I love the PLI lawyer's toolbox, with the series of free articles it sends to my mailbox.
Today, the link is to an article on the fundamentals of section 1983 litigation, by Professor Martin Schwartz, the author of the section 1983 litigation treatise.
Tuesday, January 24, 2006
Monday, January 23, 2006
Loudoun County as a case study in growth
The Christian Science Monitor has this article about suburban growth in Loudoun County, Virginia, titled "In a fast-growing county, sprawl teaches hard lessons."
The article says in part:
"The growing pains of Loudoun, the nation's fastest-growing county in the past five years, not only has residents up in arms, but have also drawn the attention of land-use experts across the United States. That's because exurbs - suburbs at the fringes of metropolitan areas - are growing faster than any other kind of community, according to census data. While high-speed growth has transformed suburbia for decades, what is new - and worrying - is that it's now occurring in areas without the infrastructure or experience to deal with it, these experts say."
The article says in part:
"The growing pains of Loudoun, the nation's fastest-growing county in the past five years, not only has residents up in arms, but have also drawn the attention of land-use experts across the United States. That's because exurbs - suburbs at the fringes of metropolitan areas - are growing faster than any other kind of community, according to census data. While high-speed growth has transformed suburbia for decades, what is new - and worrying - is that it's now occurring in areas without the infrastructure or experience to deal with it, these experts say."
On opportunities for inexperienced lawyers in federal court
Today I noticed this order from the U.S. District Court for the District of Massachusetts, which says in part: "the undersigned District Judge and Magistrate Judge, as a matter of policy, strongly encourage the participation of relatively inexperienced attorneys in all court proceedings," but also that "all attorneys appearing in court are expected to be appropriately prepared, regardless of experience."
Judge Bork, Dahlia Lithwick, et al. at the VBA meeting
On Saturday morning, the VBA meeting in Williamsburg featured a high-powered panel discussion including Judge Robert Bork, Slate writer Dahlia Lithwick, a district judge from Massachusetts, some guy named Bert, and two ex-William & Mary Law professors, Gerhardt and Smolla.
The topic formally was the Separation of Powers, which centered on three ideas: (1) the confirmation process for Supreme Court nominees is largely unsatisfactory, with the system that encourages the nominee to make himself "as small a target as possible," (2) the Schiavo case represents the new extreme in how far the Congress goes to interfere with the judiciary, and (3) the Supreme Court, at least according to Judge Bork, routinely oversteps its bounds in decision-making about social issues.
In other kinds of cases, the judge noted, the litigants can expect a "square, lawyer-like response," but in cases involving social issues the Court goes too far.
Regarding the Alito hearings, Ms. Lithwick said: "watching smart people talk about trivial things badly is depressing."
Professor Gerhardt noted that he was one of the law professor witnesses at the Alito hearings. I saw him on the C-SPAN morning call-in show that same week, and among other things, he refused to say whether he was for or against Judge Alito's nomination. His non-committal response made me think of Professor Tribe's explanation to Senator Specter (contained in this part of the transcript) about how it was that he was not there to testify against Judge Alito:
"SPECTER: Professor Tribe, did you say you were not testifying against Judge Alito?
TRIBE: I am not recommending any action. I'm recommending that everyone -- because I think it's foolish. Nobody really cares what I think.
SPECTER: Aside from your recommendation, are you saying you're not testifying against Judge Alito?
TRIBE: I'm not testifying for or against Judge Alito. I'm explaining why I am very troubled by his views. Obviously, it follows from that that I would be hard pressed to recommend his confirmation."
Bert Brandenburg is executive director of Justice at Stake, which has a website including this list of blogs.
The topic formally was the Separation of Powers, which centered on three ideas: (1) the confirmation process for Supreme Court nominees is largely unsatisfactory, with the system that encourages the nominee to make himself "as small a target as possible," (2) the Schiavo case represents the new extreme in how far the Congress goes to interfere with the judiciary, and (3) the Supreme Court, at least according to Judge Bork, routinely oversteps its bounds in decision-making about social issues.
In other kinds of cases, the judge noted, the litigants can expect a "square, lawyer-like response," but in cases involving social issues the Court goes too far.
Regarding the Alito hearings, Ms. Lithwick said: "watching smart people talk about trivial things badly is depressing."
Professor Gerhardt noted that he was one of the law professor witnesses at the Alito hearings. I saw him on the C-SPAN morning call-in show that same week, and among other things, he refused to say whether he was for or against Judge Alito's nomination. His non-committal response made me think of Professor Tribe's explanation to Senator Specter (contained in this part of the transcript) about how it was that he was not there to testify against Judge Alito:
"SPECTER: Professor Tribe, did you say you were not testifying against Judge Alito?
TRIBE: I am not recommending any action. I'm recommending that everyone -- because I think it's foolish. Nobody really cares what I think.
SPECTER: Aside from your recommendation, are you saying you're not testifying against Judge Alito?
TRIBE: I'm not testifying for or against Judge Alito. I'm explaining why I am very troubled by his views. Obviously, it follows from that that I would be hard pressed to recommend his confirmation."
Bert Brandenburg is executive director of Justice at Stake, which has a website including this list of blogs.
Another swipe at peremptory strikes?
According to this article about the procedure in condemnation, one delegate has proposed a bill that would require the commissioners be selected "at random."
That sounds like what people say who oppose lawyer voir dire and peremptory strikes - just pick the jury at random, what could be more fair than that?
That sounds like what people say who oppose lawyer voir dire and peremptory strikes - just pick the jury at random, what could be more fair than that?
On Daubert in Virginia state court
On Friday and Saturday, I attended the Virginia Bar Association meeting in Williamsburg.
One session involved a discussion of whether and how Daubert applies in Virginia, and the thesis was put forward by the speakers, Judges Kelsey, Ney, and Baumgardner among them, that Virginia has the functional equivalent of Daubert in its case law applying the Virginia statute with the language of Rule 702, while avoiding the "Daubert Effect." The Daubert Effect was described as the paradox between the "liberalizing" intent of Rule 702 and the practical result that district courts in the exercise of their role as gatekeepers are keeping out more evidence, not less. Judge Ney was the trial judge in the case of John v. Im, in which the Virginia Supreme Court noted expressly that it was not making a decision about whether to adopt Daubert in applying Va. Code §§ 8.01-401.1 - 401.3: "We note, however, that we have not previously considered the question whether the Daubert analysis employed by the federal courts should be applied in our trial courts to determine the scientific reliability of expert testimony. Therefore, we leave this question open for future consideration."
As to the Daubert Effect, Judge Kelsey cited what I believe was this study available from the Federal Judicial Center, which notes in the summary: "Reporting both on their general experience with expert testimony and on their most recent civil trial involving such testimony, judges and attorneys indicated that judges were more likely in 1998 than in 1991 to scrutinize expert testimony before trial and then limit or exclude proffered testimony."
Michael Imprevento of the VTLA reported that there is a hearing today (Monday) in the General Assembly on this year's version of the Daubert bill, which I believe is H.B. 807, on which the VTLA and VADA take opposite views.
Judge Kelsey noted the Supreme Court's recent decision in the Lincoln Property v. Roche case, where the plaintiff's purpose in avoiding removal to federal court was acknowledged to be the difference in the standard for admissibility of expert testimony. Indeed, the District Court in the Roche case excluded the plaintiff's expert and entered summary judgment on the merits for lack of evidence of causation.
Judge Kelsey's introduction was so excellent I wish he would write it down and publish it in the VBA Journal.
One session involved a discussion of whether and how Daubert applies in Virginia, and the thesis was put forward by the speakers, Judges Kelsey, Ney, and Baumgardner among them, that Virginia has the functional equivalent of Daubert in its case law applying the Virginia statute with the language of Rule 702, while avoiding the "Daubert Effect." The Daubert Effect was described as the paradox between the "liberalizing" intent of Rule 702 and the practical result that district courts in the exercise of their role as gatekeepers are keeping out more evidence, not less. Judge Ney was the trial judge in the case of John v. Im, in which the Virginia Supreme Court noted expressly that it was not making a decision about whether to adopt Daubert in applying Va. Code §§ 8.01-401.1 - 401.3: "We note, however, that we have not previously considered the question whether the Daubert analysis employed by the federal courts should be applied in our trial courts to determine the scientific reliability of expert testimony. Therefore, we leave this question open for future consideration."
As to the Daubert Effect, Judge Kelsey cited what I believe was this study available from the Federal Judicial Center, which notes in the summary: "Reporting both on their general experience with expert testimony and on their most recent civil trial involving such testimony, judges and attorneys indicated that judges were more likely in 1998 than in 1991 to scrutinize expert testimony before trial and then limit or exclude proffered testimony."
Michael Imprevento of the VTLA reported that there is a hearing today (Monday) in the General Assembly on this year's version of the Daubert bill, which I believe is H.B. 807, on which the VTLA and VADA take opposite views.
Judge Kelsey noted the Supreme Court's recent decision in the Lincoln Property v. Roche case, where the plaintiff's purpose in avoiding removal to federal court was acknowledged to be the difference in the standard for admissibility of expert testimony. Indeed, the District Court in the Roche case excluded the plaintiff's expert and entered summary judgment on the merits for lack of evidence of causation.
Judge Kelsey's introduction was so excellent I wish he would write it down and publish it in the VBA Journal.
Wednesday, January 18, 2006
Write to your attorney general
In today's speech, the new Virginia Attorney General said, among other things:
"I will be seeking input from across the legal community. I want to hear the best ideas of the various bars, mandatory and voluntary, in the Commonwealth. I want to hear from the deans of our law schools. And I want to hear from the justices of our appellate courts. This is Virginia’s law firm, and I want Virginia’s legal community to, together, make it better and more effective."
"I will be seeking input from across the legal community. I want to hear the best ideas of the various bars, mandatory and voluntary, in the Commonwealth. I want to hear from the deans of our law schools. And I want to hear from the justices of our appellate courts. This is Virginia’s law firm, and I want Virginia’s legal community to, together, make it better and more effective."
On the racial makeup of juries in the W.D. Va.
In U.S. v. Drayton, the issue before Magistrate Judge Sargent was this:
"The defendant, who is black or African American, argues that, cognizant of a great disparity in the racial demographics of the Abingdon and Roanoke Divisions, the government intentionally brought this matter in the Abingdon Division in an effort to exclude blacks or African Americans from the jury pool and, thus, from the jury itself."
The motion was denied, since the defendant could not show intent to discriminate.
Once in my life I have exercised a peremptory strike against a black member of the jury pool, after he had tried every way in the world to get out of the case during voir dire, stating in fairly stark terms that he was biased in favor of the other side. The judge would not strike him for cause, but opposing counsel laughed later, "I think your strikes are safe from constitutional challenge."
"The defendant, who is black or African American, argues that, cognizant of a great disparity in the racial demographics of the Abingdon and Roanoke Divisions, the government intentionally brought this matter in the Abingdon Division in an effort to exclude blacks or African Americans from the jury pool and, thus, from the jury itself."
The motion was denied, since the defendant could not show intent to discriminate.
Once in my life I have exercised a peremptory strike against a black member of the jury pool, after he had tried every way in the world to get out of the case during voir dire, stating in fairly stark terms that he was biased in favor of the other side. The judge would not strike him for cause, but opposing counsel laughed later, "I think your strikes are safe from constitutional challenge."
The next big Southwest Virginia DNA case
The Roanoke paper reports here that DNA testing is being used to nail the suspect in the Town of Appalachia voting fraud case, on which Tim McAfee is the special prosecutor.
The plan is to see whose saliva was used on the envelope used to send in an absentee ballot.
