Virginia Supreme Court reversed trial court ruling on evidence in food poisoning case

In Bussey v. E.S.C. Restaurants, Inc., the Virginia Supreme Court in an opinion by Justice Lemons reversed the orders by the trial court overturning the verdict for the plaintiff in a case where she claimed that she suffered food poisoning on account of bad food at the defendant's restaurant (a Golden Corral).

On the lack of medical testing to prove that the plaintiff suffered a bacterial infection, the Court explained: "We have never required positive proof by scientific testing to establish a factual basis for medical diagnosis and opinion."

The AP had this report about the Court's decision.

On Shanna the cow

Here the Roanoke paper had an article about a Hokie Holstein who predicts the outcome and score of Virginia Tech's football games.

The secret about next Tuesday

Here someone identified as the Secretary of the Board of Elections says: "Most people don't even realize there's an election."

Why Alito's the Man

A couple of the Powerline guys got this well-written, simply stated article published in the Washington Post, explaining why it is good thing that Harriet Miers is out and Samuel Alito is in. One thing they point out is this: "The Republican talent pool is deep and broad, in a way that it was not when Presidents Richard Nixon and Ronald Reagan were appointing judges." I certainly agree with that.

They claim that the reason why court nominations have become more contentious is that liberals rely on the courts to overcome the unpopularity of liberal ideas: "Liberals increasingly came to view the court as a legislature of last resort, where policies too liberal and too unpopular to be enacted by real legislatures could be mandated by fiat of the court's liberal majority."

They describe what they claim conservatives want in judges: "We want judges who won't make stuff up," to which they add the corollary, that "judges also don't have the discretion to ignore language that is in the Constitution or the laws," including limitations on the powers of Congress.

They conclude: "The Miers-Alito moment shows that conservatives prefer demonstrated excellence to its absence, openness to stealth, and adherence to constitutional text to the promise of any particular result."

I recommend this article, whether you agree with it or not, as it is well-written.

Why do most Virginia medical malpractice claimants get nothing

In this Richmond paper article from last week, the authors look to explain why is is that "[t]hree out of four medical malpractice cases in Virginia that ended during the past three years brought patients nothing."

New York Times on what to do with coyotes

This article on the NY Times suggests that what we need to do with coyotes is get them a bus ticket to the big city, or at least to the "goose-plagued subdivisions" of the suburbs, which "could use well-mannered, responsible predators."

More on the state of eminent domain law in the Commonwealth

Greg Edwards of the Richmond paper has this interesting article on the state of the law of eminent domain in Virginia, and proposed changes.

I read somewhere the other day, can't recall the source, a prediction that few states would do much in response to Kelo, notwithstanding the many complaints about it.

What happens when Virginia solicitors general argue at the Supreme Court

This law.com story about a light bulb popping during oral argument in the Virginia college bookstore case on Halloween is fun. Once the justices realized what had happened, the chief justice said it was "a trick they play on new chief justices all the time."

Ten non-policy reasons why it is inevitable that I will vote for Jerry Kilgore

There was never any doubt that I will vote for Jerry Kilgore, for reasons like these:

10. When I was a law clerk, Jerry was the resident assistant prosecutor, and he tried the first federal criminal case I ever saw. During that year, the courthouse gang had a birthday party for Jerry, and a dancing gorilla in a bikini was there.
9. Years ago, I had a meeting with Jerry's mom, and she made me laugh. Years later, my wife met Terry Kilgore, and he made her laugh. Virginia, like the Kilgore family, needs a good straight man.
8. Like Jerry, my aunt Lois went to Clinch Valley. So did my friend Will. And my cousin Samatha. My grandma's friend Joe Smiddy was the head man there. I root for all CVC grads.
7. I too was a too-skinny, bookish kid on the high school football team.
6. Some say Jerry never did any work to speak of down on the farm, and neither did I, despite ample opportunities. Even so, I like the look and smell of a Southwest Virginia farm. Virginia needs a governor who knows that fall smells like tobacco hanging in the barn, even if someone else hung it.
5. Jerry was the attorney general. I like to think about attorney general stuff. His office won reversals of fortune (at least in part) against all odds in two famous First Amendment cases before the U.S. Supreme Court, the cross-burning case and the public housing trespass case. Now, those were interesting cases.
4. Jerry gets excited on the Virginia Cavalier post-game show. I'm surprised Waldo never got hold of an audio clip of Jerry talking football with Mac McDonald.
3. I had a Southwest Virginia accent once. I might have one now.
2. We went to the same law school, America's oldest, and a good place. Ask Dawn Figueiras. Or Don McGlothlin. Or Mickey McGlothlin. There ought to be a William & Mary grad sworn in at the inauguration in Williamsburg.
1. My Democrat friends from Scott County always beat me at golf.

