Net neutrality, part four

4. what Congress has been doing and not doing

4.1. Barton bill - HR 5252 - The Communications Opportunity, Promotion, and Enhancement Bill (COPE)

4.1.1. COPE provisions - "The purpose of the Communications Opportunity, Promotion, and Enhancement Act of 2006 is to promote the deployment of broadband networks and services. The bill does so by: (1) creating a streamlined, pro-competitive national process under which companies can enter the cable service market with new, advanced networks capable of providing broadband video, voice, and data services; (2) authorizing the Federal Communications Commission (FCC or the Commission) to enforce its Broadband Policy Statement and the principles incorporated therein on a case-by-case basis so that consumers continue to have access to lawful content, applications, and services of their choosing that are available over the public Internet; (3) facilitating and requiring the provision of 911 and enhanced 911 (E911) services to consumers by Voice Over Internet Protocol (VOIP) providers; (4) ensuring that municipalities have the option to provide telecommunications, information, and cable services to their communities; (5) ensuring consumers have the option to purchase broadband services on a stand-alone basis; and (6) facilitating the development of multi-function, multi-platform wireless devices capable of offering a range of converging broadband services." House Report 109-470

4.1.2. Markey amendment - House Amendment 987 - rejected 152-269

4.1.2.1. amendment text - SEC. 715. NETWORK NEUTRALITY.

4.1.2.1.1. (a) Policy- It is the policy of the United States--

(1) to maintain and enhance the vibrant and competitive free market that presently exists for the Internet and Internet services, upon which Internet commerce relies;

(2) to preserve and promote the open and interconnected nature of the Internet and consumer empowerment and choice;

(3) to foster innovation, investment, and competition among network providers, as well as application, content, and service providers;

(4) to ensure vigorous and prompt enforcement of this section's requirements to safeguard innovation, consumer protection, and marketplace certainty; and

(5) to preserve the security and reliability of the Internet and the services that enable consumers to access content, applications, and services over the Internet.

4.1.2.1.2. (b) In General- Each broadband network provider has the duty--

(1) not to block, impair, degrade, discriminate against, or interfere with the ability of any person to use a broadband connection to access, use, send, receive, or offer lawful content, applications, or services over the Internet;

(2) to operate its broadband network in a nondiscriminatory manner so that any person can offer or provide content, applications, and services through, or over, such broadband network with equivalent or better capability than the provider extends to itself or affiliated parties, and without the imposition of a charge for such nondiscriminatory network operation;

(3) if the provider prioritizes or offers enhanced quality of service to data of a particular type, to prioritize or offer enhanced quality of service to all data of that type (regardless of the origin of such data) without imposing a surcharge or other consideration for such prioritization or enhanced quality of service;

(4) to enable a user to attach and use any device to the operator's network that does not physically damage, make unauthorized use of, or materially degrade other users' utilization of, the network; and

(5) to clearly and conspicuously disclose to users, in plain language, accurate information about the speed, nature, and limitations of their broadband connection.

4.1.2.1.3. (c) Preserved Rights and Exceptions- Nothing in this section shall prevent a broadband network provider from taking reasonable and nondiscriminatory measures to--

(1) manage the functioning of its network to protect the security of such network and broadband network services, provided that such management does not depend upon the affiliation with the broadband network provider of the content, applications, or services on the network;

(2) offer varied service plans to users at defined levels of bandwidth and different prices;

(3) offer consumer protection services (including services for the prevention of unsolicited commercial electronic messages, parental controls, or other similar capabilities), or offer cable service, so long as a user may refuse or disable such services;

(4) give priority to emergency communications and telemedicine services; or

(5) prevent any violation of Federal or State law, or comply with any court-ordered law enforcement directive.

4.1.2.2. how they voted on the amendment -

4.1.2.2.1. yeas - Boucher, Moran, Scott, Wolf

4.1.2.2.2. nays - Cantor, Jo Ann Davis, Drake, Forbes, Goode, Goodlatte

4.1.3. COPE passed the House on June 8, 2006

4.2. Markey bill - HR 5273 - "Network Neutrality Act of 2006’’ - voted down in committee

4.3. Stevens bill - S 2686 - Communications, Consumer's Choice, and Broadband Deployment Act of 2006

4.3.1. summary of other provisions

4.3.1.1. Communications, Consumer's Choice, and Broadband Deployment Act of 2006 - Directs the Federal Communications Commission (FCC) to reduce the cost of calling home for U.S. military personnel stationed outside the United States in support of military operations, training exercises, or other approved purposes.

4.3.1.2. Amends the Digital Television Transition and Public Safety Act of 2005 to direct the Assistant Secretary of Commerce for Communications and Information to allocate a portion of the funds available under such Act for: (1) making interoperable communications system equipment grants for equipment that can utilize reallocated public safety spectrum; and (2) establishing and implementing a strategic technology reserves initiative.

4.3.1.3. Internet and Universal Service Act of 2006 - Requires each communications service provider to contribute to support universal service (the provision of communications service in rural, insular, and high-cost areas). Outlines requirements for distribution of universal service support to eligible communications carriers. Establishes a Broadband for Unserved Areas Account.

4.3.1.4. Video Competition and Savings for Consumers Act of 2006 - Amends the Communications Act of 1934 to provide regulatory and franchising requirements for video services and video service providers similar to those currently applicable to cable communications operators. Requires the provision of channels for public, educational, and governmental use. Prohibits the denial of video service access because of income, race, or religion.

4.3.1.5. Video Content Act - Sports Freedom Act of 2006 - Prohibits multichannel video programming distributors (MVPDs) from engaging in unfair or deceptive acts or practices to hinder or prevent other MVPDs from providing such programming or satellite broadcast programming to consumers.

4.3.1.6. Digital Content Protection Act of 2006 - Directs the FCC to implement its Report and Order in the matters of: (1) Digital Broadcast Content Protection; and (2) Digital Output Protection Technology and Recording Method Certifications. Authorizes the FCC to promulgate regulations governing the indiscriminate redistribution of audio content with respect to digital and satellite radio broadcasts. Requires the FCC to establish the Digital Audio Review Board.

4.3.1.7. Community Broadband Act - Amends the Telecommunications Act of 1996 to prohibit any state or local government statute, regulation, or other legal requirement from prohibiting any public provider from providing, to any person or any public or private entity, advanced communications capability or any service that utilizes the advanced communications capability provided by such provider. Provides safeguards, including that a public provider may not provide advanced communications capability to the public unless the provision of such capability by that public provider is subject to the same laws and regulations that would apply if the advanced communications capability were being provided by a nongovernmental entity.

4.3.1.8. Wireless Innovation Act of 2006 or WIN Act of 2006 - Makes eligible television spectrum available for wireless use.

4.3.1.9. Outlines consumer education requirements for analog television receivers, as well as requirements to reduce the government cost of the converter box program.

4.3.1.10. Outlines requirements for: (1) the protection of children with respect to the video transmission of child pornography; and (2) the free flow of information over the Internet.

4.3.2. FCC study and reporting requirement on net neutrality

4.3.2.1. SEC. 901. NEUTRAL NETWORKS FOR CONSUMERS.

(a) IN GENERAL- Beginning 1 year after the date of enactment of this Act, the Federal Communications Commission shall report annually to the Senate Committee on Commerce, Science, and Transportation and the House of Representatives Committee on Energy and Commerce for 5 years regarding--

(1) the developments in Internet traffic processing, routing, peering, transport, and interconnection;

(2) how such developments impact the free flow of information over the public Internet and the consumer experience using the public Internet;

(3) business relationships between broadband service providers and applications and online user services; and

(4) the development of and services available over public and private Internet offerings.