In the office here, I discovered some years ago that we have a little gadget with a sponge on it, sort of like this, to be used in place of licking envelopes. I had not previously thought of it as as mechanism for avoiding identification - sort of an envelope glue anonymizer.
The plan is to see whose saliva was used on the envelope used to send in an absentee ballot.
In the office here, I discovered some years ago that we have a little gadget with a sponge on it, sort of like this, to be used in place of licking envelopes. I had not previously thought of it as as mechanism for avoiding identification - sort of an envelope glue anonymizer.
On the passing of my former client Buck the dog
I am informed that my sister's dog Buck was struck by a car and died a few days ago. He was 14, almost as old as our dog Chrissy, older than Joan's younger two children.
When Joan lived in Washington County, a neighboring farmer accused Buck and one of their other dogs of killing a cow. Charges were brought under the county dog ordinance, and I went to "dog court" (the docket for county cases, prosecuted by the county attorney). In theory, the stakes were high - a dog found to have destroyed livestock could be ordered killed or banished from the County.
We settled with the farmer, but I was more than willing to vouch for the sterling character, reputation, and demeanor of Buck, who was just about as likely to kill a cow as I would be.
I have no picture of him, but the image I have is of him walking around Joan's house, and when I asked where he was going, Joan's explanation was something like, "oh, he's afraid there might be some cats in there, so he's going somewhere else."
When Joan lived in Washington County, a neighboring farmer accused Buck and one of their other dogs of killing a cow. Charges were brought under the county dog ordinance, and I went to "dog court" (the docket for county cases, prosecuted by the county attorney). In theory, the stakes were high - a dog found to have destroyed livestock could be ordered killed or banished from the County.
We settled with the farmer, but I was more than willing to vouch for the sterling character, reputation, and demeanor of Buck, who was just about as likely to kill a cow as I would be.
I have no picture of him, but the image I have is of him walking around Joan's house, and when I asked where he was going, Joan's explanation was something like, "oh, he's afraid there might be some cats in there, so he's going somewhere else."
Tuesday, January 17, 2006
Know thyself
So said Thales, or perhaps it was the Oracle at Delphi.
In this Boston Herald report, Senator Edward Kennedy of Massachusetts acknowledge that "he himself probably couldn’t pass Judiciary Committee muster," at the same time he vowed to dissociate himself from a club that discriminates against women.
In this Boston Herald report, Senator Edward Kennedy of Massachusetts acknowledge that "he himself probably couldn’t pass Judiciary Committee muster," at the same time he vowed to dissociate himself from a club that discriminates against women.
Monday, January 16, 2006
That Civil War "public" documents case
S.C. Appellate Blog posts here and Southern Appeal posts here on the case of the Confederate-era documents. A bankruptcy court ruled that they were "public documents," but now the district court has ruled that they aren't, and so the State of South Carolina may have to appeal the case to the Fourth Circuit.
Sunday, January 15, 2006
Coal vs. gas in West Virginia
Sunday's Charleston Gazette had this very interesting article titled "Turf war shaping up between coal, gas" on disputes between coal interests and gas interests in West Virginia.
On Philip Hirschkop
Law.com has this wild profile of Virginia lawyer Philip Hirschkop, retiring at age 69, and most famous for his role in the Loving case.
The article says in part:
"In one six-year span, 17 disciplinary complaints were brought against him at the Virginia State Bar -- a distinction Hirschkop bears proudly. The complaints, he says, were 'never for screwing a client -- only for making public statements' about pending litigation."
The articles also says:
"He also donned a 10-gallon hat and cowboy boots to win the acquittal of Texas oil magnates Nelson Bunker Hunt and W. Herbert Hunt in a federal wiretapping case.
The decision to represent the archconservative oilmen was a tough one for Hirschkop, says John Kenneth Zwerling, an Alexandria lawyer whose wedding Hirschkop had officiated at while wearing a coonskin cap. 'The [Hunt brothers] bought him a membership in the John Birch Society,' he says. 'And he bought them a membership in the ACLU.'
The Hunt brothers and other famous clients helped provide Hirschkop with the kind of money a radical lawyer could only dream of, especially 30 years ago. In his best years, Hirschkop says, he's earned well above $1 million."
The article says in part:
"In one six-year span, 17 disciplinary complaints were brought against him at the Virginia State Bar -- a distinction Hirschkop bears proudly. The complaints, he says, were 'never for screwing a client -- only for making public statements' about pending litigation."
The articles also says:
"He also donned a 10-gallon hat and cowboy boots to win the acquittal of Texas oil magnates Nelson Bunker Hunt and W. Herbert Hunt in a federal wiretapping case.
The decision to represent the archconservative oilmen was a tough one for Hirschkop, says John Kenneth Zwerling, an Alexandria lawyer whose wedding Hirschkop had officiated at while wearing a coonskin cap. 'The [Hunt brothers] bought him a membership in the John Birch Society,' he says. 'And he bought them a membership in the ACLU.'
The Hunt brothers and other famous clients helped provide Hirschkop with the kind of money a radical lawyer could only dream of, especially 30 years ago. In his best years, Hirschkop says, he's earned well above $1 million."
More on Billy Wagner and Southwest Virginia
With the move of Southwest Virginian Billy Wagner to New York City, you see more articles like this one from the New York Daily News, which begins:
"Billy Wagner is from a lot of places. You are on the road to one of them, in southwest Virginia, where breathtaking views and crushing poverty are in a dead heat, and where Wagner once was bounced around as if he were the family Spaldeen.
You leave the town of Tazewell and turn left at Frog Level, and pass through Thompson Valley, not far from Criggers and Pucketts Store. You climb up mountains, and switchback your way down the backside. You ride by a field with scores of brightly colored barrels, each with a rooster on top, a cock-fighting breeding camp. You go alongside a meandering creek, and see red dirt and grazing cows in sloping valleys.
Seventeen miles beyond Frog Level, you finally get to Tannersville, a hamlet of 392 people and six roads, a dozen miles from the nearest supermarket. Ten people come into the post office, and that's on a busy day, says Evelyn Barton, the postmaster. A faded wooden sign by the volunteer fire house welcomes you to 'The Home of Billy Wagner.' In Tazewell, where Wagner starred in football and baseball for Tazewell High, a fancier sign also claims the town as his home."
"Billy Wagner is from a lot of places. You are on the road to one of them, in southwest Virginia, where breathtaking views and crushing poverty are in a dead heat, and where Wagner once was bounced around as if he were the family Spaldeen.
You leave the town of Tazewell and turn left at Frog Level, and pass through Thompson Valley, not far from Criggers and Pucketts Store. You climb up mountains, and switchback your way down the backside. You ride by a field with scores of brightly colored barrels, each with a rooster on top, a cock-fighting breeding camp. You go alongside a meandering creek, and see red dirt and grazing cows in sloping valleys.
Seventeen miles beyond Frog Level, you finally get to Tannersville, a hamlet of 392 people and six roads, a dozen miles from the nearest supermarket. Ten people come into the post office, and that's on a busy day, says Evelyn Barton, the postmaster. A faded wooden sign by the volunteer fire house welcomes you to 'The Home of Billy Wagner.' In Tazewell, where Wagner starred in football and baseball for Tazewell High, a fancier sign also claims the town as his home."
A commentary on the Coleman case
Kerry Dougherty has this harsh commentary in Saturday's Norfolk paper titled Supporters of dead killer can eat crow at DNA result.
Latest commentary from Judge Humphrey
Virginia Court of Appeals Judge Robert Humphrey has this commentary titled Colonial Vestige: Anglo-American System Requires Competent Judges, Lawyers, Juries in today's Richmond paper.
He says in part:
"Judges must be selected and retained based on their knowledge of the law and an even-handed demeanor in enforcing it; the bench and bar must insist that lawyers conduct themselves professionally and quickly and firmly sanction those who do not; and, finally, citizens must be willing to take their obligation to serve on juries seriously. Our society depends on these things because the only alternatives to a vibrant and effective court system are anarchy and violence."
He says in part:
"Judges must be selected and retained based on their knowledge of the law and an even-handed demeanor in enforcing it; the bench and bar must insist that lawyers conduct themselves professionally and quickly and firmly sanction those who do not; and, finally, citizens must be willing to take their obligation to serve on juries seriously. Our society depends on these things because the only alternatives to a vibrant and effective court system are anarchy and violence."
On the hazards of a coal miner's work
The Media General papers' Rex Bowman penned this article titled Miners aware of job's dangers, with interviews of SW Virginia coal miners on the hazards of their profession.
Lately it seems that I talk to people in and around the coal business almost every day. Each of them has recalled underground accidents that happened to them or people they know.
Here is a link to a paper from 1987 titled "A Hundred Years of Mining Explosions in Southwest Virginia."
Lately it seems that I talk to people in and around the coal business almost every day. Each of them has recalled underground accidents that happened to them or people they know.
Here is a link to a paper from 1987 titled "A Hundred Years of Mining Explosions in Southwest Virginia."
Saturday, January 14, 2006
From the way, wayback machine - the next-to-last governor's inauguration in Williamsburg
Charlottesville's Bob Gibson has this timely report on the subdued circumstances of the swearing-in of Thomas Jefferson as the Governor of Virginia in 1779.
Friday's opinions from the Virginia Supreme Court
To get into the latest round of Virginia Supreme Court decisions, start with the court's synopsis page and Steve Emmert's website.
I must confess that the most interesting case to me so far is the mechanic's lien issue in Britt Construction, Inc. v. Magazzine Clean, LLC, where the Court held Va. Code § 43-4 "requires that a general contractor, as a condition of perfecting a mechanic’s lien, contemporaneously file with the memorandum of lien a 'certification' that a copy of the memorandum has been mailed to the property owner."
One of the interesting things about is to eliminate some of the high-stakes ambiguity about how to perfect a mechanic's lien, the General Assembly has codified a "safe harbor" form, which was was nonetheless relegated to this footnote in the Court's opinion:
"The absence of any reference to a certification of mailing in the 'safe harbor' form of Code § 43-5 does not affect our analysis of Code § 43-4. That form addresses only the sufficiency of a memorandum of lien and affidavit filed under Code § 43-4. Also, the 'safe harbor' forms of Code §§ 43-8 and –10 are not relevant to the issue before us because they pertain to subcontractors and to persons furnishing labor or materials to a subcontractor and, thus, do not affect the unambiguous requirements imposed on a general contractor by Code § 43-4."
Unless my memory is mistaken, I've seen a circuit court rule the other way on the issue of this appeal.
I must confess that the most interesting case to me so far is the mechanic's lien issue in Britt Construction, Inc. v. Magazzine Clean, LLC, where the Court held Va. Code § 43-4 "requires that a general contractor, as a condition of perfecting a mechanic’s lien, contemporaneously file with the memorandum of lien a 'certification' that a copy of the memorandum has been mailed to the property owner."
One of the interesting things about is to eliminate some of the high-stakes ambiguity about how to perfect a mechanic's lien, the General Assembly has codified a "safe harbor" form, which was was nonetheless relegated to this footnote in the Court's opinion:
"The absence of any reference to a certification of mailing in the 'safe harbor' form of Code § 43-5 does not affect our analysis of Code § 43-4. That form addresses only the sufficiency of a memorandum of lien and affidavit filed under Code § 43-4. Also, the 'safe harbor' forms of Code §§ 43-8 and –10 are not relevant to the issue before us because they pertain to subcontractors and to persons furnishing labor or materials to a subcontractor and, thus, do not affect the unambiguous requirements imposed on a general contractor by Code § 43-4."
Unless my memory is mistaken, I've seen a circuit court rule the other way on the issue of this appeal.
