Nobody told me that the dog from Bill Bradshaw's law office passed away one year ago. I've never been there when she wasn't.
I have a story about that dog, but I can't tell it, except to say that she earned her keep.
Saturday, February 16, 2008
Thursday, February 14, 2008
Everything wrong with Bill Clinton in one interview
Here he says all these things:
Bill Clinton dismisses the outcome of the voting in the caucus states, because the caucus participants are "disproportionately favor upper-income voters who, who, don't really need a president but feel like they need a change." I don't even know what that means, but it sounds like hypocrisy if the same standard of "disproportionateness" is not applied to the super-delegates or even more broadly to the unfairly selected delegates from Florida and Michigan.
Bill Clinton claims that Hillary Clinton has been the underdog since the Iowa caucuses because of the opposition of "a lot of the politicians, like Senator Kennedy" and because lack of funds, all in spite of which she managed to get "plenty of delegates on a shoestring." But Hillary Clinton has more politicians, including Bill Clinton himself, and thus she leads in the super-delegate count. The "shoestring budget" was more money than any other candidate but Obama ever had to spend, and two or three times what federal funding would have provided.
On the MSNBC reporter who was suspended for what he said about Chelsea Clinton, Clinton said that if the reporter had "made a racial slur against Senator Obama, he would have been fired." Lots of people think Clinton himself made a racial slur by comparing Obama to Jesse Jackson instead of to John Edwards, when trying to make a point about recent campaigns that won in South Carolina but later came to naught. Or, maybe Bill Clinton is just stuck in the '80s.
On Ms. Clinton's protest over what was said about Chelsea Clinton, which included her threat to pull out of a debate on MSNBC, Clinton said that Ms. Clinton "just stuck up for her daughter, and for girls everywhere, and women everywhere, and it’s about time somebody did after a lot of the rhetoric we’ve been through in this election." I had understood that Clinton himself was a menace to girls and women everywhere. I mean, it can't be a coincidence that my good friend the old Democrat from over in Norton made sure to take his new wife out of the country, during the very same week that Bill Clinton was on the loose in Southwest Virginia.
Bill Clinton dismisses the outcome of the voting in the caucus states, because the caucus participants are "disproportionately favor upper-income voters who, who, don't really need a president but feel like they need a change." I don't even know what that means, but it sounds like hypocrisy if the same standard of "disproportionateness" is not applied to the super-delegates or even more broadly to the unfairly selected delegates from Florida and Michigan.
Bill Clinton claims that Hillary Clinton has been the underdog since the Iowa caucuses because of the opposition of "a lot of the politicians, like Senator Kennedy" and because lack of funds, all in spite of which she managed to get "plenty of delegates on a shoestring." But Hillary Clinton has more politicians, including Bill Clinton himself, and thus she leads in the super-delegate count. The "shoestring budget" was more money than any other candidate but Obama ever had to spend, and two or three times what federal funding would have provided.
On the MSNBC reporter who was suspended for what he said about Chelsea Clinton, Clinton said that if the reporter had "made a racial slur against Senator Obama, he would have been fired." Lots of people think Clinton himself made a racial slur by comparing Obama to Jesse Jackson instead of to John Edwards, when trying to make a point about recent campaigns that won in South Carolina but later came to naught. Or, maybe Bill Clinton is just stuck in the '80s.
On Ms. Clinton's protest over what was said about Chelsea Clinton, which included her threat to pull out of a debate on MSNBC, Clinton said that Ms. Clinton "just stuck up for her daughter, and for girls everywhere, and women everywhere, and it’s about time somebody did after a lot of the rhetoric we’ve been through in this election." I had understood that Clinton himself was a menace to girls and women everywhere. I mean, it can't be a coincidence that my good friend the old Democrat from over in Norton made sure to take his new wife out of the country, during the very same week that Bill Clinton was on the loose in Southwest Virginia.
Reading just now
I just finished reading Obama: From Promise to Power, by David Mendell, the reporter (and blogger), and started That Man: An Insider's Portrait of Franklin D. Roosevelt, by Justice Robert H. Jackson and edited by John Barrett, the fellow who puts out the Jackson e-mail list.