(b) DETERMINATIONS AND RECOMMENDATIONS- If the Commission determines that there are significant problems with any of the matters described in subsection (a) the Commission shall make such recommendations in its next annual report under subsection (a) as it deems necessary and appropriate to ensure that consumers can access lawful content and run Internet applications and services over the public Internet subject to the bandwidth purchased and the needs of law enforcement agencies. The Commission shall include recommendations for appropriate enforcement mechanisms but may not recommend additional rulemaking authority for the Commission.

4.3.3. Snowe-Dorgan amendment - S 2917 - would add some anti-discrimination provisions to Stevens bill

4.3.4. June 28, 2006 - Senate Commerce, Science, and Transportation committee hearing - "The Internet is not a truck"

4.3.4.1. See the video on YouTube

4.3.4.2. bill passes committee without substantive net neutrality provisions, Wyden threatens filibuster

4.3.4.2.1. Allen and other Republicans on the committee (except Snowe) refused to vote for net neutrality

4.3.5. full Senate vote stalled as Stevens supposedly lacks the 60 votes for cloture

4.4. Wyden bill - S 2360 - "Internet Non-Discrimination Act of 2006" - referred to committee

Net neutrality, part three

3. what the FCC has been doing and not doing

3.1. "The Federal Communications Commission today adopted a policy statement that outlines four principles to encourage broadband deployment and preserve and promote the open and interconnected nature of public Internet: (1) consumers are entitled to access the lawful Internet content of their choice; (2) consumers are entitled to run applications and services of their choice, subject to the needs of law enforcement; (3) consumers are entitled to connect their choice of legal devices that do not harm the network; and (4) consumers are entitled to competition among network providers, application and service providers, and content providers. Although the Commission did not adopt rules in this regard, it will incorporate these principles into its ongoing policymaking activities. All of these principles are subject to reasonable network management." - August 5, 2005 policy statement

3.2. some people blame primarily the FCC for the lack of competition, for deciding that broadband connections not subject to common carrier rules under the Telecommunications Act

3.2.1. "The reason we are having a fight over network neutrality now is that the government took a wrong turn about five or six years ago, and decided not to require open access by broadband providers." Jack Balkin

3.2.2. formerly, under the Telecommunications Act of 1996, the CLECs (competitive local exchange carriers) got to share elements of the RBOC's (regional bell operating companies) and the ILEC's (incumbent local exchange carriers) networks - 1996 Act requires sharing of "telecommunications" services but not "information" services, and at one time some happy optimistic people thought that the cable companies also would have to share their networks

3.2.2.1. 1996 - we thought we were bad if we could connect to AOL at 14.4 k over the telephone, via a long-distance number

3.2.3. the FCC refused to classify the cable networks as providing "telecommunications" services subject to the sharing requirements, etc., of the 1996, so there never has been sharing of the cable networks, and the Ninth Circuit in 2003 and later the Supreme Court in June 2005 upheld this decision in the Brand X case (6-3 decision by Justice Thomas, with Scalia, Souter, and Ginsburg dissenting - talk about strange bedfellows)

3.2.4. after the Brand X decision, on the same day as their declaration of principles, the FCC reclassified DSL also as an "information service," with the effect of eliminating sharing of the telephone networks for DSL connections

3.2.4.1. "Today, we decide that the appropriate framework for wireline broadband Internet access service, including its transmission component, is one that is eligible for a lighter regulatory touch." - FCC

3.2.5. now the CLECs and DLECs (data local exchange carriers) have largely gone the way of the Dodo, most sharing ended by 2005

3.2.5.1. supposedly, there are 168 CLECs approved by the State Corporation Commission as of 2005, down from 191 at end of 2003

3.3. FCC says broadband is 200k, up and down, and that broadband is available in 99% of U.S. as of July 2006 (summary); (report)

3.3.1. "This checkpoint marks the first time at least 99 percent of all US zip codes have access to at least one broadband service, leaving parts of Alaska, most of the Florida Everglades, and a huge chunk of Northern Maine in the digital backwaters for now" – Ars Technica

3.3.1.1. there are places in Southwest Virginia (Rose Hill?) that have no DSL or cable, but then there are places in Southwest Virginia with no public water or sewer

3.3.2. GAO says FCC not measuring broadband fairly and accurately - May 2006

3.4. FCC commissioner Copps claims agency can act against network discrimination under existing law -

3.4.1. "The Federal Communications Commission has authority under current law to ensure that broadband-access providers -- currently mainly cable and phone companies -- do not discriminate against Web-based providers of content, search services and applications, FCC commissioner Michael Copps said Tuesday. Speaking to reporters, Copps stressed that it was essential for the agency to go beyond hortatory policy principles and adopt enforceable rules that guarantee network neutrality and shield Internet companies without wires into millions of homes from potential misconduct by companies that control those wires. “I think we have authority to go now to the second phase of network neutrality, to make sure that there's not discrimination against those that are not affiliated with the network owners,” Copps said in a press briefing held in his office here. FCC chairman Kevin Martin, however, has favored a deregulatory approach. Last August, he won agency adoption of nonbinding principles related to net neutrality, but he has not endorsed the need for specific agency rules that Copps wants."

3.4.2. "We need to...figure out, practically speaking, how do we ensure that there's not discrimination on the Internet." Copps interview

Net neutrality, part two

2. strange bedfellows

2.1. Those in favor of net neutrality legislation:

2.1.1. Dell, Microsoft, Google, Craigslist, eBay, Amazon.com, Vonage, Christian Coalition, ACLU, Gun Owners of America, Feminist Majority, Parents Television Council, American Library Association, Consumers Union, Educause, AARP, National Religious Broadcasters, MoveOn.org

2.1.2. Rick Boucher, Jim Webb, John Kerry, Nancy Pelosi, Barbara Boxer, John Dingell, John Conyers, Jim Sensenbrenner

2.1.2.1. Democrats get net neutrality

2.1.3. Lawrence Lessig, Glenn Reynolds, The New Republic Online, Scientific American; NY Times

2.1.4. purveyors of online vice?

2.2. Those opposed:

2.2.1. Verizon, Comcast, Time Warner, etc.

2.2.1.1. NCTA - cable association headed by former Virginia Republican Congressional candidate Kyle McSlarrow

2.2.2. American Conservative Union, Heritage Foundation, Cisco, National Association of Manufacturers, Donald Luskin

2.2.3. Washington Post; Washington Times

2.2.4. George Allen (so far), Dick Armey, Ted Stevens, Federal Trade Commission Chairman Deborah Platt Majoras, Marsha Blackburn, Steve Forbes

2.3. thinly-veiled advocacy coalitions

2.3.1. http://www.savetheinternet.com/, http://www.wearetheweb.org/

2.3.2. http://www.handsoff.org/

Net neutrality, part one

1. what is it

1.1. "net neutrality" as defined by its proponents is the idea that network providers should not be allowed to discriminate in the handling of traffic on the internet

1.1.1. "Net Neutrality means that if I pay for a certain level of service and you pay for a certain level of service, then we get to communicate with each other at that level." - Timothy Berners-Lee, internet founder

1.1.1.1. "Potentially in the United States - but only, as far as I understand it, in the United States - is the idea that for high-speed Internet connections capable of handling video, the telecommunications companies would try to change the rules, so that if the International Herald Tribune has a video Web site and I have a browser that can do video, I would only be able to browse your video blog if you had paid my cable company some money. And that would be serious." - Berners-Lee, International Herald-Tribune, 5/31/06

1.1.2. “[W]ould it be a problem if AT&T makes it slower and harder to reach Gmail and quicker and easier to reach Yahoo! mail?” - Professor Tim Wu

1.1.3. elements of net neutrality - Daniel Weitzner, MIT -

1.1.3.1. Non-discriminatory routing of packets

1.1.3.2. User control and choice over service levels

1.1.3.3. Ability to create and use new services and protocols without prior approval of network operators

1.1.3.4. Non-discriminatory peering of backbone networks.

1.1.4. "nuts and bolts" of discrimination explained - Edward Felten, Princeton - ("One of the reasons the network neutrality debate is so murky is that relatively few people understand the mechanics of network discrimination. In reasoning about net neutrality it helps to understand the technical motivations for discrimination, the various kinds of discrimination and how they would actually be put into practice, and what countermeasures would then be available to users and regulators.")