Whoa, the President keeping campaign promises, high-powered nominees turning out to be high-powered
Via How Appealing, this Sunday NY Times article titled Democrats See Wide Bush Stamp on Court System apparently says that some Democrats are appalled that President Bush is following through on his campaign pledge to nominate conservaties to the federal bench, and that the two Supreme Court nominees have known their stuff too well to be affected by the sometimes less-than-spirited, sometimes mean-spirited cross-examination by the Democrats on the Senate Judiciary Committee.
My two impressions of the Alito hearings, of which I watched and read a great deal, were these: (1) Alito is outstanding in every way, yet another example of a system that somehow produces good outcomes in spite of itself, and (2) the Democratic Senators were not doing a very good job. I mean, that CAP stuff was nonsense, the Vanguard stuff was nonsense, the 1980s memos were nonsense, and for every Alito case or Alito opinion the Democrats cited, the Republicans could cite that many more.
The only point that any of them made that made any sense to me is how do Alito or Roberts decide which areas of the law are settled and which are not - although not because I agree with the Democrats that there are more settled areas, but because I suspect there are fewer - and everyone knows it. If Professors Tribe and Chemerinsky (two names at random) were on the Supreme Court, some precedents would fall, as surely as some precedents may fall with Sam Alito instead of Sandra Day O'Connor on the Supreme Court.
My favorite part of the hearing was the testimony of the Third Circuit judges, particularly Judge Aldisert, at age 86. I suppose but for the fickle pick of fate, he might have been on the Supreme Court, if say President Johnson had been re-elected - which gets back to the Times article, which concludes with the point that some Democrats acknowledge the only thing to do to change the course of events is to win elections, as their strategems to gum up the nomination process has not worked.
My two impressions of the Alito hearings, of which I watched and read a great deal, were these: (1) Alito is outstanding in every way, yet another example of a system that somehow produces good outcomes in spite of itself, and (2) the Democratic Senators were not doing a very good job. I mean, that CAP stuff was nonsense, the Vanguard stuff was nonsense, the 1980s memos were nonsense, and for every Alito case or Alito opinion the Democrats cited, the Republicans could cite that many more.
The only point that any of them made that made any sense to me is how do Alito or Roberts decide which areas of the law are settled and which are not - although not because I agree with the Democrats that there are more settled areas, but because I suspect there are fewer - and everyone knows it. If Professors Tribe and Chemerinsky (two names at random) were on the Supreme Court, some precedents would fall, as surely as some precedents may fall with Sam Alito instead of Sandra Day O'Connor on the Supreme Court.
My favorite part of the hearing was the testimony of the Third Circuit judges, particularly Judge Aldisert, at age 86. I suppose but for the fickle pick of fate, he might have been on the Supreme Court, if say President Johnson had been re-elected - which gets back to the Times article, which concludes with the point that some Democrats acknowledge the only thing to do to change the course of events is to win elections, as their strategems to gum up the nomination process has not worked.
Fourth Circuit puts the brakes on district court sentencing discretion
This post from Decision of the Day begins:
"Today, the Fourth Circuit remands a case in which District Judge Brinkema [of the E.D. Va.] sentenced a drug defendant to the eight months she would have received under state law as opposed to the 46-57 months recommended by the federal guidelines. The Court takes issue with the judge’s failure to consider the risk of disparity in sentences among federal defendants, most of whom would not be so lucky as to have a Judge Brinkema presiding over their criminal trials. The court also holds that it is unreasonable to consider state sentences in determining a federal sentence except in unusual circumstances."
Professor Berman has this interesting post about the case, and he wrote: "I've now had a chance to read Clark closely, and it is first-rate work by all the judges. Even Judge Luttig's opinion, which is most emphatic about the error in considering state sentencing practices, includes the important and valuable caveat that 'the consideration of state sentencing practices is not necessarily impermissible per se.'"
The case was U.S. v. Clark, and each member of the panel of Judges Luttig, Motz, and King wrote separate opinions.
In recent years, I've heard a lot about the perceived sentencing disparity between the federal courts and Virginia state court. Someone is alleged to have once famously declared that for possession of OxyContin, in federal court a defendant gets four years in the penitentiary, where as in state court for the same offense, the defendant would get probation and signed up for food stamps. The vaunted gun offense program in Richmond, Project Exile, allowed the City to make use of the stiffer sentences in federal court.
I note also that my good friend Chad Dotson, the Commonwealth's attorney in Wise County, was just before Christmas made a special assistant U.S. attorney, and I suspect this was done primarily for the very purpose of allowing him to bring to bear the threat of federal sentencing to his dealings with criminal defendants in Wise County.
"Today, the Fourth Circuit remands a case in which District Judge Brinkema [of the E.D. Va.] sentenced a drug defendant to the eight months she would have received under state law as opposed to the 46-57 months recommended by the federal guidelines. The Court takes issue with the judge’s failure to consider the risk of disparity in sentences among federal defendants, most of whom would not be so lucky as to have a Judge Brinkema presiding over their criminal trials. The court also holds that it is unreasonable to consider state sentences in determining a federal sentence except in unusual circumstances."
Professor Berman has this interesting post about the case, and he wrote: "I've now had a chance to read Clark closely, and it is first-rate work by all the judges. Even Judge Luttig's opinion, which is most emphatic about the error in considering state sentencing practices, includes the important and valuable caveat that 'the consideration of state sentencing practices is not necessarily impermissible per se.'"
The case was U.S. v. Clark, and each member of the panel of Judges Luttig, Motz, and King wrote separate opinions.
In recent years, I've heard a lot about the perceived sentencing disparity between the federal courts and Virginia state court. Someone is alleged to have once famously declared that for possession of OxyContin, in federal court a defendant gets four years in the penitentiary, where as in state court for the same offense, the defendant would get probation and signed up for food stamps. The vaunted gun offense program in Richmond, Project Exile, allowed the City to make use of the stiffer sentences in federal court.
I note also that my good friend Chad Dotson, the Commonwealth's attorney in Wise County, was just before Christmas made a special assistant U.S. attorney, and I suspect this was done primarily for the very purpose of allowing him to bring to bear the threat of federal sentencing to his dealings with criminal defendants in Wise County.
No constitutional claims against employees of prison operated by private company for federal government
In Holly v. Scott, the Fourth Circuit in an opinion by Judge Wilkinson, joined by District Judge Harwell, with Judge Motz concurring in the judgment, held that there can be no Bivens claim against the employees of a federal prison operated by a private company.
The opinion explains that the plaintiff "is a federal inmate at Rivers Correctional Institution, a privately run facility in North Carolina operated by the GEO Group, Inc. under contract with the federal Bureau of Prisons."
Judge Wilkinson notes the reluctance of the Supreme Court to expand the judge-made concept of a Bivens claim: "The Court’s repeated reluctance to extend Bivens is not without good reason. A Bivens cause of action is implied without any express congressional authority whatsoever. This is hardly the preferred course. The Supreme Court has 'recently and repeatedly said that a
decision to create a private right of action is one better left to legislative judgment in the great majority of cases.'" He adds: "As the last twenty-five years of Bivens jurisprudence demonstrate, so well-suited is Congress to determine the policies pertaining to a remedial scheme that neither the absence nor the incompleteness of such a scheme represents an invitation for a court to step in to correct what it may perceive as an injustice toward an individual litigant."
Judge Wilkinson found two factors that justified denial of a Bivens claim against the employees of the private prison: "First, defendants are private individuals, not government actors. Second, Holly has an adequate remedy against defendants for his alleged injuries under state law."
Judge Motz in her concurring opinion maintains that private contractors providing medical care in state prisons have been held to be state actors for many years, but nevertheless agrees that there is no Bivens claim because the plaintiff has a state tort law remedy against the defendants.
Mike at Crime & Federalism thinks the Supreme Court's Malesko decision contains plenty of cues which Judge Wilkinson chose to ignore, and links to these post from All Deliberate Speed and Decision of the Day.
The opinion explains that the plaintiff "is a federal inmate at Rivers Correctional Institution, a privately run facility in North Carolina operated by the GEO Group, Inc. under contract with the federal Bureau of Prisons."
Judge Wilkinson notes the reluctance of the Supreme Court to expand the judge-made concept of a Bivens claim: "The Court’s repeated reluctance to extend Bivens is not without good reason. A Bivens cause of action is implied without any express congressional authority whatsoever. This is hardly the preferred course. The Supreme Court has 'recently and repeatedly said that a
decision to create a private right of action is one better left to legislative judgment in the great majority of cases.'" He adds: "As the last twenty-five years of Bivens jurisprudence demonstrate, so well-suited is Congress to determine the policies pertaining to a remedial scheme that neither the absence nor the incompleteness of such a scheme represents an invitation for a court to step in to correct what it may perceive as an injustice toward an individual litigant."
Judge Wilkinson found two factors that justified denial of a Bivens claim against the employees of the private prison: "First, defendants are private individuals, not government actors. Second, Holly has an adequate remedy against defendants for his alleged injuries under state law."
Judge Motz in her concurring opinion maintains that private contractors providing medical care in state prisons have been held to be state actors for many years, but nevertheless agrees that there is no Bivens claim because the plaintiff has a state tort law remedy against the defendants.
Mike at Crime & Federalism thinks the Supreme Court's Malesko decision contains plenty of cues which Judge Wilkinson chose to ignore, and links to these post from All Deliberate Speed and Decision of the Day.
Gov. Warner and the politics of crime
In this Talkleft post, Gov. Warner: Critics Claim He Moved Left on Crime Issues, there is a link to this NY Times article, "Governor Finds New Middle Ground in Death Penalty Debate."
The Times article says:
"But in four years as governor, Mr. Warner has incrementally and with little fanfare established groundbreaking policies on the use of DNA testing to confirm, or challenge, criminal convictions, many of them in death penalty cases. Last week, he became the first governor to order a DNA test involving a man who had already been executed."
The Talkleft writer says the idea that Governor Warner has made progressive use of DNA to get votes is laughable: "Can anyone name a politician who ran for high national office on a liberal crime platform?"
Reading all this gave me cause to recollect this Will Vehrs post, with the comments, mostly saying that having the Coleman DNA tested was good politics, except perhaps - as Jerry postulates, with the victim's family.
The Times article says:
"But in four years as governor, Mr. Warner has incrementally and with little fanfare established groundbreaking policies on the use of DNA testing to confirm, or challenge, criminal convictions, many of them in death penalty cases. Last week, he became the first governor to order a DNA test involving a man who had already been executed."
The Talkleft writer says the idea that Governor Warner has made progressive use of DNA to get votes is laughable: "Can anyone name a politician who ran for high national office on a liberal crime platform?"
Reading all this gave me cause to recollect this Will Vehrs post, with the comments, mostly saying that having the Coleman DNA tested was good politics, except perhaps - as Jerry postulates, with the victim's family.
We really want something reversed, by thunder, and we're not saying what
The best bit of this Appellate Law & Practice post says:
"The plaintiffs also had a due process claim, which was dismissed, and their 'appellate brief thunders that this ruling should be reversed.' But, it seems they don’t actually explain what their argument is. And, the court slams the lawyers by saying, 'Their appellate brief thunders that this ruling should be reversed — but that remonstrance, twice repeated, is unaccompanied by any vestige of developed argumentation. Gauzy generalizations are manifestly insufficient to preserve an issue for appellate review.' (Of course, judges often indulge in generalizations.)"
The post is about an opinion from the First Circuit, in Torres-Arroyo v. Rullan, worth reading in and of itself, and not only for its use of the term, "sockdolager."