Progress through technology

My dad the engineer gets a kick out of the safety warning symbols on products. He once told me with a laugh about his granddaughter examining the illustration on a stepladder and asking, "Papaw, why's that man falling down?" Now, BoingBoing reports on the adorable symbol on the glow-in-dark car trunk release tab.

The criminal defense lawyer's perspective from the Ninth Circuit on last year's Supreme Court term

Here is an excellent report on the last U.S. Supreme Court term, prepared by the public defenders in the Ninth Circuit.

The introduction says:

"In going through the opinions to look for hidden gems, three major themes emerge. First, the protection of core constitutional rights has solidified in a surprising number of cases. Second, the Doctrine of Constitutional Avoidance continues to provide a key analytical framework for federal litigation. Lastly, the Court’s devotion of so much time to the rules of statutory construction emphasizes the need for federal defense attorneys to incorporate them into our litigation vocabulary. The overall message is to hit constitutional issues hard, but layer them with statutory arguments that avoid the necessity of resolving the constitutional questions."

The report says this about the latest qualified immunity case:

"Brosseau v. Haugen, 125 S. Ct. 596 (2004): Separate from the constitutionality of an officer’s use of deadly force against an unarmed felony suspect, the courts had not “clearly established” the right in question, in a particularized sense, to the facts presented to foreclose qualified immunity for the officer.

In another reversal of a Ninth Circuit civil rights case, the Court per curiam found an officer to be protected by qualified immunity. Officer Rochelle Brosseau went to the home of Kenneth Haugen, who was suspected of selling drugs and stealing the tools of a co-worker. When Haugen saw Officer Brosseau approach, he jumped in his Jeep, and ignored the officer’s warnings to stop, even when she smashed a hole in the window of his Jeep. Brosseau shot Haugen in the back as he drove away, and Haugen subsequently filed a suit for damages under 42 U.S.C. § 1983. The Court of Appeals held that Brosseau violated Haugen’s Fourth Amendment rights and also that she was not entitled to qualified immunity.

The Supreme Court reversed only on the qualified immunity question because the law of when an officer may shoot a fleeing suspect was not clearly established with the particularization necessary to apply it to this set of facts. The Court’s holding in Brosseau substantially extends qualified immunity by encompassing excessive force cases where the law has not been previously applied to particular facts. Here, even though past cases had clearly established that officers may only shoot a fleeing suspect who presents a risk to others, the Court held that in this case, “Brosseau’s actions fell in the ‘hazy border between excessive and acceptable force.’” (Quoting Saucier v. Katz, 533 U.S. 194, 206 (2001)). This case includes an echo of the Doctrine of Constitutional Avoidance. In footnote 3, the majority finds no reason to reconsider Saucier’s order of proceeding: 1) first decide
the constitutional question; 2) then decide the qualified immunity question. Justice Breyer, joined by Justices Ginsburg and Scalia, concurred to say that Saucier should be reconsidered because, if the question is iffy enough for qualified immunity, why reach the “difficult constitutional questions when there is available an easier basis for the decision”?"

Why indeed? Because if the difficult constitutional questions never get answered, then the defendants will keep winning every case on qualified immunity.

This report is chock full of good stuff and worth reading even if like me, you have nothing to do with federal criminal practice.