1.2. "net neutrality" as defined by its opponents is a form of government regulation limiting what internet providers can do in providing services for its customers and funding network improvements

1.3. "the frenzied search for the perfect metaphor" -

1.3.1. the internet is . . .

1.3.1.1. like the interstate - "How would you feel if I-95 announced an exclusive deal with General Motors to provide a special "rush-hour" lane for GM cars only?

1.3.1.2. like cable television - "The business model that this most resembles is cable television. There's one key difference, though. In the cable world, the service providers pay channels for the rights to broadcast their shows. In the system that telco-cable is proposing for the Internet, the content providers-who provide the services that make customers clamor for broadband in the first place-would have to pay for the privilege of being included." -

1.3.1.3. not a truck, it's a series of tubes - Senator Ted Stevens, June 28, 2006

1.3.2. net neutrality is

1.3.2.1. "like pornography: You know it when you see it" - Congressman Joe Barton,

1.3.2.2. "net neutering"

1.4. net neutrality as explained on The Daily Show by the PC guy from the Apple commercials

Taxation of emotional distress damages is unconstitutional under the Sixteenth Amendment?

In Murphy v. IRS, the D.C. Circuit held that the money plaintiff received for emotional distress could not be constitutionally taxed as income.

The plaintiff argued "that, being neither a gain nor an accession to wealth, her award is not income and § 104(a)(2) is therefore unconstitutional insofar as it would make the award taxable as income. Broad though the power granted in the Sixteenth Amendment is, the Supreme Court, as Murphy points out, has long recognized “the principle that a restoration of capital [i]s not income; hence it [falls] outside the definition of ‘income’ upon which the law impose[s] a tax.” O’Gilvie, 519 U.S. at 84; see, e.g., Doyle v. Mitchell Bros. Co., 247 U.S. 179, 187-88 (1918); S. Pac. Co. v. Lowe, 247 U.S. 330, 335 (1918) (return of capital not income under IRC or Sixteenth Amendment). By analogy, Murphy contends a damage award for personal injuries -- including nonphysical injuries -- is not income but simply a return of capital -- “human capital,” as it were." The government, predictably, rejected everything that Murphy presented in support of this view.

Beginning its analysis, the Court observed:

"At the outset, we reject the Government’s breathtakingly expansive claim of congressional power under the Sixteenth Amendment -- upon which it founds the more far-reaching arguments it advances here. The Sixteenth Amendment simply does not authorize the Congress to tax as “incomes” every sort of revenue a taxpayer may receive. As the Supreme Court noted long ago, the “Congress cannot make a thing income which is not so in fact.” Burk-Waggoner Oil Ass’n v. Hopkins, 269 U.S. 110, 114 (1925). Indeed, because the “the power to tax involves the power to destroy,” McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 431 (1819), it would not be consistent with our constitutional government, and the sanctity of property in our system, merely to rely upon the legislature to decide what constitutes income." The Court added, however, that "we must inquire whether “the people when they adopted the Sixteenth Amendment,” or the Congress when it implemented the Amendment, would have understood compensatory damages for a nonphysical injury to be “income.”"

The Court reasoned:

"As we have seen, it is clear from the record that the damages were awarded to make Murphy emotionally and reputationally “whole” and not to compensate her for lost wages or taxable earnings of any kind. The emotional well-being and good reputation she enjoyed before they were diminished by her former employer were not taxable as income. Under this analysis, therefore, the compensation she received in lieu of what she lost cannot be considered income and, hence, it would appear the Sixteenth Amendment does not empower the Congress to tax her award."

On the point of whether recovery for emotional distress was considered income when the Sixteenth Amendment was passed, the Court concluded: "That emotional distress and loss of reputation were both actionable in tort when the Sixteenth Amendment was adopted supports the view that compensation for these nonphysical injuries was not regarded differently than was compensation for physical injuries and, therefore, was not considered income by the framers of the Amendment and the state legislatures that ratified it. . . .

"In sum, every indication is that damages received solely in compensation for a personal injury are not income within the meaning of that term in the Sixteenth Amendment. First, as compensation for the loss of a personal attribute, such as wellbeing or a good reputation, the damages are not received in lieu of income. Second, the framers of the Sixteenth Amendment would not have understood compensation for a personal injury -- including a nonphysical injury -- to be income. Therefore, we hold § 104(a)(2) unconstitutional insofar as it permits the taxation of an award of damages for mental distress and loss of reputation."

Section 104(a)(2) was amended in 1996 to limit exclusions from income for personal injuries or sickness to physical injuries or sickness. See Small Business Job Protection Act of 1996, Pub. L. No. 104-188, § 1605(a), 110 Stat. 1755, 1838. Last year in the Banks case, the Supreme Court held: "When a litigant’s recovery constitutes income, the litigant’s income includes the portion of the recovery paid to the attorney as a contingent fee." If emotional distress cannot be income, then perhaps the associated fees cannot be either.

This is a blockbuster decision that affects every employment discrimination and civil rights case.

Here are posts about the case at Taxprof with many links here, Volokh, Balkinization.

Gone to Martinsville

Well, the next post here will describe whether I was run out of town after my talk on Net Neutrality at the Blogs United event.

If it goes well, I'll post most of it here, in some form or another.

This will be reversed by the Sixth Circuit

ACSBlog links here to a district court ruling from Michigan that the President's warrantless surveillance program is unconstitutional.

The district judge is a graduate of an Ivy League law school, a woman appointed by President Carter.

The ACLU lost badly in its last big Sixth Circuit case, I would expect the same in this case.

Collections via Poe or Stevenson

In the manner of The Gold Bug, or Treasure Island, this story:

" Armed with a court order, America Online was preparing to dig up the Massachusetts' yard of the parents of a man it sued for sending millions of unsolicited commercial spam e-mails to AOL users.

Meanwhile, the owners of the yard were preparing Wednesday to go to another court to block the excavation.

The alleged buried gold and platinum bars are suspected of being buried in a two-acre yard in Medfield. But Peggy Greenbaum, the mother of the spammer known as Davis Wolfgang Hawke, told the Associated Press that the family doesn't believe any such gold or platinum bars are buried in the yard.

'I don't care of they dig up the entire yard,' she told the AP. 'They're just going to make fools of themselves. We certainly wouldn't allow him to put any gold on our property.'

Hawke, who has used different names in the past, lost a court case to AOL, which won a $12.8 million judgment. Law enforcement authorities say they have not been able to contact him recently and that he missed a court date.

In its case before the U.S. District Court in Virginia last year, AOL produced receipts traced to Hawke for large purchases of gold and platinum. He made a fortune marketing penis enlargement pills and other e-mail spam over the Internet."

Not much blogging going on

I've been working too much and spending too much time taking care of the invalid dog, who sure is bundle of energy for such a lame beast. She will pace around the house, falling down here and there, for an hour or two, until it is time for her breakfast at 4 am, after which she (and I) go back to sleep.