I expected to see and saw that one of Obama's patrons was Abner Mikva, who was referenced in the Clarence Thomas book as the least favorite of his colleagues from his days on the D.C. Circuit, and whose representation by John Tucker is described in Tucker's book, Trial and Error: The Education of a Courtroom Lawyer. Mikva was Democratic Congressman, who was gerrymandered out of office but not before one or two recounts, in which he had Tucker and others to represent him. Also, he was counsel to the White House under President Clinton, after he retired from the D.C. Circuit. The Mendell book about Obama fits well with Tucker's account of Chicago politics. It convinced me that Obama is somewhat like all the rest, inevitably so, and makes me wonder that sparks will fly soon when Clinton and/or McCain lights into him - if they ever do.
I thought the Mendell book was very entertaining, much of it sort of a "Fear and Loathing" tale of Obama's Congressional and Senatorial campaigns, and "The Plan" that followed, including his "congressional" trip to Africa in 2006, up to the announcement of his campaign for president - the stuff that Obama did that drove his campaign pros crazy.
At pages 54 and 55 of Jackson book can be found this story about the nominations of Floyd Roberts from Bristol, then Armistead Dobie, to the new position on the U.S. District Court for the Western District of Virginia:
"The President challenged and tested this practice [of senatorial courtesy] in Virginia, by making a district judge appointment in the summer of 1938 without consulting Senators Carter Glass and Harry Byrd, but I think after consultation with Governor James H. Price, who was at odds with the senators. That man, whose name was Floyd Roberts, was admittedly a competent man to hold the position, but because of the failure of the President to consult them, Senators Glass and Byrd opposed the confirmation. It became very plain that the President could not get the man confirmed. The President was plainly defeated. It was a stalemate. He would not withdraw the nomination. The post was vacant.
One day we were down on the President's yacht over the weekend, fishing and relaxing. The President said, 'I've got a job for you, Bob, and for 'Pa' Watson. I want you to go down to Charlottesville and see if you can't get Armistead M. Dobie, the Dean of the University of Virginia Law School, to accept the appointment as district judge. I think if I send his name to the Senate, the Senators from Virginia will not dare turn him down.' He thought Glass and Byrd would support Dobie and thereby break the deadlock without loss of face to anybody.
It was plain that the contest at that point had become one of personal prestige, and the President wanted to put one over that they would not dare resist. This was when I was Solicitor General, not Attorney General. He was apparently handling the matter quite independently of Attorney General Murphy. He said that there was a vacancy coming up on the Fourth Circuit Court of Appeals, and that if Dobie accepted the appointment to the district court, we could say that the President would feel that he should be promoted to the Court of Appeals when the vacancy occurred.
So 'Pa' Watson and I took a White House car and made an appointment to see Dean Dobie at the Farmington Country Club in Charlottesville. We sailed forth. When we got in the vicinity, 'Pa' Watson in his genial southern way, said, 'Bob, you handle the heavy thinking in this, and I'll go out and get a bottle of bourbon.' I talked with Dean Dobie while 'Pa' took a little trip. When 'Pa' came back, I introduced him to 'Judge' Dobie. The Dean had agreed to accept the appointment. About ten o'clock, after we had dinner and duly induced the Dean to accept, we telephoned the President that we had met the enemy and he was ours. The President immediately sent his name to the Senate, and there was a prompt announcement from Senators Byrd and Glass that they would vote for his confirmation."
I love that story. General Edwin "Pa" Watson was Roosevelt's military aide and de facto chief-of-staff, who lived at Kenwood outside Charlottesville, and died on the return from Yalta.
I expected to see and saw that one of Obama's patrons was Abner Mikva, who was referenced in the Clarence Thomas book as the least favorite of his colleagues from his days on the D.C. Circuit, and whose representation by John Tucker is described in Tucker's book, Trial and Error: The Education of a Courtroom Lawyer. Mikva was Democratic Congressman, who was gerrymandered out of office but not before one or two recounts, in which he had Tucker and others to represent him. Also, he was counsel to the White House under President Clinton, after he retired from the D.C. Circuit. The Mendell book about Obama fits well with Tucker's account of Chicago politics. It convinced me that Obama is somewhat like all the rest, inevitably so, and makes me wonder that sparks will fly soon when Clinton and/or McCain lights into him - if they ever do.
I thought the Mendell book was very entertaining, much of it sort of a "Fear and Loathing" tale of Obama's Congressional and Senatorial campaigns, and "The Plan" that followed, including his "congressional" trip to Africa in 2006, up to the announcement of his campaign for president - the stuff that Obama did that drove his campaign pros crazy.