On the literacy of literally

Found by way of this Crescat post, in this Slate piece, a dictionary editor actually and really does take on the word we love to hate: "literally."

Best of the Web - a little bit right here

Welcome, Taranto readers who came by way of the first blush post.

What will be the effect of newspaper endorsements on next Tuesday's Virginia elections?

Back in 1985, I wrote a paper for Larry Sabato's Campaigns and Elections class about the Boucher-Stafford race in 1984, and concluded that the Bristol paper's endorsement of Boucher, seeking re-election for the first time, was a big help to him. Back then, the newspaper was owned by the Worrells, before it was sold to Media General.

Now, the people who write the editorials are not the owners of the newspaper, at least nowhere around here (perhaps they still do it in Winchester), and so in this Washingtonian piece, Larry Sabato is quoted as saying that newspaper endorsements don't carry much clout.

I must confess that I was surprised that the Bristol paper endorsed Kaine instead of Kilgore, the local man, and then endorsed Bolling, noting Bolling's real but more limited SW Virginia roots. Something's wrong with that combination.

Those GI patients are an irate bunch

Here it says of the surprising information presented to a committee studying medical malpractice insurance in the Commonwealth: "Thoracic surgeons, dermatologists and gastroenterologists were the medical specialists who paid the highest average malpractice claims, according to a new state study."

You can't fool Senator Shumer or Colonel Flagg

Sen. Shumer, in today's Wall Street Journal, on Supreme Court nominee Judge Samuel Alito, Jr.: "At first blush, Judge Alito does not appear to be a Sandra Day O'Connor."

Weird spook Colonel Flagg, in a M*A*S*H episode, to Corporal Klinger:

Colonel Flagg: "Hey, up close you are a guy!"
Klinger: "Far away too."

Mr. Patton goes to Richmond

Here Brian Patton relates that when he and the Virginia Supreme Court met, swearing ensued.

One step closer to the Hall of Fame

Here it says we got Win No. 4.333 in Chad's Caption Contest No. 25.

Why I'm not following the Kaine logic on the death penalty

In this post, my fellow Virginia lawyer at Blawg De Novo wrote:

"As a Catholic (and a lawyer), I can tell you Kaine’s logic is very easy to understand. The disconnect appears to be with those who have difficulty understanding the ability to separate the individual religious view from the oath of office, a concept apparently as novel today as it was when it was drafted into the Constitution."

I'm not following the logic, and so I wrote this comment:

"It appears to me that a governor’s oath of office does not require him to 'enforce' the death penalty. To the contrary, under the Virginia Constitution and by statute, the power without limitation to commute a death sentence in any (or every) case is vested solely in the Governor. Va. Code § 53.1-229. If there are substantive limits on the Governor’s discretion, I don’t know what they are, short of malfeasance or corruption that would justify removal from office."

In other words, the point is not that there is a conflict between Virginia law and Mr. Kaine's views on the death penalty, but rather the opposite: the law would empower Mr. Kaine as governor to do whatever he sees fit in dealing with death penalty cases. Certainly, every governor should be vigilant in the exercise of his power of executive clemency. One would expect, however, that a Governor with a categorical objection to the death penalty might be more expansive in his use of that power, in ways that many Virginians might find objectionable.

Heard at the courthouse

Whenever a couple of lawyers have to wait a few minutes in a room together, they started telling stories.

Here's one I heard today, about a case before Judge Glen Williams years ago:

The client worked for a potato chip company. He went to a grocery store and began stocking his goods, when a man came up to him and said, "are you the potato chip man?" The client replied that he supposed he was, in fact, the potato chip man. Without another word, the other man proceeded to hit him over the head.

It turns out, the other man's wife had been in the store earlier in the day and when she came home, she told her husband that "the potato chip man" had pinched her fanny.

What President Bush and Judge Alito said

Here is the text of the remarks by President Bush and Judge Samuel Alito, Jr., at this morning's event.