She gets a lot of dog cookies. We might be on our last box of them, but I've thought that for the last 15 or 20 boxes. She can't do it like Waldo's dog, but she will go after a cookie at top speed, such as it is. She can mostly see where the cookies go, but I wouldn't hold my thumb out too close to her when she is thinking there still might be a cookie around some where.

Local Government Attorneys of Virginia fall meeting in Roanoke

This year, the fall LGA meeting is in Roanoke.

I'm not sure, but I think the fall meeting was also there in 2001, not long after 9/11, and that was one of the best conferences I ever attended. There was a party at the house of the then-mayor, up on Mill Mountain, with a strange, fog-shrouded view of the lights of Roanoke. There was a Civil War lecture from that other Virginia Tech civil war guru, contrasting how Jefferson Davis and John C. Breckinridge dealt with the closing days and immediate aftermath of the Civil War. There was a fair-sized delegation from far Southwest Virginia, including Dean Foster, Karen Mullins, and Nancy Dickenson. And, the law lectures were good as well.

The mayor of Roanoke at that time, a fellow named Smith, was apparently a bit of a Civil War buff, and so he had a painting above the fireplace of a Civil War general from Virginia with a white beard, and the general in the painting looked quite like this Roanoke lawyer, who was also in attendance at the meeting.

Scary

Ray Ward picks up on my comment to his post about celebrity mugshots.

Speaking of NOLA law bloggers, Ernie linked to this provocative post about a trumpet player in an empty, destroyed neighborhood.

How to read a judicial opinion

Orin Kerr explains it.

That's not exactly how I read an opinion, half the time I look to see whose on the panel, who were the lawyers, who was the trial judge, who wrote the opinion - then maybe get around to the facts and the law.

Why the ABA should vote no on the Signing Statements Report

Reasons why the ABA should reject the Signing Statements Report:

1. The ABA should not be expressing its views on such matters in the first place.

2. The report makes a hash of it, as even Professor Tribe can see.

USA Today takes the Crooked Road

Via Blue Ridge Muse, here is an article from USA Today on the Crooked Road.

Tiger Woods gets win No. 50

Tiger Woods finished with a birdie to win the Buick Open by three strokes at 24 under par. It was his 50th win as a professional.

For the week, he had rounds of 66-66-66-66. That's freaky.

City councilman looks likely to lose federal court challenge to city's limits on prayers at council meetings

The Fredericksburg paper reports here that Judge Spencer of the E.D. Va. doesn't think much of the arguments raised by a Fredericksburg city council member who wants to pray any way he likes when it is his turn to open city council meetings.

I don't guess the plaintiff/councilman will get to vote when the council decides whether to instruct its lawyers to go after him for attorneys' fees under 42 U.S.C. 1988.

Which is more hostile and abusive toward Native Americans?

You can read Richard Williamson's brief to the NCAA on behalf of the College of William & Mary right here. Nevertheless, the NCAA ruled against the College on the use of its logo earlier this week, as reported here.

MeadWestvaco sues Buena Vista for $7 million over cancelled land deal

The Roanoke Times reports here that the big paper company has filed suit after the city changed its mind on whether to give land in an industrial park as part of an industrial development deal.

Perhaps the City will argue that the land give-away was illegal in the first place, and therefore the contract is not enforceable. Local governments are not protected by sovereign immunity from liability for breach of contract. They are, however, not generally estopped from arguing that the contracts they themselves made were illegal or ultra vires.

The Vermont Supreme Court ruling in the same-sex couple's custody case

Here is the opinion from the Vermont Supreme Court in the custody case being fought in Virginia and Vermont courts between two women.

The Court ruled that the Virginia court lacked jurisdiction under Vermont law. That is a strange-sounding sentence, but evidently necessary to the conclusion that the Vermont courts are not bound by the ruling of the Virginia court.

The Court observed: "Whether Virginia must enforce the Vermont visitation order is not directly involved in this appeal, but that is an entirely different question from whether full faith and credit requires the Vermont court to strike its own visitation order because the Virginia court refuses to recognize its validity based entirely on Virginia law."

The case turns in part on a federal law, the Parental Kidnapping Protection Act, 28 U.S.C. § 1738A. The presence of this federal statutory question might enhance the prospect for ultimate review by the U.S. Supreme Court, if the dispute continues long enough.

Ironically, concerns about "full faith and credit" are said to underly such initiatives as the same-sex marriage amendment on the ballot in Virginia this November, to make it less likely that Virginia courts will be bound by the decisions of courts in other states, such as Vermont - and in this case involving a Virginian the Vermont court refused to give "full faith and credit" to the decision by the Virginia court based on Virginia law.

The AP has this article about the decision.

On two monitors

The last time I was at the federal courthouse in Big Stone Gap, or sometime lately, I saw that Libby Sharp had two LCD monitors on her desktop. Wow, I said.

This week, Technolawyer linked to this NY Times story and this Microsoft research report on the productivity gains to be realized from using two screens at one time.

Tennessee appellate judges all get re-elected

From the TBAtoday:

"Despite organized efforts to target the defeat of two members of the Tennessee Supreme Court and members of the intermediate appellate courts, all judges were returned to the bench by unprecedented margins. TBA President Larry Wilks pronounced himself 'pleased, but not surprised' with the wisdom of Tennessee voters. 'The election was not only an endorsement of the performance of the individual judges, but also a vote of confidence in the Tennessee Plan for merit selection, evaluation and retention of our appellate bench,' said Wilks.

The campaigns by the Tennessee Medical Association, Tennessee Right to Life, TeamGOP and a Knoxville property rights group, as well as a voter guide put out by the Family Action Council of Tennessee appeared to have little if any effect on vote totals which approached 75 percent for retention. The TBA urged voters to consider the performance evaluation recommendations of the Tennessee Judicial Evaluation Commission set up under the Tennessee Plan when making their yes/no selections.

Meanwhile, the debate in several of the trial, general sessions and local judicial elections was also influenced by TBA's Fair Judicial Campaign Code of Conduct, which asked judges not to commit on how they might rule in specific cases."

Penny White is still the only appellate judge from Tennessee not to be re-elected.

On the Plaintiff's Motion to Compel Acceptance of Lunch Invitation

Via the Instapundit, here is the ruling of an Arizona trial court.

The opinion begins: "The Court has rarely seen a motion with more merit. The motion will be granted."

The opinion goes on to address the plaintiff's proposed amended complaint: "Plaintiff’s proposed amended complaint is 56 pages long and has 554 separately numbered paragraphs. It contains 19 counts. It is prolix and discursive in the extreme."

Powerful words on sentencing from Judge Young

That Judge Young in Massachusetts is one I'd go to hear speak, on about any subject.

Via AL&P, here is what he wrote at the beginning of U.S. v. Kandirakis:

"For seventeen years federal courts had been sentencing offenders unconstitutionally. Think about that. The human cost is incalculable -- thousands of Americans languish in prison under sentences that today are unconstitutional. The institutional costs are equally enormous -- for seventeen years the American jury was disparaged and disregarded in derogation of its constitutional function; a generation of federal trial judges has lost track of certain core values of an independent judiciary because they have been brought up in a sentencing system that strips the words 'burden of proof', 'evidence', and 'facts' of genuine meaning; and the vulnerability of our fair and impartial federal trial court system to attack from the political branches of our government has been exposed as never before in our history."

Avoiding speedy trial violations in the W.D. Va.