"The plaintiffs also had a due process claim, which was dismissed, and their 'appellate brief thunders that this ruling should be reversed.' But, it seems they don’t actually explain what their argument is. And, the court slams the lawyers by saying, 'Their appellate brief thunders that this ruling should be reversed — but that remonstrance, twice repeated, is unaccompanied by any vestige of developed argumentation. Gauzy generalizations are manifestly insufficient to preserve an issue for appellate review.' (Of course, judges often indulge in generalizations.)"
The post is about an opinion from the First Circuit, in Torres-Arroyo v. Rullan, worth reading in and of itself, and not only for its use of the term, "sockdolager."
Friday, January 13, 2006
Paraskevidekatriaphobia
This article ponders the origins of the phobia of Friday the 13th, and includes a link to this abstract of a study of the medical effects of Friday the 13th.
Friday the 13th was lucky for that other Steve Miner, the film director.
Friday the 13th was lucky for that other Steve Miner, the film director.
Some posts on the Coleman case
Milbarge at BTQ says:
"Cases like Coleman's and other [?] recent exonerations are just clearing the decks of old cases where the trial predated modern testing. In the present, and future, testing will happen pre-trial."
Professor Berman says:
"Though this interesting development is unlikely to alter the death penalty debate as much as if the DNA test came out the other way, I suspect this finding will be rightly used by death penalty supporters to highlight that death row defendants' claims of innocence must always be examined with skepticism."
Ronald at reason.com says:
"The good news is that Virginia did not execute an innocent man."
The Washington Post article quotes one law professor as saying:
"The opportunity to bring new people into the abolitionist movement has been lost."
"Cases like Coleman's and other [?] recent exonerations are just clearing the decks of old cases where the trial predated modern testing. In the present, and future, testing will happen pre-trial."
Professor Berman says:
"Though this interesting development is unlikely to alter the death penalty debate as much as if the DNA test came out the other way, I suspect this finding will be rightly used by death penalty supporters to highlight that death row defendants' claims of innocence must always be examined with skepticism."
Ronald at reason.com says:
"The good news is that Virginia did not execute an innocent man."
The Washington Post article quotes one law professor as saying:
"The opportunity to bring new people into the abolitionist movement has been lost."
Lawyer fined for bumping and shoving opposing counsel
The Norfolk paper reports here than an 81 year-old lawyer was fined $250 for contempt of court on account of his bumping and shoving opposing counsel in court during a sidebar conference in a will contest in Virginia Beach circuit court.
Thursday, January 12, 2006
Georgia Tech AD diagnosed with Crohn's disease, quits work
It is reported here and elsewhere that Dave Braine, the longtime athletic director at Georgia Tech and earlier at Virginia Tech, has quit his job because of Crohn's disease.
Besides Va. Tech, Braine's background includes stints at VMI, Richmond, and Virginia:
"After teaching and coaching at Manatee High School in Bradenton, Fla., he joined the Virginia Military Institute football staff as a freshman coach in the spring of 1967, kicking off his long career in collegiate athletics. Later he coached at Richmond from 1971-73, highlighted by the Spiders' 1971 Southern Conference title and Tangerine Bowl berth. After two seasons as an assistant coach at Tech, Braine moved to Virginia as administrative assistant and secondary coach under Dick Bestwick in 1976. In 1978, he became assistant athletic director at Virginia."
Besides Va. Tech, Braine's background includes stints at VMI, Richmond, and Virginia:
"After teaching and coaching at Manatee High School in Bradenton, Fla., he joined the Virginia Military Institute football staff as a freshman coach in the spring of 1967, kicking off his long career in collegiate athletics. Later he coached at Richmond from 1971-73, highlighted by the Spiders' 1971 Southern Conference title and Tangerine Bowl berth. After two seasons as an assistant coach at Tech, Braine moved to Virginia as administrative assistant and secondary coach under Dick Bestwick in 1976. In 1978, he became assistant athletic director at Virginia."
Prayer lawsuit filed against Fredericksburg
The Fredericksburg paper reports that a city council member has sued the city over its new prayer policy.
The story begins:
"Fredericksburg City Councilman Hashmel Turner has filed suit against his fellow council members, saying that the city's new prayer policy violates his constitutional rights."
The story begins:
"Fredericksburg City Councilman Hashmel Turner has filed suit against his fellow council members, saying that the city's new prayer policy violates his constitutional rights."
DNA results says Coleman was almost certainly guilty
The Richmond paper has this report.
Governor Warner's website has this link to the report from the lab in Canada, along with this statement from the Governor.
UPDATE: TalkLeft has this post, with statements from Peter Neufeld and Amnesty International.
Governor Warner's website has this link to the report from the lab in Canada, along with this statement from the Governor.
UPDATE: TalkLeft has this post, with statements from Peter Neufeld and Amnesty International.
Wednesday, January 11, 2006
Next big tort class - people who ride in cabs
Scientific American reports here:
"When strolling alongside a busy city street on a smoggy summer day, it may seem as if riding in one of the taxis streaming by might provide a respite from the exhaust-choked air. Instead new research from London reveals that taxi rides take a toll on your lungs as well as your wallet.
In fact, taxi cabins expose drivers and riders to more air pollution than any other form of transportation, according to the results of a survey by Surbjit Kaur and her colleagues at Imperial College London."
"When strolling alongside a busy city street on a smoggy summer day, it may seem as if riding in one of the taxis streaming by might provide a respite from the exhaust-choked air. Instead new research from London reveals that taxi rides take a toll on your lungs as well as your wallet.
In fact, taxi cabins expose drivers and riders to more air pollution than any other form of transportation, according to the results of a survey by Surbjit Kaur and her colleagues at Imperial College London."
What PACER ought to be like
LawPundit says the welcoming screen to the federal court's online system should be like this:
"Welcome to ECF/PACER, the electronic database website of the federal U.S. Courts. According to Freedom of Information principles, all citizens are entitled to free and easy access to government documents. This website is designed to provide that service for the federal US courts. Thank you for visiting and come again."
"Welcome to ECF/PACER, the electronic database website of the federal U.S. Courts. According to Freedom of Information principles, all citizens are entitled to free and easy access to government documents. This website is designed to provide that service for the federal US courts. Thank you for visiting and come again."
Lawyer's end-run around state court subpoena for testimony about client in case of missing child
In State of Ohio v. Doe, the Sixth Circuit ruled against an Ohio lawyer who had removed to federal court the matter of a state court subpoena that would compel her her to give testimony about what a former client, now deceased, told her about the disappearance of a young girl. The Court concluded that the case should have been remanded to state court.
The Court said:
"Having had her day in court, Lewis seeks to profit from outrunning her first state court contempt order by raising federal arguments that she failed to raise when she had the chance. Lewis 'has experimented with the state courts and been beaten, and now seeks a different forum.' Rosenthal, 148 U.S. at 147. Section 1442(a) of the removal statutes does not confer federal jurisdiction for such purposes."
The Court said:
"Having had her day in court, Lewis seeks to profit from outrunning her first state court contempt order by raising federal arguments that she failed to raise when she had the chance. Lewis 'has experimented with the state courts and been beaten, and now seeks a different forum.' Rosenthal, 148 U.S. at 147. Section 1442(a) of the removal statutes does not confer federal jurisdiction for such purposes."
On the passing of the Patrick County pig once referred to as a legend
Rex Bowman of the Richmond paper has this story on the life and times of Oinky Doodle, gone but not forgotten.
This must-read begins:
"Oinky Doodle, Patrick County's most famous junkyard hog, known for his gluttonous love of Tootsie Rolls, Coca-Cola and peanuts, is dead. The big pig was 12.
He also ate York peppermint patties."
Of like cultural and literary merit is this account of Oinky Doodle's owner, who dreams of having Burt Reynolds play him in the movie.
This must-read begins:
"Oinky Doodle, Patrick County's most famous junkyard hog, known for his gluttonous love of Tootsie Rolls, Coca-Cola and peanuts, is dead. The big pig was 12.
He also ate York peppermint patties."
Of like cultural and literary merit is this account of Oinky Doodle's owner, who dreams of having Burt Reynolds play him in the movie.
Tuesday, January 10, 2006
Who needs Alito when you could have a robot
Via Slashdot, this article describes an automated, online dispute resolution system being expanded in Europe.
More on Governor Warner and the voting rights of convicted felons in Virginia
The New York Times has this editorial, which begins:
"In his few remaining days in office, Gov. Mark Warner of Virginia has an opportunity to strike a blow for democracy with the stroke of a pen by restoring the right to vote to more than 240,000 felons who are now out of prison. This is manifestly the right thing to do. Mr. Warner, who is likely to be a presidential candidate in 2008, should not let political considerations deter him because taking a principled stand in favor of ex-prisoners' voting rights would only augment his reputation."
"In his few remaining days in office, Gov. Mark Warner of Virginia has an opportunity to strike a blow for democracy with the stroke of a pen by restoring the right to vote to more than 240,000 felons who are now out of prison. This is manifestly the right thing to do. Mr. Warner, who is likely to be a presidential candidate in 2008, should not let political considerations deter him because taking a principled stand in favor of ex-prisoners' voting rights would only augment his reputation."
Monday, January 09, 2006
Must be the blog
It says here that Florida appellate blogger Matt just ran his first marathon and got married.
Well done.
Well done.
I'd like to thank the Academy, or at least GovtCheese
It says here that we got win No. 6.33 in the 34th Commonwealth Conservative caption contest, which also means that we have lost the other 27.66.
It takes six wins to be bowl eligible, but it takes 20 wins to become a member of the World Golf Hall of Fame.
It takes six wins to be bowl eligible, but it takes 20 wins to become a member of the World Golf Hall of Fame.
The daily rapsheet updated on Vick
I'm reading that Marcus Vick was arrested again, this time on a charge of brandishing a firearm at a Suffolk McDonald's sometime last night.
For the latest, try this Google news search.
For the latest, try this Google news search.
On John Tucker and the Coleman case
The Chicago Sun-Times has this short interview with John Tucker about the latest developments in the Roger Keith Coleman case. Tucker wrote the 1997 book about the case. He lives in Virginia with his wife, William & Mary law professor Jayne Barnard.
Sunday, January 08, 2006
What he learned at MIT
There's some lasting truth in what this guy learned at MIT - including, among other things:
"Don't work with anyone else if you don't need to." Well, I work with others whenever I can, but as a related principle, even when you work with others, you're still responsible. The lawyer who blames another lawyer or some non-lawyer for anything only makes himself look bad.
"Trying to learn everything from scratch is a loser's game - take advantage of available literature." I'm looking for lawyering ideas to steal every day.
"Keep the design as simple as possible." The whole point of lawyering is communication, with simplicity as the eternal goal.
"I noticed the students who had perfect grade points weren't the whiz-bang smartest - they were the ones who kept regular schedules and maintained discipline, closing their dorm room doors to study, eating regular meals and going to sleep at midnight." The lawyers who take all the money have both discipline and whiz-bang. The ones with neither are not long for the profession.
"Even when your expectations are low (and to be pragmatic and realistic, they often have to be), maintain high standards." Other lawyers, the clients, and the judges are always keeping score, whether you win or lose.
"So when I join a company and hear how smart the people there are - I'm not impressed. Unless they're also good people to work with. That's a lot harder to find." The difference between the best and the worst lawyers I've met has more to do with character and discipline than smarts. Everyone I met in college and in law school was smart.
"You can have smart people, lots of money and the latest technology, but your execution can still suck." See all the above.
"Don't trust politicians." At the University, the self-promoting student government types were called "politicos." Within the profession, I read about lawyer politicos, but I am unaware of many around here. Perhaps the local ones have no use for me.
"Don't work with anyone else if you don't need to." Well, I work with others whenever I can, but as a related principle, even when you work with others, you're still responsible. The lawyer who blames another lawyer or some non-lawyer for anything only makes himself look bad.