The President I think made a compelling summary of the points in favor of Judge Alito - top schools, law clerk, veteran, prosecutor, appellate advocate, U.S. attorney unanimously confirmed, court of appeals judge unanimously confirmed, 15 years and hundreds of opinions - "more prior judicial experience than any Supreme Court nominee in more than 70 years," son of an immigrant, husband of a ex-librarian.

Will Judge Brown be invited to join?

Feddie at Southern Appeal says here that he thinks the President will nominate Janice Rogers Brown, which could mean that the nominee will be someone else, as I don't recall that Feddie has nailed any of these picks, unlike Tom Goldstein of SCOTUSBlog, who has guessed right on both Chief Justice Roberts and non-Justice Miers and who says this time it will me Judge Alito.

Professor Berman is also thinking about Judge Brown.

Any how, all that gives me sufficient occasion to repost once again this link to a law school graduation speech by Janice Rogers Brown, with the following introduction, which I find delightful:

"We once welcomed law students by inviting them into the brotherhood. Now, with so many women in the profession that no longer seems right. But, we can certainly understand why our brethren would not wish to be part of a sisterhood. A friend of mine, Justice Vance Raye, came up with the perfect solution. He said, from now on we should just call it the 'hood.' So, let me be the first to welcome you … to the 'hood.'"

Virginia case argued before S.Ct. on Monday

Here the SCOTUSBlog has the lowdown on a Virginia case being argued before the U.S. Supreme Court on Monday, with Virginia's Solicitor General Thro arguing for the Commonwealth, where the issue involves the connection between the sovereignty of the Commonwealth and the supremacy of the nation's bankruptcy laws.

How to fire up Virginia Republicans

Discriminations has this funky post, which suggests that if President Bush nominates a Virginian to the Supreme Court, that would energize Virginia Republicans and help Jerry Kilgore across the finish line.

Certainly, such a nomination would energize those Virginia Republicans who would like to have some say in who might replace Judge Luttig or Judge Wilkinson on the Fourth Circuit.

On juvenile conduct and federal sentencing

Earlier this week, Judge Conrad of the W.D. Va. ruled in U.S. v. Whittington that he could consider for sentencing purposes acts the defendant committed before he turned 18. Even though I'm not experienced in these matters, this sounds like an interesting opinion to me, and Professor Berman evidently agrees.

On the 2004 Annual Report of the EEOC Office of General Counsel

Via this post, I've been reading this EEOC report.

Regarding Hill v. Lockheed Martin Logistics Management, Inc., 354 F.3d 277 (4th Cir. 2004) (en banc), the report says:

The plaintiff, a 57-year-old female aircraft sheet metal mechanic, filed this action under Title VII and the ADEA alleging that she was discriminatorily discharged because her supervisors relied on the reports of work infractions submitted by a biased safety inspector. In an en banc decision, a divided Fourth Circuit rejected the approach urged by EEOC as amicus curiae and held that the discriminatory motives of a subordinate cannot be imputed to an employer unless the evidence demonstrates that the formal decisionmaker essentially "rubber-stamped" a decision, report, or recommendation of the biased subordinate. The majority conceded that an inquiry into discriminatory motives must often go beyond the actions of the formal decisionmaker, recognizing that otherwise employers could "insulate themselves from liability simply by hiding behind the blind approvals, albeit non-biased, of formal decisionmakers." But the majority said that a biased subordinate's motive was irrelevant where the subordinate merely had "a substantial influence on the ultimate decision or . . . played a role, even a significant one, in the adverse employment decision." The dissent said that the majority's position put the Fourth Circuit at odds with virtually every other circuit as well as with the statutory language, "which impose[s] liability when an adverse employment decision is taken 'because of' sex or age discrimination." The dissent would have imputed a subordinate's bias to the formal decisionmaker when a subordinate's sex- or age-based bias "has a substantial or determinative influence on a formal decisionmaker's adverse employment action," because under those circumstances "the causation (or liability) requirement is satisfied."

This opinion fits with some of my writings on the interesting topic of proving motive/causation in cases against a public entity governed by a board or commission.

On the haunting of No. 13 West Range

Friday's Cavalier Daily reprints this story from the CD in 1942 about the spooks in the old Poe Room.