Chief Judge Jones of the W.D. Va. entered a new standing order in June that says theree will be no continuances unless the i's are dotted and t's are crossed such that it can be done without running afoul of the Speedy Trial Act.

Welcome, Ken Lammers

Belatedly, I am noting here that CrimLaw's Ken Lammers has decided to join up with Chad Dotson's office as an assistant Commonwealth's Attorney for Wise County.

Interestingly, he says his practice representing indigent defendants was done in by jury trials and appeals. In civil cases, the lawyer getting paid by the hour at market rates by the hour does not go broke working on jury trials and appeals.

Commentary on vacant Fourth Circuit seats

The Richmond paper opines that Fourth Circuit nominee William J. Haynes, II, should withdraw his name because he probably won't be confirmed, and make way for some deserving Virginia lawyer or judge.

Professor Tobias in the Roanoke paper opines here that President Bush should ignore the senators from North Carolina and name another deserving Virginia lawyer or judge to the seat opened by the resignation of Judge Luttig.

Who would not agree that the Fourth Circuit needs two more deserving Virginians?

This could be trouble if the city manager ever sees my office

According to the Washington Times, a federal judge in the E.D. Va. has dismissed the lawsuit filed by an evictee against Arlington County for being evicted from his condo for hoarding too much stuff.

The article says in part:

"Dr. Sam Shipkovitz, who also has a law degree, was evicted by county authorities in Arlington after finding the crammed condo owned by his friend posed a fire hazard, reports The Washington Post. Shipkovitz claimed in his federal lawsuit the Arlington County hoarding task force had violated his civil rights.

Sparklehorse

One of the RVA blogs points out that the band Sparklehorse (and see this site, too) has a MySpace page.

Scott Minor of Sparklehorse is my first cousin.

Nerves operate at better than dial-up speed

According to this interesting Slashdot post, the connection between your eyes are your brain works at approximately 10 MB Ethernet speed.

Funny enough for a quick mini-resurrection of HOWT

From the mind at HOWT, this pro se notice of appeal is one for the books.

The Farmersville connection

I'm informed that the ultra-hormonal Tour de France champion of the moment, Floyd Landis, is from Farmersville, PA.

When I was 18, I went and voted for the first time ever on the premises of the Farmersville Fire Company. Alas, I'm not really sure how to get there, any more - some place between Leola and Ephrata and not far from Brownstown. This old map of West Earl Township didn't help much.

What I'll be watching Sunday night

Inspector Morse is dead, but Inspector Lewis comes alive for the first time on Sunday's Mystery!

Surely between the three showings I'll catch the whole thing.

On Salem and the Voting Rights Act

Rick Hasen links here to a press release that says this:

"On July 26, 2006, the same day that President Bush extended the special provisions of the Voting Rights Act for another 25 years, a three-judge federal court in Washington, DC, approved the City of Salem’s request for a bailout from coverage under the Voting Rights Act. Salem becomes the eleventh local government to obtain a bailout since 1996.
The bailout means that Salem will no longer be required to submit any of its voting changes to the Justice Department for preclearance review, and will give local election officials greater flexibility in making voting and election changes that will assist voters.
J. Gerald Hebert, an attorney in Alexandria, Virginia, who handled the City of Salem’s case, noted that the City had demonstrated a solid record of compliance with all provisions of the Voting Rights Act, thus making it eligible to receive the bailout. He applauded officials in the City, particularly the City’s General Registrar of Voters, Ms. Dana Oliver, for operating a voter registration and election administration office that made it easy to establish the City’s bailout eligibility.
Hebert has represented all eleven Virginia jurisdictions that have obtained bailouts. Hebert added that he thought more local governments would likely pursue bailouts in the future, especially now that the Act has been extended and the bailout provisions remained unchanged. Hebert said: state and local governments that believe they are eligible to bailout should do so because it is easy to do if there is equal opportunity to participate in all aspects of the voting and electoral process. It’s also affordable and cost-effective.”

What happens to a lawsuit when a constitutional office changes hands?

In King v. McMillan, Judge Wilson ruled that a civil rights lawsuit brought against Sheriff McMillan in Roanoke continued against his successor to the extent he was sued in his official capacity.

In a footnote, the opinion notes: "The court recognizes that there is conflicting precedent within the Fourth Circuit concerning whether McMillan in his individual capacity can be held liable under Title VII. In Paroline v. Unisys, 879 F.2d 100, 104 (4th Cir. 1989), vacated in part and rev’d in part on other grounds per curiam, 900 F.2d 27 (4th Cir. 1990) (en banc), the Fourth Circuit held that employees in supervisory positions with “significant control” over “hiring, firing, or conditions of employment” can be held personally liable under Title VII. Id. at 104. However, later in Lissau v. Southern Food Serv., 159 F.3d 177, 180-81 (4th Cir. 1998), the court held that Title VII creates no cause of action against supervisors in their individual capacities. Lissau,159 F.3d at 180-81 (stating that the Civil Rights Act of 1991 does not “mention individual liability as an available remedy” and that Title VII’s “remedial scheme seems so plainly tied to employer, rather than individual, liability”). Although the Fourth Circuit has not expressly overruled Paroline, other courts have held that the Fourth Circuit has impliedly overruled Paroline. See Jones v. Tyson Foods, Inc., 378 F.Supp. 2d 705, 708 (E.D. Va. 2004) (stating that the Fourth Circuit Court of Appeals “overruled Paroline . . . with its decision in Lissau” and noting that “every district court in Virginia to rule on the issue [whether supervisors are individually liable for violations of Title VII] has also followed Lissau”). This court believes it is compelled to do so, as well."

I'd say that's right.

In another interesting footnote, the opinion says this:

"Although Johnson presents this issue as a question of whether she is McMillan’s 'successor' under Rule 25(d), the issue is more accurately framed in terms of whether King has properly named the Office of Sheriff of the City of Roanoke as her “employer” under Title VII. Only employers are liable for Title VII violations. Lissau v. Southern Food Serv., 159 F.3d 177, 180-81 (4th Cir. 1998). A sheriff in his or her official capacity, assuming that he or she has more than fifteen employees, is subject to suit as an “employer” within the meaning of Title VII. See Briggs v. Waters, 2006 WL 1982758, *2 (E.D. Va. 2006) (stating that Title VII plaintiff’s “employer” was the “Sheriff’s Office” not the former sheriff in his individual capacity, who was the plaintiff’s supervisor at the time of alleged Title VII violation); Partington v. American International Specialty Lines Ins. Co., 443 F.3d 334, 339 (4th Cir. 2006) (stating that “[u]nder Title VII, the term ‘employer’ is defined to include persons that have at least fifteen employees”). Here, the Office of Sheriff of the City of Roanoke is the statutory “employer” under Title VII and, thus, is liable for King’s Title VII claims. Accordingly, McMillan in his official capacity was a proper defendant at the time King filed this action, and when Johnson succeeded McMillan as the Sheriff of the City of Roanoke, she became liable in her official capacity. See Briggs v. Waters, 2006 WL 1982758, *2 (E.D. Va. 2006) (dismissing a Title VII claim against the former Sheriff of Portsmouth in his official capacity, holding that “[b]ecause [the former Sheriff] no longer holds the office of Sheriff, he does not have an official capacity in which he can be sued” and dismissing a Title VII action against the former Sheriff in his individual capacity because “Title VII creates no cause of action for a claim against a supervisor in his individual capacity”)."

Judge Wilson is probably right on the main point of the opinion, but it is an interesting question, with some arguments to the contrary. Constitutional officers are sort of anomalous entities in Virginia law, but Judge Wilson concluded that the state law vagaries were irrelevant.

What's the ABA up to in Hawaii?