At pages 54 and 55 of Jackson book can be found this story about the nominations of Floyd Roberts from Bristol, then Armistead Dobie, to the new position on the U.S. District Court for the Western District of Virginia:
"The President challenged and tested this practice [of senatorial courtesy] in Virginia, by making a district judge appointment in the summer of 1938 without consulting Senators Carter Glass and Harry Byrd, but I think after consultation with Governor James H. Price, who was at odds with the senators. That man, whose name was Floyd Roberts, was admittedly a competent man to hold the position, but because of the failure of the President to consult them, Senators Glass and Byrd opposed the confirmation. It became very plain that the President could not get the man confirmed. The President was plainly defeated. It was a stalemate. He would not withdraw the nomination. The post was vacant.
One day we were down on the President's yacht over the weekend, fishing and relaxing. The President said, 'I've got a job for you, Bob, and for 'Pa' Watson. I want you to go down to Charlottesville and see if you can't get Armistead M. Dobie, the Dean of the University of Virginia Law School, to accept the appointment as district judge. I think if I send his name to the Senate, the Senators from Virginia will not dare turn him down.' He thought Glass and Byrd would support Dobie and thereby break the deadlock without loss of face to anybody.
It was plain that the contest at that point had become one of personal prestige, and the President wanted to put one over that they would not dare resist. This was when I was Solicitor General, not Attorney General. He was apparently handling the matter quite independently of Attorney General Murphy. He said that there was a vacancy coming up on the Fourth Circuit Court of Appeals, and that if Dobie accepted the appointment to the district court, we could say that the President would feel that he should be promoted to the Court of Appeals when the vacancy occurred.
So 'Pa' Watson and I took a White House car and made an appointment to see Dean Dobie at the Farmington Country Club in Charlottesville. We sailed forth. When we got in the vicinity, 'Pa' Watson in his genial southern way, said, 'Bob, you handle the heavy thinking in this, and I'll go out and get a bottle of bourbon.' I talked with Dean Dobie while 'Pa' took a little trip. When 'Pa' came back, I introduced him to 'Judge' Dobie. The Dean had agreed to accept the appointment. About ten o'clock, after we had dinner and duly induced the Dean to accept, we telephoned the President that we had met the enemy and he was ours. The President immediately sent his name to the Senate, and there was a prompt announcement from Senators Byrd and Glass that they would vote for his confirmation."
I love that story. General Edwin "Pa" Watson was Roosevelt's military aide and de facto chief-of-staff, who lived at Kenwood outside Charlottesville, and died on the return from Yalta.
Wednesday, February 13, 2008
Up for argument later this month
One case is LEVISA COAL COMPANY v. CONSOLIDATION COAL COMPANY, out of Buchanan County, where the assignments of error are these:
1. The trial court’s ruling contradicts the holding in Clayborn v. Camilla Red Ash Coal Co., and other cases, which provides that a coal owner like Levisa owns the coal and appurtenant rights necessary to access and mine its coal, but not unrelated rights such as the right to store mine water from another’s mine.
2. The trial court erred in ruling that the 1956 Lease permits Consolidation to dump contaminated mine water into VP3 because Consolidation was not a party to the lease; Consolidation did not acquire rights under the lease; the lease itself prohibits assignment to another party; Consolidation and Island Creek are separate and distinct corporations; the 1956 Lease does not permit any party to dump contaminated mine water into VP3; and Levisa does not have the right under common law or the lease to grant anyone the right to dump contaminated mine water into VP3.
3. If the trial court found that Consolidation enjoys rights under the 1956 lease by virtue of agreements with Island Creek, that finding is erroneous because Island Creek could not, through contracts with third parties, increase its rights under the 1956 Lease; the purported agreements do not address water storage in the VP3 mine; those agreements are invalid, sham agreements between affiliated companies designed solely to circumvent the mineral owners’ rights; and Levisa is not a party to such agreements.
4. In denying Levisa’s request for injunctive relief, the trial court impermissibly relied upon matters not in evidence, including statements made by counsel for Consolidation in its opening statement and the trial court’s personal observations and opinions.
5. If the trial court found that Island Creek co-operates the Buchanan Mine with Consolidation and/or is discharging water into the VP3 mine, those findings are contrary to the evidence, which showed that Consolidation is the sole operator of the Buchanan Mine; Consolidation is the entity discharging the water; and Island Creek has no mining or other operations in Buchanan County, Virginia.
6. The trial court failed to consider and balance the parties’ equities by excluding evidence of the profitability of Consolidation’s Buchanan Mine.