The Libby indictment seems to be simple enough

Well, I read the Libby indictment. It says he lied about to the FBI and the grand jury about his conversations with Tim Russert, Matthew Cooper, and Judith Miller, when he told the FBI and the grand jury that he heard about Ms. Plame's undercover status from reporters. Instead, Libby heard about it from people in the Vice-President's office, where Libby was Chief of Staff. I suppose Cheney, Russert, Cooper, and Miller are necessary witnesses for the prosecution.

I'm guessing that the indictment does not live up to the advance hype - the Bush haters and muckrakers will be disappointed.

What might have done in Judge Karen Williams in the last go round

John Fund wrote here: "One federal judge was nixed by a powerful senator over a judicial opinion that would have been attacked by feminists."

Some commenters thought this reference might be to Judge Williams' opinion in the Ocheltree panel decision - the en banc court upheld the liability verdict but reversed on punitive damages. Others thought it might be Judge Edith Jones' concurring opinion in the McCorvey case.

I suspect, notwithstanding the NY Times article focusing on Ocheltree, that Mr. Fund's reference is to the McCorvey case.

Senator Warner on Miers' withdrawal

Here the AP quotes Senator John Warner of Virginia as saying regarding the withdrawal of the nomination of Harriet Miers to the U.S. Supreme Court: "In effect, she was denied due process by members of her own party."

Perhaps the senators like Warner who thought that Miers was a fine choice will give the rest some trouble over her replacement as the nominee.

The article also quotes the former majority leader from Mississippi, Sen. Lott, as saying: "In a month, who will remember the name Harriet Miers?"

NRC gives notice of intent to terminate the license for U.Va.'s nuclear reactor

Here is the notice from the U.S. Nuclear Regulatory Commission of the termination of the operating license for the nuclear reactor facility that was located at the University of Virginia.

If I understand it correctly, it says the reactor was first operated in 1960 and shut down in 1998.

I wondered when I saw the recent ABC News story about loose security at college nuclear facilities whether there was still an operating nuclear reactor at U.Va.

What kinds of civil litigation gets reported in the Roanoke paper

Exhibit A - This story titled Lively legal fight breaks out over Salem cemetery, about competing boards of directors of a cemetery with a lot of money.

Exhibit B - This story titled Lawsuit filed over stadium expansion, about the first suit filed by a sub-contractor claiming it was not paid for work done on the behind-schedule expansion of the Virginia Tech football stadium that messed up everyone's season ticket seating.

Motion to dismiss granted in wrongful discharge case

In Lucker v. Cole Vision Corp., Judge Turk explained in analyzing the plaintiff's Virginia law wrongful discharge claim that (1) the plaintiff must show either that the employer "violated a statutorily created right by firing him" or the plaintiff "had a statutorily imposed duty which he was fired for refusing to violate," and (2) "either that he was clearly within the public group directly entitled to statutory protection" or that the employer "fired him in retaliation because he refused to engage in a criminal act."

The Court concluded that the plaintiff had no claim based on the Virginia Consumer Protection Act.

On cross-examination

The other day, I was cross-examining a woman regarding her testimony about what she saw out the window of her trailer.

I asked something like, "Was your trailer at a right angle to the other trailer?"

From behing me, I heard the other party murmur to her lawyer, speaking of the witness, "She doesn't know what a right angle is."

Ouch, I thought.

The last Harriet Miers post

In the manner predicted by various bloggers and pundits, Supreme Court nominee Harriet Miers asked President Bush to withdraw her nomination, citing the problem of Senate demands for her papers as White House counsel. Of course, this problem didn't sneak up on her or anyone, particularly since the quest for documents (typically by Senate Democrats) has become the main tactic of opposition to nominations.

The best thing I read about the reaction to the Miers nomination is that it, like the response to the selection of former Vice-President Quayle, shows that standards are higher than they used to be. Sure, history tells us that many popular Supreme Court justices were not appeals court judges or law professors or Supreme Court advocates before their appointment. In the present day, however, there are literally more lawyers and more judges than ever before. The talent pool is deeper than ever before.