Supposedly, you can keep up with this year's annual meeting by way of this site.

The other way might be to ask the VBA's Ted Ellett after he gets back.

Insanity defense to be asserted in Bristol murder case

The Roanoke Times reports here that defense lawyers from the Capital Defender Office for Western Virginia plan a defense of insanity in the case of the Bristol, Virginia woman who drowned her child in the bathtub.

The Bristol paper is in litigation with the City regarding the woman's 911 call regarding the crime.

This article comes shortly on the heels of news of the verdict in Texas on the retrial of Andrea Yates, on which a Houston columnist has some observations here.

On a Richmond law blogger

This article from Style Weekly says "Personal-injury attorney [Joel] Bieber, well-known for his ubiquitous television ads, has become perhaps the first attorney in Richmond to write a legal blog."

That's balderdash. Ken Lammers and Jaded JD were at it long before. Of course, now Jaded JD has since fled the jurisdiction for a blue state.

The article goes on: "Writing blog entries, Bieber says, 'shows youÂ?re an attorney of substance.'"

I must be more substantive than I thought, having written 5,000+ blog entries. It's a wonder I can get from here to the refrigerator.

Fourth Circuit overturns guilty pleas as involuntary due to judge's excessive role

In U.S. v. Bradley, the Fourth Circuit in an opinion by Judge Motz, joined by Judges Gregory and Duncan, reversed the convictions entered on the guilty pleas of three defendants, concluding that the trial judge stepped over the line in encouraging the defendants to plead and therefore the pleas were involuntary.

Is it ethical to tell anyone you are a Virginia Super Lawyer?

In New Jersey, the legal ethics police have declared it unethical to publish one's listing as a "Super Lawyer."

This article, via law.com, notes that there was a similar snafu in Virginia about lawyers identifying themselves as listed among the "Best Lawyers in America," which resulted in a federal court ruling against the Virginia State Bar and then the settlement vaguely described here.

Here marketeer Larry Bodine weighs in that the New Jersey opinion is "stupid."

Are federal judges acquittal-prone?

Via the Volokh Conspiracy and this Rocky Mountain News article, I was intrigued by this study which concludes that federal judges are more likely than federal juries to acquit criminal defendants.

I recollect sitting in on part of a federal criminal trial before Chief Judge Jones, which ended in an acquittal, and some generic discussion afterwards with one of the lawyers about how did they make the call for a bench trial - without the benefit of this particular article.

Interesting interview with Judge Kozinski

Via Crime and Federalism, Reason has this great interview with Judge Alex Kozinski of the Ninth Circuit.

Fourth circuit nominees news

Again according to Howard Bashman, the ABA has lowered its rating on Judge Boyle.

The Washington Times has this editorial and Powerline has posts here, here, and here, in support of confirmation of nominee William J. Haynes, II.

Maybe Justice Kennedy can't make up his mind

Howard Bashman has this quote from the Onion: "The Supreme Court's third 5-5 vote in the past month has some justices wondering whether one of their number is voting twice."

Warming up for the fall caption contest season

We were the winners of the most recent Commonwealth Conservative caption contest, which evidently was No. 48, and that brings me into a tie with Tiger Woods, who has also won ten "majors." It appears, however, from this morning's performance, that he will win again before I do.

New York Times opposes confirmation of Haynes to the Fourth Circuit

In this editorial, the NYT opposes confirmation of William J. Haynes II to the Fourth Circuit.

The editorial says in part: "It is disturbing that while low-level soldiers have been convicted for their actions at the Iraqi prison, Mr. Haynes has been rewarded with a coveted judicial nomination."

Do all the famous bloggers leave their big laws?

First, Bashman, then Ernie, now Denise.

I didn't realize how far ahead of the curve I was, because I never worked for a big firm (unless you count my summer in law school with this bunch) - but I admire many, many big firm lawyers and steal the knowledge from them every way I can.

Roanoke lawyer story

In this account of the life and times of Roanoke lawyer Jack Kennett, the following tale is told:

The story is legendary in Roanoke law circles.

During an appeal hearing on a minor traffic conviction, John "Jack" Kennett Jr. represented himself. As the hearing proceeded, he started to perform his own cross-examination. He would ask himself a question, then walk over to the witness stand, sit down and reply.

He kept it up until he asked himself a very long question. Then he sat in the witness stand and responded, "Could you repeat that?"

At which point the judge had had enough and dismissed the case.

Roanoke Times opposes confirmation of Fourth Circuit nominee Haynes

The Roanoke Times editorializes here:

"The policies advocated by Haynes stretched the boundaries of U.S. law and international treaties, stained this nation's human rights record and provided valuable recruiting material to terrorists around the globe. . . .

As the retired officers wrote, 'America's commitment to the Geneva Conventions is grounded not only in battlefield experience, but also in the moral principles on which this country was founded.'

Any progress made toward reclaiming those moral principles signaled by Bush's grudging acknowledgment, coerced as it was by the U.S. Supreme Court, would be erased if Haynes is confirmed to a seat on the federal bench.

What happens when plaintiff and defense lawyers meet in same town, at same time

Here is the agenda for the VTLA Solo and Small Firm conference set for October 19-20 in Williamsburg at The Lodge.

Here is the agenda for the VADA annual meeting set for October 18-20 in Williamsburg at the Marriott.

I haven't set the two side-by-side but hopefully not all the good stuff is scheduled at the same time, because I might go to part of each. Maybe I'll just follow Steve Emmert as he goes from one to the other.

Would Virginia's proposed same-sex marriage amendment pass muster under the federal constitution

Today the Eighth Circuit ruled in Citizens for Equal Protection v. Bruning that a district court erred in holding that the same-sex amendment to the Nebraska constitution was unconstitutional.

The language of the Nebraska amendment is perhaps more open-ended that proposed amendment in Virginia, as it provides:

"Only marriage between a man and a woman shall be valid or recognized in Nebraska. The uniting of two persons of the same sex in a civil union, domestic partnership, or other similar same-sex relationship shall not be valid or recognized in Nebraska."

The proposed Virginia amendment provides:

"That only a union between one man and one woman may be a marriage valid in or recognized by this Commonwealth and its political subdivisions.

This Commonwealth and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance, or effects of marriage. Nor shall this Commonwealth or its political subdivisions create or recognize another union, partnership, or other legal status to which is assigned the rights, benefits, obligations, qualities, or effects of marriage."

The similarity between these two amendments is the use of the word "other" leaves open their potential breadth of application.

Besides the briefs of the appellants (here and here) and the brief of the appellees, many amicus briefs were filed in the Nebraska case, and in the Eighth Circuit briefs are posted online, so here are a few worth reading:

Supporting the appellants in arguing the amendment is constitutional -

ACLJ
Alliance for Marriage, Inc.
Eleven States (IN, AL, AR, CO, FL, KS, MI, MO, ND, SD, TX)
Focus on the Family and Family Research Council
Liberty Counsel
The National Legal Foundation
Nebraska Family Council
Some law professors (including a couple from Regent, but nobody famous)
Some Nebraska legislators
Thomas More Law Center
United Families International

Supporting the appellees in arguing the amendment is unconstitutional -

American Psychological Association
The National Association of Social Workers
PFLAG
A Nebraska lawyer

I must confess that I don't know much about the judges of the Eighth Circuit, and didn't recognize the names of any of the judges on the panel, so I looked them up. One was Chief Judge Loken, who wrote the opinion. According to his FJC biography, he went to Harvard Law, clerked for Justice White, worked in the Nixon White House, and was appointed by President George H.W. Bush. Another member of the panel is Pasco Middleton Bowman II, of whom it says here that he was born in Virginia, graduated from Bridgewater College and U.Va. Law, and served as dean of the law schools at Wake Forest and UMKC. (If you google Judge Bowman, you discover quickly the name of his most famous (or infamous) law clerk.) The third member of the panel is Lavenski Smith, of whom it says here that he was born in Hope, Arkansas, got his two degrees from the University of Arkansas, went to worked for four years as a legal aid lawyer in Northwest Arkansas, served briefly on the state Supreme Court, and was appointed by President George W. Bush. Judge Smith was confirmed by a vote of 93-3, with only Senators Wellstone, Feinstein, and Dayton opposed.