7. The trial court erroneously treated Consolidation and Island Creek as the same entity with identical property and contractual rights where, according to the evidence, the defendant’s pleadings, and Virginia law, the two companies are separate and distinct entities.
8. The trial court erred in holding that Levisa requested the court to interpret the 1956 Lease; to the contrary, Consolidation raised the 1956 Lease provisions in support of its alleged right to dump water into the VP3 mine.
9. In ruling on Consolidation’s motion to strike at the close of Levisa’s evidence, the trial court impermissibly failed to view the evidence, and the inferences from that evidence, in the light most favorable to Levisa, the non-moving party.
10. The trial court erred in refusing to accept the affidavit of Timothy L. Hower into evidence because Virginia Code § 8.01-628 allows the court to consider affidavits on petitions for temporary injunctions and Mr. Hower had to be in Germany on the date of the hearing; and the trial court erred in refusing testimony about Consolidation’s profits from the Buchanan mine.
11. The trial court erred in denying injunctive relief by holding that Levisa has a full and adequate remedy at law on the basis that Levisa will be able to file suit when the coal becomes profitable to mine where (1) Levisa could be time-barred if suit is not filed within the five (5) year statute of limitations; (2) Levisa will have to prosecute a multiplicity of suits due to repeated and continuing harm from dumped mine water; (3) Virginia law provides for injunctive relief even if a plaintiff’s damages are nominal or speculative; and (4) any remedy Levisa has at law is not adequate to compensate Levisa and protect its property rights. Moreover, the court erred in imposing a requirement of “no adequate remedy at law” under the facts and law applicable to this case.
12. The trial court erred in denying injunctive relief by holding that Levisa is not suffering immediate and irreparable harm because: (1) the evidence showed that Levisa’s coal estate is being damaged; (2) the proffered affidavit of Timothy L. Hower showed that Levisa’s coalbed methane gas is being lost; (3) Consolidation is presently pumping mine water into VP3; (4) the amount of damages to Levisa’s coal cannot be accurately ascertained at this time; (5) Levisa cannot be fully and adequately compensated for its damages at law; and (6) Consolidation has destroyed Levisa’s property right to enter the passageways to inspect its coal. Moreover, the court erred in imposing a standard of irreparable harm, not recognized by this court.
1. The trial court’s ruling contradicts the holding in Clayborn v. Camilla Red Ash Coal Co., and other cases, which provides that a coal owner like Levisa owns the coal and appurtenant rights necessary to access and mine its coal, but not unrelated rights such as the right to store mine water from another’s mine.
2. The trial court erred in ruling that the 1956 Lease permits Consolidation to dump contaminated mine water into VP3 because Consolidation was not a party to the lease; Consolidation did not acquire rights under the lease; the lease itself prohibits assignment to another party; Consolidation and Island Creek are separate and distinct corporations; the 1956 Lease does not permit any party to dump contaminated mine water into VP3; and Levisa does not have the right under common law or the lease to grant anyone the right to dump contaminated mine water into VP3.
3. If the trial court found that Consolidation enjoys rights under the 1956 lease by virtue of agreements with Island Creek, that finding is erroneous because Island Creek could not, through contracts with third parties, increase its rights under the 1956 Lease; the purported agreements do not address water storage in the VP3 mine; those agreements are invalid, sham agreements between affiliated companies designed solely to circumvent the mineral owners’ rights; and Levisa is not a party to such agreements.
4. In denying Levisa’s request for injunctive relief, the trial court impermissibly relied upon matters not in evidence, including statements made by counsel for Consolidation in its opening statement and the trial court’s personal observations and opinions.
5. If the trial court found that Island Creek co-operates the Buchanan Mine with Consolidation and/or is discharging water into the VP3 mine, those findings are contrary to the evidence, which showed that Consolidation is the sole operator of the Buchanan Mine; Consolidation is the entity discharging the water; and Island Creek has no mining or other operations in Buchanan County, Virginia.
6. The trial court failed to consider and balance the parties’ equities by excluding evidence of the profitability of Consolidation’s Buchanan Mine.
7. The trial court erroneously treated Consolidation and Island Creek as the same entity with identical property and contractual rights where, according to the evidence, the defendant’s pleadings, and Virginia law, the two companies are separate and distinct entities.
8. The trial court erred in holding that Levisa requested the court to interpret the 1956 Lease; to the contrary, Consolidation raised the 1956 Lease provisions in support of its alleged right to dump water into the VP3 mine.