"Trying to learn everything from scratch is a loser's game - take advantage of available literature." I'm looking for lawyering ideas to steal every day.
"Keep the design as simple as possible." The whole point of lawyering is communication, with simplicity as the eternal goal.
"I noticed the students who had perfect grade points weren't the whiz-bang smartest - they were the ones who kept regular schedules and maintained discipline, closing their dorm room doors to study, eating regular meals and going to sleep at midnight." The lawyers who take all the money have both discipline and whiz-bang. The ones with neither are not long for the profession.
"Even when your expectations are low (and to be pragmatic and realistic, they often have to be), maintain high standards." Other lawyers, the clients, and the judges are always keeping score, whether you win or lose.
"So when I join a company and hear how smart the people there are - I'm not impressed. Unless they're also good people to work with. That's a lot harder to find." The difference between the best and the worst lawyers I've met has more to do with character and discipline than smarts. Everyone I met in college and in law school was smart.
"You can have smart people, lots of money and the latest technology, but your execution can still suck." See all the above.
"Don't trust politicians." At the University, the self-promoting student government types were called "politicos." Within the profession, I read about lawyer politicos, but I am unaware of many around here. Perhaps the local ones have no use for me.
Good thing the federal courts have no jurisdiction in domestic relations cases
This article about Governor-elect Tim Kaine records this heart-warming exchange between Kaine and the late Judge Robert Merhige:
"Anne Holton, Kaine's wife, was a clerk for Judge Merhige. So it was Judge Merhige who became almost a second father-in-law to the incoming governor. He even offered some warm advice at the Kaine-Holton wedding reception. Kaine recalled the exchange.
'Tim, you really better be good to Anne.' 'I'm going to be good to her, judge, because I love her. You know that.'
'No, I mean you better be good to her because I will kick your ass personally if I ever think you're not.'"
"Anne Holton, Kaine's wife, was a clerk for Judge Merhige. So it was Judge Merhige who became almost a second father-in-law to the incoming governor. He even offered some warm advice at the Kaine-Holton wedding reception. Kaine recalled the exchange.
'Tim, you really better be good to Anne.' 'I'm going to be good to her, judge, because I love her. You know that.'
'No, I mean you better be good to her because I will kick your ass personally if I ever think you're not.'"
Wonder whether these two legal encyclopedias are worthwhile
I just came across West's Encyclopedia of American Law and the Gale Encyclopedia of Everyday Law.
I have no idea what they are.
Unrelated to this, I've been meaning to check out Wex, but not gotten to it.
I have no idea what they are.
Unrelated to this, I've been meaning to check out Wex, but not gotten to it.
Today Bristol, tomorrow the world
Neal writes here that he is now some sort of official Democrat in the City of Bristol, Virginia.
Neal says all the elected officials in Bristol are Democrats but for the Commonwealth's attorney. I would never have guessed the politics of the other constitutional officers, but maybe all that means is that I've not been paying attention.
Neal says all the elected officials in Bristol are Democrats but for the Commonwealth's attorney. I would never have guessed the politics of the other constitutional officers, but maybe all that means is that I've not been paying attention.
Federal court in Illinois opens help desk for pro se litigants
This AP story details the opening of the help desk for pro se litigants as part of the service provided by the United States District Court for the Northern District of Illinois.
The article begins:
"Mountains of paperwork and confusing legal terms can be intimidating to the thousands of people who forgo a lawyer and represent themselves in court. But a federal court here is staffing a new help desk with an attorney to assist people involved in civil cases, and experts say it is believed to be the first of its kind in the nation.
The attorney offers free advice on how to file motions and interpret documents, and tells people if a lawsuit would be a waste of time."
The article begins:
"Mountains of paperwork and confusing legal terms can be intimidating to the thousands of people who forgo a lawyer and represent themselves in court. But a federal court here is staffing a new help desk with an attorney to assist people involved in civil cases, and experts say it is believed to be the first of its kind in the nation.
The attorney offers free advice on how to file motions and interpret documents, and tells people if a lawsuit would be a waste of time."
Saturday, January 07, 2006
On working in coal mines
The New York Times has this interesting article titled "Miners Steering Next Generation to Different Jobs."
The gist from the author's perspective is that the workforce underground is old, made up mostly of workers who went into the mines in the 1970s.
The gist from the author's perspective is that the workforce underground is old, made up mostly of workers who went into the mines in the 1970s.
From the bill bin
Senator Chichester proposes that all punitive damages go to the state Literary Fund, SB 68.
Delegate Suit proposes a definition of "public use," HB 94.
Delegate Marshall would ban state and local government from denying access to the Boy Scouts and Girl Scouts, HB 203.
Delegate Cosgrove would allow the Commonwealth to appeal from a general district court ruling that a statute is unconstitutional, HB 99.
Delegate Albo would eliminate caps on court-appointed counsel fees, HB 313.
Delegate Lingamfelter proposes a resolution urging eight-year terms, instead of life tenure, for federal district and circuit court judges, HJ 28.
Delegate Shannon wants to add a new crime for battery against a sports official, HB 243.
Delegate Carrico wants to criminalize cursing and abusing emergency personnel, HB 371.
Delegate Kilgore wants court-appointed counsel to be paid only if they get those timesheets in before 10 days after trial, HB 127.
Delegate Suit proposes a definition of "public use," HB 94.
Delegate Marshall would ban state and local government from denying access to the Boy Scouts and Girl Scouts, HB 203.
Delegate Cosgrove would allow the Commonwealth to appeal from a general district court ruling that a statute is unconstitutional, HB 99.
Delegate Albo would eliminate caps on court-appointed counsel fees, HB 313.
Delegate Lingamfelter proposes a resolution urging eight-year terms, instead of life tenure, for federal district and circuit court judges, HJ 28.
Delegate Shannon wants to add a new crime for battery against a sports official, HB 243.
Delegate Carrico wants to criminalize cursing and abusing emergency personnel, HB 371.
Delegate Kilgore wants court-appointed counsel to be paid only if they get those timesheets in before 10 days after trial, HB 127.
The Falwell forecast on Alito
In this story from the Lynchburg paper, the Reverend Jerry Falwell predicts that the number of votes in the U.S. Senate in favor of the nomination of Judge Samuel Alito to the U.S. Supreme Court will be "in the high 50s or low 60s."
On the Philip Thurman case
The Connection group has this very poignant article on the case of Philip Thurman, who was imprisoned for 20 years for a crime he did not commit before Governor Warner pardoned him after DNA evidence indicated his innocence.
On the Virginia Sarb-Ox case
In the latest opinion in Welch v. Cardinal Bankshares, Inc., Judge Glen Conrad of the W.D. Va. granted the defendant's motion to dismiss, concluding that the administrative proceedings were not yet ripe for district court enforcement of the plaintiff's asserted right to reinstatement after prevailing on his claims under Sarbanes-Oxley against the Southwest Virginia bank.
The Roanoke paper has this article about the case, titled "Cardinal Bankshares wins round with ex-CFO."
The article notes:
"The case has attracted national attention because former CFO David Welch and attorney Bruce Shine of Kingsport, Tenn., have argued, successfully, that Welch should have been protected from firing because of whistle-blower protections granted by the Sarbanes-Oxley Act of 2002. His case was one of the first national tests of those protections and was the first case to find for a claimant."
The Roanoke paper has this article about the case, titled "Cardinal Bankshares wins round with ex-CFO."
The article notes:
"The case has attracted national attention because former CFO David Welch and attorney Bruce Shine of Kingsport, Tenn., have argued, successfully, that Welch should have been protected from firing because of whistle-blower protections granted by the Sarbanes-Oxley Act of 2002. His case was one of the first national tests of those protections and was the first case to find for a claimant."
Dr. Knox staffer files for $250,000 in fees
The Roanoke paper reports here that the office manager charged with Dr. Cecil Knox is seeking reimbursement of her attorneys' fees under the Hyde Amendment, claiming that the government's prosecution of her was unjustified.
The U.S. attorney responded with a writing showing that the woman had expressly waived her right to seek such relief.
The U.S. attorney responded with a writing showing that the woman had expressly waived her right to seek such relief.
Johnson City lawyer sues judges for $23 million
The Kingsport paper reports here that a Johnson City, TN lawyer has sued two state court judges for $23 million.
This is the same fellow who was charged with contempt of court after one of his clients supposedly turned over e-mails from him advocating perjury.
Evidently, he is representing himself in this new civil case, if you can believe that.
This is the same fellow who was charged with contempt of court after one of his clients supposedly turned over e-mails from him advocating perjury.
Evidently, he is representing himself in this new civil case, if you can believe that.
On the ABA ratings
This current list of ABA ratings shows not only that the ABA rated Judge Alito as "well qualified," but also that the majority vote on Gregory van Tatenhove, the latest nominee for the Eastern District of Kentucky was "not qualified," with a minority voting for "qualified."
Quarterbacks with Crohn's
The NY Times had this story and the CCFA website had this story on David Garrard, the Jaguars' quarterback with Crohn's disease.
A.J. Suggs, another quarterback with Crohn's disease, had sort of a misfit college career at Tennessee and Georgia Tech.
A.J. Suggs, another quarterback with Crohn's disease, had sort of a misfit college career at Tennessee and Georgia Tech.
Recalling the Southmountain case
The recent events in West Virginia have given me pause to recollect the Southmountain explosion from some years ago. On December 7, 1992, an explosion killed a number of coal miners in the Southmountain No. 3 mine in Wise County.
In Fleming v. Apple Coal, 49 Va. Cir. 290 (1999), Judge Stump sustained the worker's comp bar plea of the parent company of Southmountain, leaving the plaintiffs with workers compensation as their exclusive remedy under Virginia law. (Virginia law does not make the same exceptions to the comp bar as does West Virginia law, see W.Va. Code § 23-4-2(c),(d).)
In Fleming v. U.S., 152 F. Supp.2d 886 (W.D. Va. 2001), Judge Jones found for the government after a bench trial under the Federal Tort Claims Act, in which the plaintiffs sought to prove that the negligence of MSHA inspectors was a proximate cause of the explosion. The Federal Tort Claims Act is the exclusive remedy for claims against federal employees who commit torts while acting within the scope of their employment.
In Fleming v. Apple Coal, 49 Va. Cir. 290 (1999), Judge Stump sustained the worker's comp bar plea of the parent company of Southmountain, leaving the plaintiffs with workers compensation as their exclusive remedy under Virginia law. (Virginia law does not make the same exceptions to the comp bar as does West Virginia law, see W.Va. Code § 23-4-2(c),(d).)
In Fleming v. U.S., 152 F. Supp.2d 886 (W.D. Va. 2001), Judge Jones found for the government after a bench trial under the Federal Tort Claims Act, in which the plaintiffs sought to prove that the negligence of MSHA inspectors was a proximate cause of the explosion. The Federal Tort Claims Act is the exclusive remedy for claims against federal employees who commit torts while acting within the scope of their employment.
BTQ takes on the Coleman case
Milbarge has this lengthy post about the Coleman case, which includes the obligatory reference to this blog as the SW Virginia embassy to the legal blogosphere.
M. says:
"If the new DNA tests clear Coleman, I expect abolitionists to say 'I told you so' and supporters to say 'It doesn't change our overall need for capital punishment.' If the tests inculpate Coleman, I expect supporters to say 'I told you so' and abolitionists to say 'It doesn't change the systemic problems with capital punishment.'"
I'd say that's right.
UPDATE: Also, this post on the Coleman case from reason.com generated a couple dozen comments, some of them surprisingly insipid for reason.com readers.