When the questions run too deep

Via Howard Bashman, I read this delightful dissent from the denial of rehearing in the Ninth Circuit case of Amalgamated Transit Union v. Laidlaw Transit Services.

The dissenters reject what they call the majority's rule of "illogicality," in determining that Congress meant "more" when it wrote "less" in 28 U.S.C. § 1453(c)(1), which says the time for appealing a ruling on class certification is "not less than 7 days after entry of the order."

"Fail not at your peril."

I was just looking at a subpoena that concludes, "Fail not at your peril."

Evidently, subpoenas used to always say that.

I can guess what it means, but it seems like a strange bit of usage to me.

Some guy named Steve posted this:

"Back in the good old days, when courts were allowed to inflict cruel and unusual punishment willy nilly, a subpoena concluded with the legend: 'HEREIN FAIL NOT AT YOUR PERIL.' The recipient was left to imagine what might happen to one who ignored such an order from a court. Whatever that consequence might be, it was sure to be painful, hence the name 'sub poena' meaning 'under pain.'"

Should I get this for Dad or for Eli?

It says here that Frank Beamer has a new Virginia Tech football book for kids, titled "Yea, It's Hokie Game Day!"

Judge Boyle's letter

Here Howard Bashman has posted the letter Fourth Circuit nominee and current Chief Judge Boyle of North Carolina wrote to the Chairman of the Senate Judiciary Committee, acknowledging that a few small items snuck past his conflict checking system.

Judge Boyle wrote in part:

"I can state categorically and truthfully that I have never accepted or maintained a case assignment, whether civil or criminal, while knowing that I had an actual or apparent conflict of interest. Over the course of my twenty-two years of service as a federal district judge, during which time I have presided over more than 16,000 cases, I have taken my duties seriously and have strived to observe the judicial canons and ethics rules, including those on conflicts of interest. Never during my tenure as district judge have I received a complaint or a question from any party suggesting that I may have had a financial conflict in a case."

Good news, bad news

The good news is you can see my name in this column by Christian Trejbal in today's Roanoke paper, cited as if I were some kind of legal expert.

The bad news is that it appears that my areas of expertise are sodomy and fornication.

Fred, you were the man

I've just read this remarkable obituary from, of all places, the Richmond Times-Dispatch.

It concludes:

"He died at MCV Hospital and sadly was deprived of his final wish which was to be run over by a beer truck on the way to the liquor store to buy booze for a double date to include his wife, Rush Limbaugh and Ann Coulter to crash an ACLU cocktail party. In lieu of flowers, Fred asks that you make a sizable purchase at your local ABC store or Virginia winery (please, nothing French - the *censored*) and get rip roaring drunk at home with someone you love or hope to make love to. Word of caution though, don't go out in public to drink because of the alcohol related laws our elected officials have passed due to their inexplicable terror at the sight of a MADD lobbyist and overwhelming compulsion to meddle in our lives. No funeral or service is planned. However, a party will be held to celebrate Fred's life. It will be held in Midlothian, Va. Email fredsmemory@yahoo.com for more information. Fred's ashes will be fired from his favorite cannon at a private party on the Great Wicomico River where he had a home for 25 years. Additionally, all of Fred's friend (sic) will be asked to gather in a phone booth, to be designated in the future, to have a drink and wonder, 'Fred who?'"

Oops, Chad beat me to it. So did The Corner. So did all the other blogs listed here.

The Haynes hearing

Here are articles on yesterday's hearing before the Senate Judiciary Committee on the nomination of William J. Haynes, II, to the Fourth Circuit:

Raymond Hernandez, New York Times, Bush Nominee Tries to Calm Torture Furor

"The hearing came a day after 20 retired military officers sent the Judiciary Committee a letter saying that they had 'deep concern' about Mr. Haynes’s fitness to be a federal judge because of his role in approving coercive techniques to interrogate terror suspects.

Speaking to reporters, Senator Harry Reid of Nevada, the Democratic leader, indicated that the letter had deeply influenced his thinking, declaring that the letter 'says it all' about Mr. Haynes.

Mr. Reid signaled that the nomination was in serious trouble, though he did not say Democrats would try a filibuster if it came before the full Senate for a vote. Sixty votes are needed to end a filibuster....

The controversy over the nomination of Mr. Haynes stems from memorandums he wrote or supervised that secretly authorized harsh treatment, even torture, for detainees at Guantánamo Bay, Cuba, and in Iraq.

In the hearing, Mr. Haynes distanced himself from the so-called Bybee memorandum, which narrowly defined torture and asserted that a president could ignore prohibitions against it in the name of national security.

The memorandum, which has been disavowed by the Bush administration, was written in 2002 by Jay S. Bybee, a Justice Department official who has since become a federal appeals court judge. It had not been publicly disclosed when Mr. Haynes was first questioned by the Judiciary Committee in 2003."

Charles Lane, Washington Post, GOP Senator Criticizes Appeals Court Nominee

"A key Senate Republican clashed yesterday with President Bush's pick for a federal appeals court, taking aim at the nominee's past support for harsh interrogation methods at the U.S. prison camp in Guantanamo Bay, Cuba.

At a Judiciary Committee hearing, Sen. Lindsey O. Graham (S.C.) said that Pentagon General Counsel William J. Haynes II had pushed for the tactics over the objections of top uniformed military lawyers who considered the policy process a 'sham.'

The result, Graham told reporters after the hearing, was 'legal confusion' that contributed to the scandal at Iraq's Abu Ghraib prison -- and the attendant courts-martial and other career damage for those held responsible. . . .

With Democrats united against Haynes, Graham's position is crucial because without his support Haynes could have a hard time getting out of the Judiciary Committee, which has 10 Republicans and nine Democrats. Graham is also one of the Senate 'Gang of 14' that has agreed to oppose filibusters of judicial nominees except in 'extraordinary circumstances.'"

Thomas Ferraro, Reuters, Bush judicial nominee struggles to win Senate OK

"Sen. John McCain, an Arizona Republican, said he was awaiting a response from Haynes to a recent letter he sent him. 'I'm not blocking it (the nomination), but I have questions,' McCain said."

Laurie Kellman, AP, Haynes Fights to Save Judgeship Nomination

"Haynes' nomination was not clear of trouble.

Chairman Arlen Specter, R-Pa., said afterward he had not yet decided whether to vote for Haynes' confirmation. And Reid cited a letter by 20 retired military officers strongly opposing sending Haynes to the court in Richmond, Va.

Three Republican members of the so-called 'Gang of 14' senators, who have significant say in whether controversial nominations survive, also have expressed concern about Haynes' nomination. They are Sens. Lindsey Graham of South Carolina, John McCain of Arizona and Susan Collins of Maine."