9. In ruling on Consolidation’s motion to strike at the close of Levisa’s evidence, the trial court impermissibly failed to view the evidence, and the inferences from that evidence, in the light most favorable to Levisa, the non-moving party.
10. The trial court erred in refusing to accept the affidavit of Timothy L. Hower into evidence because Virginia Code § 8.01-628 allows the court to consider affidavits on petitions for temporary injunctions and Mr. Hower had to be in Germany on the date of the hearing; and the trial court erred in refusing testimony about Consolidation’s profits from the Buchanan mine.
11. The trial court erred in denying injunctive relief by holding that Levisa has a full and adequate remedy at law on the basis that Levisa will be able to file suit when the coal becomes profitable to mine where (1) Levisa could be time-barred if suit is not filed within the five (5) year statute of limitations; (2) Levisa will have to prosecute a multiplicity of suits due to repeated and continuing harm from dumped mine water; (3) Virginia law provides for injunctive relief even if a plaintiff’s damages are nominal or speculative; and (4) any remedy Levisa has at law is not adequate to compensate Levisa and protect its property rights. Moreover, the court erred in imposing a requirement of “no adequate remedy at law” under the facts and law applicable to this case.
12. The trial court erred in denying injunctive relief by holding that Levisa is not suffering immediate and irreparable harm because: (1) the evidence showed that Levisa’s coal estate is being damaged; (2) the proffered affidavit of Timothy L. Hower showed that Levisa’s coalbed methane gas is being lost; (3) Consolidation is presently pumping mine water into VP3; (4) the amount of damages to Levisa’s coal cannot be accurately ascertained at this time; (5) Levisa cannot be fully and adequately compensated for its damages at law; and (6) Consolidation has destroyed Levisa’s property right to enter the passageways to inspect its coal. Moreover, the court erred in imposing a standard of irreparable harm, not recognized by this court.
Frequent filer gets sanctioned by Judge Moon
In Thurston v. Melton, Judge Moon of the W.D. Va. ordered Rule 11 sanctions against a pro se litigant, noting that the same plaintiff had previously filed 25 lawsuits, including 12 raising the same claims as in this case. The Court imposed sanctions of $500 and entered a pre-filing injunction against the plaintiff with respect to future cases.
Another methadone clinic zoning case
In A Helping Hand, LLC, v. Baltimore County, the Fourth Circuit in an opinion by Judge Motz, joined by Judge Duncan and District Judge Brinkema, held that a methadone treatment clinic that was the target of a zoning ordinance to bump it out of its present location could have a claim under the ADA, but was not entitled to judgment as a matter of law, and the judgment in its favor on its substantive due process claim would be affirmed.
One part that freaked me out was this: "it is well established that community views may be attributed to government bodies when the government acts in response to these views. See, e.g., City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 448 (1985); Marks v. City of Chesapeake, 883 F.2d 308, 311-12 (4th Cir. 1989) (citing numerous cases)."
So, the risk-adverse government body will not allow its actions to be tainted by receiving the views of "the community."
One part that freaked me out was this: "it is well established that community views may be attributed to government bodies when the government acts in response to these views. See, e.g., City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 448 (1985); Marks v. City of Chesapeake, 883 F.2d 308, 311-12 (4th Cir. 1989) (citing numerous cases)."
So, the risk-adverse government body will not allow its actions to be tainted by receiving the views of "the community."
Tuesday, February 12, 2008
Good riddance
Gene Nichol got the jump on the non-renewal of his employment and quit as president of the College of William & Mary, issuing this statement.
His self-righteous statement makes the case against himself - his regime will be remembered for the arrogance, intolerance, and petulance. He has acted foolishly, and come to a fool's end.
I liked him well enough back in my law school days, but he has made a hash of it as president of the College.
His self-righteous statement makes the case against himself - his regime will be remembered for the arrogance, intolerance, and petulance. He has acted foolishly, and come to a fool's end.
I liked him well enough back in my law school days, but he has made a hash of it as president of the College.
Monday, February 11, 2008
Ford's effective limitation on consequential damages means no federal jurisdiction for truck claim under $50,000
In Burtt v. Ford Motor Company, Senior Judge Kiser of the W.D. Va. granted the defendant's motion to dismiss, concluding that the plaintiff's claimed consequential damages were not recoverable and could not be counted towards the jurisdictional amount for a claim under the Magnuson-Moss Warranty Act.
Subscribe to:
Posts (Atom)