M. says:
"If the new DNA tests clear Coleman, I expect abolitionists to say 'I told you so' and supporters to say 'It doesn't change our overall need for capital punishment.' If the tests inculpate Coleman, I expect supporters to say 'I told you so' and abolitionists to say 'It doesn't change the systemic problems with capital punishment.'"
I'd say that's right.
UPDATE: Also, this post on the Coleman case from reason.com generated a couple dozen comments, some of them surprisingly insipid for reason.com readers.
More on the voting rights of convicted felons in Virginia
This ACSblog post reports on the continuing efforts to get Governor Warner to restore the vote to convicted felons in the Commonwealth.
It cites one source which claims that one stated purpose of Virginia's constitutional provision barring felons from voting was to take the vote from black people, and notes that presently one in six black adults in Virginia is disqualified from voting.
One in six are convicted felons? That's extraordinary, if true.
To my limited observation, the more frequent complaint of convicted felons in this part of the world is not about voting but that they cannot own guns.
It cites one source which claims that one stated purpose of Virginia's constitutional provision barring felons from voting was to take the vote from black people, and notes that presently one in six black adults in Virginia is disqualified from voting.
One in six are convicted felons? That's extraordinary, if true.
To my limited observation, the more frequent complaint of convicted felons in this part of the world is not about voting but that they cannot own guns.
Friday, January 06, 2006
Vick gets the boot
The AP is reporting that Virginia Tech has ousted quarterback Marcus Vick from its football team.
The Washington Post has the same story here.
The Washington Post has the same story here.
Thursday, January 05, 2006
Governor Warner orders DNA testing in Coleman case
The Washington Post is reporting that Governor Warner has ordered DNA testing of evidence from the case of Roger Keith Coleman from Buchanan County, who was executed in 1992 for the murder of Wanda McCoy.
The Post story begins: "Virginia Gov. Mark R. Warner (D) has ordered DNA testing that could prove the guilt or innocence of a man executed in 1992, marking the first time a governor has asked for genetic testing of someone already put to death."
The AP has this story.
The Post story begins: "Virginia Gov. Mark R. Warner (D) has ordered DNA testing that could prove the guilt or innocence of a man executed in 1992, marking the first time a governor has asked for genetic testing of someone already put to death."
The AP has this story.
Brevity is enjoined as the hallmark of good . . . anything
Evan in this post agrees with the virtue of the one-page summary, for one's own benefit in trial practice.
A while back, I read Guy Kawasaki's post describing the 10/20/30 Rule of PowerPoint - ten slides, 20 minutes, 30 point type. Interesting.
As for Virginia's Rule 1:4, where it says that "[b]revity is enjoined as the outstanding characteristic of good pleading," I've always wondered, who granted that injunction and was there a bond?
A while back, I read Guy Kawasaki's post describing the 10/20/30 Rule of PowerPoint - ten slides, 20 minutes, 30 point type. Interesting.
As for Virginia's Rule 1:4, where it says that "[b]revity is enjoined as the outstanding characteristic of good pleading," I've always wondered, who granted that injunction and was there a bond?
International Coal Group contracts
The Contracts Blog maestro has this post with a link to this collection of International Coal Group contracts, at onecle.com.
On the state of corporal punishment in Tennessee
Knight on Family Law has this post on a 1993 case describing the state of the law as it pertains to getting a spanking in Tennessee.
Tuesday, January 03, 2006
Is the Manassas zoning ordinance limiting extended family members from living together unconstitutional?
This post from Law Librarian Blog seems to think so, as it begins: "The city of Manassas, VA, has come up with one outrageous, probably unconstitutional, and clearly bigoted zoning ordinance."
Monday, January 02, 2006
Would the display in the old Sullivan County courthouse pass muster under the Mercer County case?
I had to laugh reading the Sixth Circuit's ruling in the Mercer County case, which looked at a courthouse display of the Ten Commandments and other "heritage" documents, identical in fact to what was before the Supreme Court in the McCreary case, that the display in Mercer County did not violate the Establishment Clause as construed in the McCreary case.
The ACLU lawyers had to scratch their heads over that one.
So, the difference, according to the Sixth Circuit, is not just what the display says, but the history of how it got there. The County in McCreary lost in court before changing its display, while the litigation record of Mercer County was pure. Since Sullivan County, Tennessee, is in the Sixth Circuit, I have to conclude that there is at least a chance that the Sullivan County display might pass muster, at least with one panel of the Court of Appeals, notwithstanding the pessimism of the County attorney.
The ACLU lawyers had to scratch their heads over that one.
So, the difference, according to the Sixth Circuit, is not just what the display says, but the history of how it got there. The County in McCreary lost in court before changing its display, while the litigation record of Mercer County was pure. Since Sullivan County, Tennessee, is in the Sixth Circuit, I have to conclude that there is at least a chance that the Sullivan County display might pass muster, at least with one panel of the Court of Appeals, notwithstanding the pessimism of the County attorney.
Willful nonpayment of taxes not serious crime under federal bar discipline rules
In In re: Wray, the Fourth Circuit in an opinion by Judge Luttig, joined by Judges Niemeyer and Traxler, reversed the E.D. Va. on the issue of whether the appellant's misdemeanor conviction of willful failure to pay federal income taxes required his disbarment from federal court practice under the Federal Rules of Disciplinary Enforcement.
Don't send this to people in your office
Instead, forward this list of top 10 time wasting websites to your opposing counsel.
Look, there's a Guy Kawasaki blog
What does it mean when a 40-something country lawyer is excited to discover the new Guy Kawasaki blog? Or that two plus years ago, I linked to a speech he gave at a California high school in 1995?
These are not very important questions.
These are not very important questions.
Still more on the Roger Keith Coleman case
Once again, the AP has a story about whether Governor Warner will order DNA testing from the Roger Keith Coleman case.
The article explains the hype about the case: "If the tests show Roger Keith Coleman did not rape and murder his sister-in-law in 1981, it would mark the first time in the United States an executed person is scientifically proven innocent, say death penalty opponents, who are keenly aware that such a result could sway public opinion their way." That seems like an amazing fact to me, that there are no such cases.
The article says: "Tom Scott, a Grundy attorney who helped prosecute the case, said he has no objection to retesting the DNA, and is confident doing so would confirm Coleman's guilt--provided the sample has been properly preserved and not tampered with."
I've heard that from others - that testing would reinforce the evidence that Coleman was guilty, and that this case will have no effect on the death penalty in Virginia.
The article explains the hype about the case: "If the tests show Roger Keith Coleman did not rape and murder his sister-in-law in 1981, it would mark the first time in the United States an executed person is scientifically proven innocent, say death penalty opponents, who are keenly aware that such a result could sway public opinion their way." That seems like an amazing fact to me, that there are no such cases.
The article says: "Tom Scott, a Grundy attorney who helped prosecute the case, said he has no objection to retesting the DNA, and is confident doing so would confirm Coleman's guilt--provided the sample has been properly preserved and not tampered with."
I've heard that from others - that testing would reinforce the evidence that Coleman was guilty, and that this case will have no effect on the death penalty in Virginia.
On the high tech enterprises coming to Russell County
Today's Washington Post includes "Mining Coal Country for Tech Workers," which says that Russell County is "where government contractors CGI-AMS Inc. and Northrop Grumman Corp. will in the next few months start building multimillion-dollar technology centers and hire hundreds of software engineers at salaries far above the region's average, bringing a taste of Washington's lucrative tech sector to a coal country enclave."
The gist of the article is that labor costs are forcing tech jobs out of the D.C. area into rural areas.
The article notes: "The average salary for the 300 people CGI-AMS expects to hire in Lebanon, for instance, will be $50,000 -- far above the town's $27,606 average annual wage but about half the salary an advanced software developer in Northern Virginia might earn."
The article also says: "Speculation about when a Starbucks will appear is rampant on the streets of Lebanon."
The gist of the article is that labor costs are forcing tech jobs out of the D.C. area into rural areas.
The article notes: "The average salary for the 300 people CGI-AMS expects to hire in Lebanon, for instance, will be $50,000 -- far above the town's $27,606 average annual wage but about half the salary an advanced software developer in Northern Virginia might earn."
The article also says: "Speculation about when a Starbucks will appear is rampant on the streets of Lebanon."
The Padilla case turned upside down
Via this How Appealing post, I read this interesting editorial in the Washington Post, titled "The 4th Circuit v. Mr. Bush."
The editorial concludes:
"But keeping a man locked up, even at his own request, so that his challenge to his detention remains viable, is no way to vindicate his rights. Mr. Padilla has been asking for years to face trial; the government has finally - belatedly - agreed. The Supreme Court should not let the 4th Circuit get in the way."
The editorial concludes:
"But keeping a man locked up, even at his own request, so that his challenge to his detention remains viable, is no way to vindicate his rights. Mr. Padilla has been asking for years to face trial; the government has finally - belatedly - agreed. The Supreme Court should not let the 4th Circuit get in the way."
On the career of Jackie Stump
The Roanoke paper has this retrospective on the legislative career of Jackie Stump, the UMWA official who has given up his seat as delegate on account of medical issues.
The article says in part:
"Stump, 59, was a key United Mine Workers Association leader during the union's 11-month strike against Pittston Coal Co. during 1989 and 1990. It was the union's first sit-down strike since the 1930s, as union members and supporters let themselves be arrested for sitting in roads to block Pittston coal trucks.
Stump was among those arrested, which may have made him the only Virginian to have gone almost directly from incarceration to a seat in the Virginia House of Delegates."
The article says in part:
"Stump, 59, was a key United Mine Workers Association leader during the union's 11-month strike against Pittston Coal Co. during 1989 and 1990. It was the union's first sit-down strike since the 1930s, as union members and supporters let themselves be arrested for sitting in roads to block Pittston coal trucks.
Stump was among those arrested, which may have made him the only Virginian to have gone almost directly from incarceration to a seat in the Virginia House of Delegates."
Can be there be a wrongful discharge claim in Virginia based on constructive discharge?
In the list of petitions granted for December 20, the Virginia Supreme Court agreed to hear the case of Mansoor v. County of Albemarle, which presents the very interesting question, as to whether the trial court "erred as a matter of law in ruling that no claim may be stated in Virginia for constructive discharge in violation of public policy." In other words, can the employer be liable for running off the employee, with an intent that violates the public policy of the Commonwealth, instead of firing him or her outright, with such illegal motivation?
The trial court was correct that there is no Virginia Supreme Court case law on point, in my opinion, while "[t]he circuit courts have pretty much been evenly split on the question of whether a constructive discharge claim can be used in a wrongful termination case in the Commonwealth of Virginia." Gochenour v. Beasley, 47 Va. Cir. 218, 221 (Rockingham County, 1998).
The Mansoor case could answer one of the several unanswered questions about the law of wrongful discharge in Virginia, despite two decades of litigation. One reason why there are so many unanswered questions is that the tort of wrongful discharge is entirely judge-made, and so we can only learn the answers bit by bit as the right cases percolate through the courts, which I think is a good reason why the Court should not have recognized the new cause of action in the first place. The legislature can and does create specific statutory wrongful discharge claims wherever it sees fit to do so. On the federal side, there has been 40 years of give and take between the courts and the Congress, as the law under various employment discrimination statutes has been shaped and reshaped. The many doctrines that have evolved under the federal law, including the McDonnell-Douglas proof scheme and recognition harassment and constructive discharge as forms of unlawful discrimination, are familiar to practitioners (while less familiar to most state court judges), but these concepts may have no particular relevance to development of the state law tort of wrongful discharge, in which the courts have a fundamentally different task, since they are not interpreting legislative intent.
