl XXI. Earlier in the month, the 105th Congress took over, still with a Republican majority despite President Clinton's re-election, and this is the Congress which passed the Iraq Liberation Act, signed by President Clinton the next year.

January 25, 1998: Denver Broncos beat Green Bay Packers, 31-24, in Super Bowl XXXII. The next day, President Clinton held a press conference and delivered the phrase, "I did not have sexual relations with that woman, Miss Lewinsky," the subject of this page. The day after that, Ms. Clinton declares the whole thing a "vast right-wing conspiracy," leaving history with two famous phrases from the Clintons in one week.

January 31, 1999: Denver Broncos beat Atlanta Falcons, 34-19, in Super Bowl XXXIII. Four days earlier, the United States Senate by a vote of 44-56 rejected a last-ditch motion by Senator Robert Byrd of West Virginia for pre-trial dismissal of the impeachment proceedings against President Clinton, as shown in Congressional Record Vol. 145, No. 15.