Why your dog watches lots of TV and eats Doritos

CSM has this report titled Why your dog is smarter than a wolf about how dogs have mastered the study and imitation of humans.

On failure to provide timely expert witness disclosures

In Saudi v. Northrop Grumman Corp., Judge Wilkinson wrote:

"Rule 37(c)(1) provides that '[a] party that without substantial justification fails to disclose information required by Rule 26(a) . . . is not, unless such failure is harmless, permitted to use as evidence at trial . . . any witness or information not so disclosed.' A district court may also impose 'other appropriate sanctions.' Id. Rule 26 disclosures are often the centerpiece of discovery in litigation that uses expert witnesses. A party that fails to provide these disclosures unfairly inhibits its opponent’s ability to properly prepare, unnecessarily prolongs litigation, and undermines the district court’s management of the case. For this reason, '[w]e give particularly wide latitude to the district court’s discretion to issue sanctions under Rule 37(c)(1).' S. States Rack & Fixture, 318 F.3d at 595 (internal quotation marks omitted)."

Wellington Mara right up there with Harriet Miers

Here the New York Times quotes Frank Gifford, who said of the late Wellington Mara: "For all the years I've known him, and they number more than 40, I've never heard him utter a swear word."

On Saturday, I posted the following:

Here Secretary of Education Margaret Spelling says of Supreme Court nominee Harriet Miers: "I don't think I have ever heard her say a cuss word in the entire time I have known her."

Why they're ordering new spittoons for the White House

Here it is revealed that the secret of Senator George Allen's success is his smokeless tobacco technique.

Why Justice Miers will cancel the Supreme Court's account with Lexis

In this cheeky press release, LexisNexis says more or less that it looks like Harriet Miers might not be the next justice, and they are offering a scoreboard on the number of cases/opinions/stuff on Lexis for various possible candidates to succeed Justice O'Connor:

Harrier Miers, 16
Alice Batchelder, 800+
J. Michael Luttig, 420+
J. Harvie Wilkinson, 720+
Priscilla Owen, 135
Samuel Alito, Jr., 960
Michael McConnell, 230
Larry Thompson, 70
Maura Corrigan, 360
Alberto Gonzales, 800+

What happens if the witness takes the stand and swears he is Napoleon

Years ago, at a hearing before Judge Thomas F. Hogan in the District of Columbia, I heard him ask something like whether on a motion for summary judgment, if the non-moving party swears that he is Napoleon, if the Court has to accept that evidence as true.

This opinion from the Second Circuit suggests that the answer is no, at least not when "“[n]o reasonable person would undertake the suspension of disbelief necessary to give credit to the allegations made in [the] complaint."

On which or that

Ray has this post on an explanation by Judge Traxler, when he was a district court judge, on the different meanings of "which" and "that," in the case of Rhodes v. County of Darlington, South Carolina, 833 F. Supp. 1163, 1191 n.18 (D.S.C. 1992).

ABA can't win on Harriet Miers evaluation?

This article from law.com suggests: "For the ABA's effort to overcome the allegations of bias in its ratings, the Miers assessment may be a lose-lose situation. If Miers is rated well qualified, the bar group will be derided by those conservative stalwarts, such as columnist George F. Will, who have declared her unqualified and an embarrassment. If she is rated not qualified or less-than-unanimously qualified, the wrath will come from the White House, which disassociated itself four years ago from the prescreening relationship with the ABA that had been in place for decades."

It goes on to suggest the possibility of another form of cronyism, quoting one source who said: "Miers has had a lot of involvement in the ABA and there may be feelings of loyalty." Another source said that if Miers gets the same rating as constitutional law practitioners John Roberts and Ruth Bader Ginsburg, then the ratings don't mean much: "For the ABA to give [Harriet Miers] a 'well qualified' rating would really dilute the effectiveness of these ratings, not just to conservatives but to moderates as well."

Miers' nomination hits the red line

This report quotes President Bush as saying, by way of explanation about why he will not release the Harriet Miers papers from her work as White House counsel, "That would breach very important confidentiality, and it's a red line I'm not willing to cross."