Thus, the Supreme Court refused to apply McDonnell-Douglas: "Given the Commonwealth's strong commitment to the employment-at-will doctrine, and because we conclude that Virginia's procedural and evidentiary framework for establishing a prima facie case is entirely appropriate for trial of wrongful discharge cases, we reject plaintiff's invitation to adopt the McDonnell Douglas indirect, burden shifting idea. The McDonnell Douglas outline, refined in later cases, was adopted by the Supreme Court in the context of Title VII actions under the federal Civil Rights Act. There was no focus, as here, on the employment-at-will doctrine." Jordan v. Clay's Rest Home, Inc., 253 Va. 185, 192, 483 S.E.2d 203, 207 (1997).
The trial court was correct that there is no Virginia Supreme Court case law on point, in my opinion, while "[t]he circuit courts have pretty much been evenly split on the question of whether a constructive discharge claim can be used in a wrongful termination case in the Commonwealth of Virginia." Gochenour v. Beasley, 47 Va. Cir. 218, 221 (Rockingham County, 1998).
The Mansoor case could answer one of the several unanswered questions about the law of wrongful discharge in Virginia, despite two decades of litigation. One reason why there are so many unanswered questions is that the tort of wrongful discharge is entirely judge-made, and so we can only learn the answers bit by bit as the right cases percolate through the courts, which I think is a good reason why the Court should not have recognized the new cause of action in the first place. The legislature can and does create specific statutory wrongful discharge claims wherever it sees fit to do so. On the federal side, there has been 40 years of give and take between the courts and the Congress, as the law under various employment discrimination statutes has been shaped and reshaped. The many doctrines that have evolved under the federal law, including the McDonnell-Douglas proof scheme and recognition harassment and constructive discharge as forms of unlawful discrimination, are familiar to practitioners (while less familiar to most state court judges), but these concepts may have no particular relevance to development of the state law tort of wrongful discharge, in which the courts have a fundamentally different task, since they are not interpreting legislative intent.
Thus, the Supreme Court refused to apply McDonnell-Douglas: "Given the Commonwealth's strong commitment to the employment-at-will doctrine, and because we conclude that Virginia's procedural and evidentiary framework for establishing a prima facie case is entirely appropriate for trial of wrongful discharge cases, we reject plaintiff's invitation to adopt the McDonnell Douglas indirect, burden shifting idea. The McDonnell Douglas outline, refined in later cases, was adopted by the Supreme Court in the context of Title VII actions under the federal Civil Rights Act. There was no focus, as here, on the employment-at-will doctrine." Jordan v. Clay's Rest Home, Inc., 253 Va. 185, 192, 483 S.E.2d 203, 207 (1997).
On Judge Bumgardner
The Staunton paper has this interesting profile of Judge Rudolph Bumgardner III, who is about to retire from the Virginia Court of Appeals.
Judge Bumgardner was on the panel before whom I argued on October 6.
Judge Bumgardner was on the panel before whom I argued on October 6.
On summary judgment and the testimony of interested parties
In Stratienko v. Cordis Corp., the Sixth Circuit considered the plaintiff's argument that summary judgment was not proper where the evidence on which the District Court relied came from persons with an interest in the outcome of the case.
The plaintiff cited this language from the Supreme Court's decision in Reeves: "[T]he court should give credence to the evidence favoring the nonmovant as well as that ‘evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses."
The Sixth Circuit explained that this does not mean that the undisputed evidence from interested witnesses cannot be used in support of summary judgment, concluding that the issue "is not whether the district court could consider the affidavits of Cordis but instead whether the affidavits were uncontradicted."
This case gives me cause to recollect a passage from the little book I have on English legal history, which says in part: "The parties themselves, and interested persons, were excluded from the witness box at common law on the assumption that their testimony would be biased and therefore worthless." Baker, An Introduction to English Legal History 288-89 (Butterworths 2d ed. 1979).
The plaintiff cited this language from the Supreme Court's decision in Reeves: "[T]he court should give credence to the evidence favoring the nonmovant as well as that ‘evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses."
The Sixth Circuit explained that this does not mean that the undisputed evidence from interested witnesses cannot be used in support of summary judgment, concluding that the issue "is not whether the district court could consider the affidavits of Cordis but instead whether the affidavits were uncontradicted."
This case gives me cause to recollect a passage from the little book I have on English legal history, which says in part: "The parties themselves, and interested persons, were excluded from the witness box at common law on the assumption that their testimony would be biased and therefore worthless." Baker, An Introduction to English Legal History 288-89 (Butterworths 2d ed. 1979).
Preemption on steroids
In Palkow v. CSX Transportation, the Sixth Circuit dealt with an interesting case, where the plaintiff lost a federal court trial, then sued a witness claiming perjury, and the witness removed the case, claiming that there was a federal question because the second action was a form of collateral attack on the earlier, unappealed judgment for the defense.
Reversing the denial of the motion to remand the second case back to the state court, the Court concluded that there was no basis for federal jurisdiction. In connection with its preemption discussion, the Court characterized the "complete preemption" exception to the well-pleaded complaint rule, recognized in connection with the statutes such as the Labor-Management Relations Act and ERISA, with these words: "to use the jargon of the day, it is 'preemption on steroids.'"
Reversing the denial of the motion to remand the second case back to the state court, the Court concluded that there was no basis for federal jurisdiction. In connection with its preemption discussion, the Court characterized the "complete preemption" exception to the well-pleaded complaint rule, recognized in connection with the statutes such as the Labor-Management Relations Act and ERISA, with these words: "to use the jargon of the day, it is 'preemption on steroids.'"
Sunday, January 01, 2006
A bad football trip
I contrast our good fortune in enjoying the Nashville trip with what happened to the group from Bland County, described in this story, which says they were mugged in Jacksonville the night before the ACC championship game.
On the Music City Bowl
I've gone to the five of the last few bowl games in which Virginia played, all of them within reasonable driving distance of Southwest Virginia - the last two in Atlanta, the two in Charlotte, and Friday's game in Nashville.
Nashville, surprisingly or not, is a good place for a bowl game - there was lots going on Thursday night near the downtown hotels, and then the stadium was an easy walk across the river on Friday. Inside, the stadium was not much different than the other NFL stadiums I've seen - and the football food was cheaper and better than some I've had. Since the weather cooperated, and the right team won the game, it was a great trip.
I was feeling so fine afterwards, the next day, I went and bought a new car. The color is "Golden Beige," of which Dad said, "it looks more like mud than my car."
Nashville, surprisingly or not, is a good place for a bowl game - there was lots going on Thursday night near the downtown hotels, and then the stadium was an easy walk across the river on Friday. Inside, the stadium was not much different than the other NFL stadiums I've seen - and the football food was cheaper and better than some I've had. Since the weather cooperated, and the right team won the game, it was a great trip.
I was feeling so fine afterwards, the next day, I went and bought a new car. The color is "Golden Beige," of which Dad said, "it looks more like mud than my car."
On lawyer humor before the Supreme Court
In this New York Times article about the recent study of the frequency of laughter attributed to the remarks of different U.S. Supreme Court justices, there is also the following on lawyer humor:
"Lawyers get laughs sometimes, too, but it is a dangerous business. In the guidebook the court provides to lawyers preparing to argue before it, there is this stern warning: 'Attempts at humor usually fall flat.'
Thomas C. Goldstein, a Washington lawyer who appears before the court frequently, said humor 'is a land mine.'
'You have to follow the justices' lead,' Mr. Goldstein said. 'You have to be a straight man.'
Lawyers confuse one justice with another surprisingly often, and those mix-ups are, of course, an opportunity for humor.
Last November, Sri Srinivasan, a government lawyer, apologized to Justice David H. Souter for referring to him as Justice Scalia.
'Thank you,' Justice Souter said, with characteristic self-deprecation, 'but apologize to him.'"
My favorite of the name mix-ups is still from the oral argument in Bush v. Gore. See pages 33-35 of this transcript, concluding with "Mr. Klock - I'm Scalia."
A few memorable times I've heard lawyers or witnesses before Judge Williams tell a joke to make a point. At one key juncture in an important hearing, the witness asked the judge if he could tell about a cartoon he'd seen to make his point. "Well, all right," said the judge. "But it had better be a good one."
The first time I saw a lawyer make a joke and pull it off with some panache, the lawyer was a fine fellow named Michael J. Passino from Nashville, explaining why the United Mine Workers had tried yet again during the Pittston strike to remove the case before Judge McGlothlin to federal court. His name popped in my head the other day as I was walking back along Union Street after the Music City Bowl. I retold his joke for about the 100th time (over the past 15 years) as we were driving back from the game. He didn't win the motion, but he made an impression on me.
"Lawyers get laughs sometimes, too, but it is a dangerous business. In the guidebook the court provides to lawyers preparing to argue before it, there is this stern warning: 'Attempts at humor usually fall flat.'
Thomas C. Goldstein, a Washington lawyer who appears before the court frequently, said humor 'is a land mine.'
'You have to follow the justices' lead,' Mr. Goldstein said. 'You have to be a straight man.'
Lawyers confuse one justice with another surprisingly often, and those mix-ups are, of course, an opportunity for humor.
Last November, Sri Srinivasan, a government lawyer, apologized to Justice David H. Souter for referring to him as Justice Scalia.
'Thank you,' Justice Souter said, with characteristic self-deprecation, 'but apologize to him.'"
My favorite of the name mix-ups is still from the oral argument in Bush v. Gore. See pages 33-35 of this transcript, concluding with "Mr. Klock - I'm Scalia."
A few memorable times I've heard lawyers or witnesses before Judge Williams tell a joke to make a point. At one key juncture in an important hearing, the witness asked the judge if he could tell about a cartoon he'd seen to make his point. "Well, all right," said the judge. "But it had better be a good one."
The first time I saw a lawyer make a joke and pull it off with some panache, the lawyer was a fine fellow named Michael J. Passino from Nashville, explaining why the United Mine Workers had tried yet again during the Pittston strike to remove the case before Judge McGlothlin to federal court. His name popped in my head the other day as I was walking back along Union Street after the Music City Bowl. I retold his joke for about the 100th time (over the past 15 years) as we were driving back from the game. He didn't win the motion, but he made an impression on me.
On old DNA evidence in the Old Dominion
Today's NYT has an editorial that begins: "A harrowing postscript to official justice is taking place in Virginia, where the discovery of a forgotten generation's blood samples in old forensic files has led to modern DNA tests that have already cleared five inmates convicted of rape, with hundreds of other felony cases to be examined."
First things first
Jerry observes the contradiction, between today's Roanoke Times editorial that says the General Assembly should not be distracted from the real business of government by silly social issues, and today's Roanoke Times editorial urging the General Assembly to act on the silly social issue of Indian tribe recognition.
Thursday, December 29, 2005
Virginia and the Uniform Trust Code
In Virginia and the Uniform Trust Code, the Wills, Trusts & Estates Prof Blog says:
"John E. Donaldson (Ball Professor of Law, Emeritus, College of William and Mary, Marshall-Wythe School of Law) and Robert T. Danforth (Associate Professor of Law and Alumni Faculty Fellow, Washington and Lee University School of Law) have recently published their article entitled The Virginia Uniform Trust Code, 40 U. Rich. L. Rev. 325 (2005)."
"John E. Donaldson (Ball Professor of Law, Emeritus, College of William and Mary, Marshall-Wythe School of Law) and Robert T. Danforth (Associate Professor of Law and Alumni Faculty Fellow, Washington and Lee University School of Law) have recently published their article entitled The Virginia Uniform Trust Code, 40 U. Rich. L. Rev. 325 (2005)."
More on the lack of more money for defense of indigent criminal defendants
I agree also with this Roanoke Times editorial that says the Commonwealth should find a way to pay more for lawyers for the poor in criminal cases.