Charles Hurt, Washington Times, Democrats likely to filibuster nominee

"While Mr. Haynes was outright condemned by Democrats on the panel, his sparring with Mr. Graham was the sharpest as the senator tried to determine how involved Mr. Haynes was in the original policy memos.
Later, outside the hearing room, Mr. Graham dodged reporters' questions about whether he could support the nominee.
'Actions have consequences,' he said.
Further complicating the situation is that Mr. Graham is among the so-called 'Gang of 14' senators -- seven Democrats and seven Republicans -- who have made a pact to prevent filibusters except in the case of 'extraordinary circumstances.' In return, Republicans such as Mr. Graham promise not to go along with the 'nuclear option' unless Democrats lodge a frivolous filibuster.
After his dust-up with Mr. Haynes at yesterday's hearing, Mr. Graham declined to even rule out that Mr. Haynes poses the 'extraordinary circumstance' that would warrant a filibuster."

Richmond Times-Dispatch, Hearing stormy for judicial nominee

"President Bush's pick of William James Haynes II for the Richmond-based federal appeals court faces an uncertain future after a stormy nomination hearing yesterday.

Two Democrats blistered Haynes, the Pentagon general counsel, over his role helping shape Bush administration policies on treatment of enemy detainees, and one Republican senator sharply questioned Haynes' role too....

Haynes also was asked about a letter signed by a group of retired military officials. It voiced 'profound concern' about Haynes' role, going 'over the objections of uniformed military lawyers,' in setting policies 'which led not only to the abuse of detainees in U.S. custody but to a dangerous abrogation of the military's long-standing commitment to the rule of law.'

Haynes got a copy of the letter from Sen. John W. Warner, R-Va., who with Sen. George Allen, R-Va., introduced him to the committee. Haynes took issue with the assertion. He said he thought he had worked with only two of the 20 signers of the letter, although he hadn't studied it closely."

Federal court challenge to blog ban for Kentucky state employees

The Kentucky Law Blog posts here and here regarding the lawsuit filed to challenge the ban on Kentucky state employees reading blogs critical of the Governor.

Fourth Circuit nominee Haynes before committee again today

The Richmond paper has this report that says William J. Haynes will have his second hearing before the Senate Judiciary Committee today.

On the passing of Tom Fletcher of St. Paul

The Roanoke paper reports here ("Former UVa, Virginia Tech aide dies," July 11) on the passing of Tom Fletcher, whom I've met a time or two somewhere along the line.

Environmental protesters stage event outside Russell County power plant

According to this AP report, some demonstrators demonstrated against the coal power at the Clinch River plant, of which one of them declared: "The Clinch River facility is a symbol of all that is wrong with King Coal."

Bristol makes Wonkette

Wonkette ran with this photo from the sesquicentennial:

Governor Kaine pardons witch

The Norfolk paper has this story here and the AP has this story, about the Governor's decision to reverse the 1706 conviction of the Witch of Pungo.

Southern Virginia fiber-optic network nears completion

From the Martinsville paper:

"Broadband ring nears completion

By SHAWN HOPKINS
Bulletin Staff Writer

Construction of a more than 700-mile ring of fiber-optic cable in Southside is nearly complete, and those who are building it say it will bring more options and greater reliability to area telecommunications.

"We are as of today about 99 percent completed with the fiber project," said Tad Deriso, general manager of the Mid-Atlantic Broadband Cooperative, on Friday.

The cooperative is a $27 million project funded by the Virginia Tobacco Commission and a grant from the economic development administration arm of the U.S. Department of Commerce. The project is intended to create an "open access" fiber-optic network that can be used by telecommunications companies which join the cooperative.

The fiber optic ring extends across the bottom of Virginia, from Patrick to Sussex counties, and as far north as Appomattox and Buckingham counties. The cooperative currently has 18 members, but more are interested in joining, Deriso said. He said the city of Martinsville's Mynet program is submitting an application to become a member. City officials could not be reached for comment.

Deriso said the project has about two more miles of fiber to link. That is in the Patrick County/Stuart area, and it should be finished within 30 days, he said.

"We're kind of going from construction into operations," he said.

When the fiber-optic network is complete, the cooperative will sell access to the network on a wholesale basis to other companies which will provide services to their customers. It will not provide services itself, but the Tobacco Commission is considering the possibility of trying to provide the "last mile," or the connection from the backbone network to people's homes.

"This project was never designed to be a last mile," Deriso said, but that might change as the commission examines options to provide those final connections.

"The commission realizes there's a real big need to get broadband (in some areas)," he said.

The Tobacco Commission's site describes the project as an economic revitalization effort, providing needed infrastructure. But Deriso said there also may be some more immediate benefits for consumers.

With the network in place, he said, there should be more redundancy and reliability. For instance, a recent cut in Sprint's fiber-optic cable, caused by contractors who were laying cable for the Mid-Atlantic Broadband Cooperative, would not have caused such a lengthy phone outage if the Sprint was a member of the cooperative network and had access to the redundant fiber, Deriso said.

The open-access network also should provide a more competitive business atmosphere, he said, which could lower costs for consumers.

"Because you do have options and choices now, competition and the free market's going to take care of that," he said.

The network can provide more than just Internet and voice communication, Deriso said. It also can be used to transmit television signals from a distant "head end," a place where the signals are received from satellite and over the air to another community. This would mean the community receiving the signals would not have to build its own head end.

To give an idea of how much bandwidth the network can handle, Deriso said that if every man, woman and child in the city of Martinsville had a DSL connection and was running it at the same time, it would account for about 5 percent of the available bandwidth."

On U.S. coal imports

The Christian Science Monitor has this article on why the United States is importing more coal now than ever.

The article says in part:

"Coal-fired power plants along the Gulf Coast and East Coast have long imported coal by ship in small amounts. But with transportation costs and the price of low-sulfur coal from central Appalachia and Wyoming rising, US demand is soaring for coal from South America and as far away as Indonesia.

Leaping from 9 million tons to 30.5 million tons in the past six years, US coal imports could jump to 40 million tons this year, government analysts say. And that trend is accelerating as demand for low-sulfur coal grows following last year's federal Clean Air Interstate Rule, a mandate for big cuts in sulfur dioxide emissions from power plants in the eastern US.

At the same time, US coal exports are declining sharply. If present trends continue, the US will be a net importer of coal by 2013, according to the Energy Information Administration of the US Department of Energy. Still, most analysts see little need to worry since vast US reserves mean the US is unlikely to become dependent on overseas coal."

Now, a warning?

It says here that Toshiba America gets an F from the Better Business Bureau.

I've had this Toshiba laptop for less than a month.

Washington Post declares voting on same-sex marriage is just and inevitable

This Washington Post editorial seems to say that the decisions of the state courts on same-sex marriage are irrelevant, one way or the other, because "it's become clear that democratic majorities, not judges, ultimately will decide how evenhanded state marriage laws are going to be. In many states, ballot initiatives have preempted any litigation by amending state constitutions to prohibit same-sex marriage." The editorial also says: "State laws, and even state constitutions, are generally easy enough to change that courts cannot force same-sex marriage on an unwilling populace."

Last night, I saw a fellow on C-SPAN, who was said to be historian of the U.S. Senate, and he was asked something like what Senate floor speech would he most like to have heard, and he cited the speech where Senator Everett Dirksen said of the Civil Rights Act of 1964, "Victor Hugo wrote in his diary substantially this sentiment, 'Stronger than all the armies is an idea whose time has come.' The time has come for equality of opportunity in sharing of government, in education, and in employment. It must not be stayed or denied."

Maybe someday the time will come for the idea of same-sex marriage will come. Maybe it won't. I agree with the Post commentary that it won't come through litigation in state courts alone, because the state law (unlike the federal law and especially the U.S. Constitution) can be changed relatively quickly to undercut unpopular court rulings on a wide variety of issues.