He's not willing to cross the red line? Ordinarily, I would assume that means something about ice hockey or the D.C. Metro, I'm not sure which. (At Metro Center, I think you can walk under the Red Line.)

The Commission on Courts in the 21st Century

This press release announces the formation of the Commission on Courts in the 21st Century, to forecast the needs of Virginia courts 10-15 years into the future.

When is a publicly-owned road not a highway under Virginia law

In U.S. v. Adams, Judge Luttig of the Fourth Circuit followed up on his earlier opinion in U.S. v. Smith, concluding once again that driving on federal property not open to the public is not subject to the rules of the road for Virginia's highways.

What these opinions don't say, I suppose, is that even if you could not be driving illegally, you could be guilty of criminal trespass, either on the CIA access road or the Jericho Ditch Lane in the Great Dismal Swamp National Wildlife Refuge.

Class certification denied in hostile work environment claim against Roanoke City sheriff

In King v. McMillan, Judge Wilson refused to certify a class action for claims of sexual harassment brought against the Sheriff for the City of Roanoke, concluding that the motion for class certification was untimely and failed to meet the required elements of numerosity and commonality.

Prison Litigation Reform Act does not apply to action brought by administrator of deceased inmate's estate

Denying the defendants' motions to dismiss in Simmons v. Johnson, Judge Conrad held, among other things, that the Prison Litigation Reform Act did not apply to the plaintiff's claims as the administrator of the estate of an inmate who committed suicide in prison.

The Condoleezza Rice coin toss

Here is a picture of the Secretary of State tossing the coin at the Tennessee-Alabama game.

I wrote the other day that the White House needed to put out some football stories about Harriet Miers, but this was not the kind of thing I had in mind at all.

On Miers and money

Atrios is more disturbed on items 3 and 4 on this list of money delinquencies attributed to Supreme Court nominee Harriet Miers.

I would have thought that items 1 and 2, related to the suspensions of her law license for failure to pay dues, were more important, at least before Judge Thomas Griffith was confirmed to the D.C. Circuit, having not paid for three years.

You didn't hear it here first

Here Secretary of Education Margaret Spelling says of Supreme Court nominee Harriet Miers: "I don't think I have ever heard her say a cuss word in the entire time I have known her."

For some reason, this comment causes me to recollect the character Nate Caudill's observation in Harry Turtledove's The Guns of the South that "sometimes nothing felt better than a ripe, round oath." I'm not sure that I understand precisely what is a "ripe, round oath" but I have observed that something of the kind appears to have a therapeutic effect for some people.

Virginia Cavaliers with five points outscore Tennessee Vols

Unfortunately, Virginia lost 7-5 to North Carolina, while UT lost 6-3 to Alabama.

Ruminations on the Harriet Miers nomination

Leftcoaster posts here on the signs that the White House might be plotting a way out of the Harrier Miers nomination, citing among other things this Washington Times story, titled Insiders see hint of Miers pullout. CQ has this post describing another kind of out for the Bush Administration, which seems plausible enough - the White House can say that it will not waive the privilege covering Ms. Miers' work papers as White House counsel, and the Senate will say then she cannot be approved.

Truth Laid Bear has this list of bloggers for and against the nomination.

Baseball Crank has a lengthy and thoughtful post about why he is opposed to the Miers nomination.

The latest George Will column, titled Defending The Indefensible, has been cited in many places. Will begins: "Such is the perfect perversity of the nomination of Harriet Miers that it discredits, and even degrades, all who toil at justifying it." She might get confirmed, however, because "it is surpassingly difficult to get a majority anywhere to rise in defense of mere excellence."