Wednesday, December 28, 2005
No more money for defending the poor
Kudos to the Norfolk paper for this editorial which says that Governor Warner should have proposed more money for lawyers for the poor in criminal cases.
Richmond beaver shot
The Times-Dispatch has this short story with many comments about how authorities at a Richmond-area botanical garden shot and killed a beaver that had been making a nuisance of his (or her) little fuzzy brown self.
From the comments:
"The beaver was a pest? I know some people who are pests, should they also be shot?"
"What happens when a citizen clubs to death an attacking alligator in the James? He gets fined. But an innocent beaver is executed for gnawing shrubs. Where's the justice?"
"It's okay as long as you make a hat from the hide and stew from the meat."
From the comments:
"The beaver was a pest? I know some people who are pests, should they also be shot?"
"What happens when a citizen clubs to death an attacking alligator in the James? He gets fined. But an innocent beaver is executed for gnawing shrubs. Where's the justice?"
"It's okay as long as you make a hat from the hide and stew from the meat."
Tuesday, December 27, 2005
Does the insurer's reservation of rights letter give the insured the right to hire its own counsel at the carrier's expense?
In Twin City Fire Ins. Co. v. Ben-Arnold Sunbelt Beverage Co., the Fourth Circuit in an opinion by District Judge Devers, joined by Judge Luttig and Senior Judge Hamilton, took the interesting question of whether, upon an insurer's issuance of a reservation of rights letter, the counsel retained by the insurer for the insured has a conflict of interest, such that the insured has the right to choose its own counsel and have the insurer pay for it.
The answer, under the facts of the case and South Carolina law, is no.
The answer, under the facts of the case and South Carolina law, is no.
On the poor Kentucky man and the surgeon from the Congo
Here, in a very interesting and provocative article, the Economist compares the lives and fortunes of a fellow on disability in Eastern Kentucky and a physician in Africa.
The man from Hazard gets $521 per month in SSI benefits. The doctor in the Congo gets about $600-700 per month.
The author explains and asks:
"Why juxtapose the lives of a poor man in a rich country and a relatively well-off man in a poor one? The exercise is useful for two reasons. First, it puts the rich world's wealth into context. A Congolese doctor, a man most other Congolese would consider wealthy, is worse off materially than most poor people in America. That, in itself, is striking.
The second purpose of the exercise is to shed light on some ticklish questions. What is the relationship between wealth and happiness? And what is the significance of relative poverty? Mr Banks makes $521 a month in a country where median male earnings are $3,400 a month. Dr Kabamba earns $600 a month in a country where most people grow their own food and hardly ever see a bank note. The two men's experiences could hardly be less similar. But which of the two would one expect to be happier?"
The author concludes:
"The point of this article is neither to mock Mr Banks nor to praise Dr Kabamba. Both have their virtues and flaws, and your correspondent cannot reliably judge which is the happier. But here are two concluding observations. First, if poor Americans were to compare their standard of living with what is normal elsewhere in the world, let alone in Congo, they would see they have little cause for discontent. Then again, were Americans not so incurably discontented with their lot, their great country would not be half as dynamic as it is."
Read the whole thing.
The man from Hazard gets $521 per month in SSI benefits. The doctor in the Congo gets about $600-700 per month.
The author explains and asks:
"Why juxtapose the lives of a poor man in a rich country and a relatively well-off man in a poor one? The exercise is useful for two reasons. First, it puts the rich world's wealth into context. A Congolese doctor, a man most other Congolese would consider wealthy, is worse off materially than most poor people in America. That, in itself, is striking.
The second purpose of the exercise is to shed light on some ticklish questions. What is the relationship between wealth and happiness? And what is the significance of relative poverty? Mr Banks makes $521 a month in a country where median male earnings are $3,400 a month. Dr Kabamba earns $600 a month in a country where most people grow their own food and hardly ever see a bank note. The two men's experiences could hardly be less similar. But which of the two would one expect to be happier?"
The author concludes:
"The point of this article is neither to mock Mr Banks nor to praise Dr Kabamba. Both have their virtues and flaws, and your correspondent cannot reliably judge which is the happier. But here are two concluding observations. First, if poor Americans were to compare their standard of living with what is normal elsewhere in the world, let alone in Congo, they would see they have little cause for discontent. Then again, were Americans not so incurably discontented with their lot, their great country would not be half as dynamic as it is."
Read the whole thing.
Monday, December 26, 2005
Brian Wills has got it wrong
Brian Wills wrote an ignorant column about the '72 Dolphins.
The idea that the old Dolphins gather for champagne has been debunked as a myth, this year if not before.
And, even when I thought it was true, I thought it was great, myself.
The idea that the old Dolphins gather for champagne has been debunked as a myth, this year if not before.
And, even when I thought it was true, I thought it was great, myself.
Thursday, December 22, 2005
On whether federal inmates sued in federal court get guardians ad litem
In Buchanan County v. Blankenship, Chief Judge Jones of the W.D. Va. denied the request of some of the incarcerated defendants for the appointment of guardians ad litem.
Since I'm in the case, I won't say anything about it, except that Judge Jones thought the issue was interesting enough to submit the opinion for publication in the Federal Supplement.
Since I'm in the case, I won't say anything about it, except that Judge Jones thought the issue was interesting enough to submit the opinion for publication in the Federal Supplement.
Wednesday, December 21, 2005
The budget for the court system in Virginia
Bacon's has been blogging the budget, including the judicial system.
It says 3,100 jobs and a budget of $330 million are the current figures.
It says 3,100 jobs and a budget of $330 million are the current figures.
On using the c-word
Via Overlawyered, I read this article about the black defense lawyer who, after a losing a trial, rode the elevator with some of the the jurors from the case and called them "just a bunch of crackers," and it makes me think of that SNL skit with Richard Pryor and Chevy Chase conducting a word association exercise, first broadcast 30 years and eight days ago. (Amazing, that long ago?)
Judge Posner on the economics of capital punishment
In this remarkable post, Judge Posner explains that there is evidence that the death penalty has a deterrent effect, citing one study which shows that "one execution deters 18 murders," and expressing his view that "[t]he number of people who are executed for a murder they did not commit appears to be vanishingly small," while concluding that "even with the existing, excessive, delay, the recent evidence concerning the deterrent effect of capital punishment provides strong support for resisting the abolition movement."
The Padilla case
Steve Emmert at Virginia Appellate News links to today's opinion in the Padilla case, in which Judge Luttig joined Judge Michael refused to accommodate what Judge Luttig suggested appears to be the government's efforts to prevent the Supreme Court from reviewing the earlier panel decision in the case, deciding instead that the Supreme Court ought to have a chance to review the earlier opinion in the case.
Judge Luttig goes on explain his view that the government is making a big mistake by its handling of this case:
"For, as the government surely must understand, although the various facts it has asserted are not necessarily inconsistent or without basis, its actions have left not only the impression that Padilla may have been held for these years, even if justifiably, by mistake –- an impression we would have thought the government could ill afford to leave extant. They have left the impression that the government may even have come to the belief that the principle in reliance upon which it has detained Padilla for this time, that the President possesses the authority to detain enemy combatants who enter into this country for the purpose of attacking America and its citizens from within, can, in the end, yield to expediency with little or no cost to its conduct of the war against terror –- an impression we would have thought the government likewise could ill afford to leave extant. And these impressions have been left, we fear, at what may ultimately prove to be substantial cost to the government’s credibility before the courts, to whom it will one day need to argue again in support of a principle of assertedly like importance and necessity to the one that it seems to abandon today. While there could be an objective that could command such a price as all of this, it is difficult to imagine what that objective would be."
Judge Luttig goes on explain his view that the government is making a big mistake by its handling of this case:
"For, as the government surely must understand, although the various facts it has asserted are not necessarily inconsistent or without basis, its actions have left not only the impression that Padilla may have been held for these years, even if justifiably, by mistake –- an impression we would have thought the government could ill afford to leave extant. They have left the impression that the government may even have come to the belief that the principle in reliance upon which it has detained Padilla for this time, that the President possesses the authority to detain enemy combatants who enter into this country for the purpose of attacking America and its citizens from within, can, in the end, yield to expediency with little or no cost to its conduct of the war against terror –- an impression we would have thought the government likewise could ill afford to leave extant. And these impressions have been left, we fear, at what may ultimately prove to be substantial cost to the government’s credibility before the courts, to whom it will one day need to argue again in support of a principle of assertedly like importance and necessity to the one that it seems to abandon today. While there could be an objective that could command such a price as all of this, it is difficult to imagine what that objective would be."
Tuesday, December 20, 2005
On the passing of a Southwest Virginia blogger
From Smyth County, Julie Whitt wrote Breath of Heaven, and her friends wrote about her here. In her writing, she was full of love and hope, hope for a day when she could be healthy, and be a mom, and grow old with her husband.
On December 12, 2005, a week before she died, she wrote this post, which says in part:
"It’s not easy being stuck in a body that doesn’t work, but at least I have a chance at a way out. There’s a commercial that reminds me of me. A girl is walking down a city street listening to her mp3 player. She passes a building with reflective windows and you see her reflection dancing to the music. In reality she’s just walking, but she’s dancing in her mind. I’ve been dancing in my head for 17 years. I’m very eager to be the girl dancing in the reflection."
On December 12, 2005, a week before she died, she wrote this post, which says in part:
"It’s not easy being stuck in a body that doesn’t work, but at least I have a chance at a way out. There’s a commercial that reminds me of me. A girl is walking down a city street listening to her mp3 player. She passes a building with reflective windows and you see her reflection dancing to the music. In reality she’s just walking, but she’s dancing in her mind. I’ve been dancing in my head for 17 years. I’m very eager to be the girl dancing in the reflection."
Monday, December 19, 2005
Mr. Kilgore's new job
Here, the Williams Mullen firm announced the formation of its "Multistate Corporate Compliance & Public Policy Group" led by Jerry Kilgore.
Newsweek covers the Virginians
In this article, Newsweek profiles Governor Warner and Senator Allen, but without any James Drury (he played The Virginian on TV).
Speaking of the Virginians, today I was in the presence of John Brownlee and Chad Dotson at the same time, in the same room, and without any criminals present.
Speaking of the Virginians, today I was in the presence of John Brownlee and Chad Dotson at the same time, in the same room, and without any criminals present.
Sunday, December 18, 2005
On citation to unpublished opinions
HOWT explains here why citation to unpublished opinions should never be a problem: "If we have done our job properly, there is no need to ever cite an unpublished opinion because, theoretically at least, there should be a published opinion on the same point."
ALso, he notes: "an unpublished opinion is not circulated beyond the members of the panel while a published opinion is circulated to the full court for review and comment (although only the members of the panel have a vote on the outcome)."
These are good reasons why an unpublished opinion is less persuasive, but not good reasons for prohibiting an enterprising lawyer to cite an unpublished opinion, and make of it whatever he can.
ALso, he notes: "an unpublished opinion is not circulated beyond the members of the panel while a published opinion is circulated to the full court for review and comment (although only the members of the panel have a vote on the outcome)."
These are good reasons why an unpublished opinion is less persuasive, but not good reasons for prohibiting an enterprising lawyer to cite an unpublished opinion, and make of it whatever he can.
Interesting profile of Richmond deputy prosecutor soon to leave office
In this article, the Richmond paper chronicles the colorful life and times of Tony Spencer, who is leaving office with his friend and colleague the Commonwealth's attorney in Richmond.
Here's one provocative sentence: "Sandwiched between stints as a practicing attorney, Spencer tended bar, played trumpet in a ska band and taught English in Spain."
Here's one provocative sentence: "Sandwiched between stints as a practicing attorney, Spencer tended bar, played trumpet in a ska band and taught English in Spain."
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