Patterico has tracked down the passage from The Brethren that comes to mind whenever I hear comparisons between Harriet Miers and Virginia's own Lewis Powell, Jr. (“Bill Douglas, now, he knows what is in those books,” Powell said. “I don’t.”) I think of Powell as a great man, the ideal of the lawyer-citizen from Virginia, but not so great as a justice of the Supreme Court. I don't think he ever thought of himself as a great justice and was reluctant to take the job in the first place. The circumstances of his appointment were much different: Powell accepted the nomination after Judges Carwell and Haynsworth had been rejected by the Senate, and as a former American Bar Association president, his selection neutralized opposition from the ABA. The Bush administration was on a roll with the selection of Chief Justice Roberts and has never given a flying Fig Newton about the ABA, which may yet opine that Harriet Miers is not qualified (or less than "well qualified"). What the ABA committee will say about Miers is "[o]ne of the more interesting questions." For all these reasons, I don't see much likeness between the nomination of Justice Powell and the Miers nomination, except in the sense that Miers seems no more likely to be comfortable (or predictable) while learning on the job than was Powell.

What do Professor Bainbridge and the Roanoke paper have in common?

The professor might agree in part with the editorial from the Roanoke Times that says here: "Bush should be ashamed and embarrassed to have nominated a candidate with so little merit as a U.S. Supreme Court justice."

On judicial restraint

A state court trial judge writes here in the New York Times: "A week doesn't go by when I am not forced by the law to do something that I would rather not do if I were, say, a philosopher-king unencumbered by the legislation of mere mortals."

He concludes: "We need more judges, at all levels, who are not frustrated policymakers, who won't strain to find ambiguity in unambiguous words because they want to 'do good,' and who won't hesitate to go where their own principled application of the law takes them, even if (and especially if) it is a result they would not freely choose."

New board member of Domino's - Diana Cantor

This press release says that the wife of Virginia Congressman Eric Cantor has been named a director of the board of Domino's Pizza, Inc.

What do you suppose they eat at those board meetings? Can I volunteer? I eat Domino's Pizza about once every two weeks.

The press release notes that Domino's is the Official Pizza of NASCAR.

Rep. Cantor was at William & Mary during part of my law school days, but I don't know what he ate while he was there.

Still more on the Harriet Miers questionnaire

This post, among other things, shows the startling contrast between the questionnaire answers of Harriet Miers and those of John Roberts on the question of judicial activism.

What can a judicial nominee learn from a deposed tyrant

Wonkette thinks this picture of Saddam Hussein with some notes written on the palm of his hand might give Harrier Miers an idea as she prepares for her confirmation hearings before the Senate Judiciary Committee.

Detail is on demonkey - Bainbridge et al. look at the Harriet Miers written answers

In this Bainbridge post, he cites the list of alleged errors in the written answers prepared by Supreme Court nominee Harriet Miers for presentation to the Senate Judiciary committee.

He cites one fellow who wrote: "Where are the passages that show a bright, analytical mind — or failing that, a basic competence in placing commas?"

He concludes by agreeing with someone else who wrote: "everyone makes typos/spelling errors. However, most of us catch them before we hand them to the Senate in our application for one of the most powerful positions in the country, which is the most powerful in the world."

Bad plan No. 5

In this post, Amy Ridenour takes on the White House's latest bad move in bashing the Republicans who think the nomination of Harriet Miers was a bad idea.

The post begins: "Adding to the sexism, elitism, faith, and threat cards in the White House arsenal, comes the 'far right' card."

It describes the appearance of a White House surrogate on the Tucker Carlson show (as seen by hundreds of people on cable), where the guy Blakeman dismissed the opponents of the nomination as characters from the "far right."

Fourth Circuit denies rehearing in Hatfill v. NY Times defamation case

In Hatfill v. New York Times, the Fourth Circuit denied rehearing en banc by a vote of 6-6, over the dissent of Judge Wilkinson, who thinks that the panel decision fails to pass muster under the First Amendment.

As I wrote in this post about the panel decision, state law pleading standards would be much more demanding, and come closer (perhaps by accident) to providing the First Amendment protection Judge Wilkinson advocates.

The Harriet Miers written answers

Here, via the National Review, is the written collection of Supreme Court nominee Harriet Miers' answers to some written questions from the Senate Judiciary Committee.

The parts that I liked were the summaries of her civil cases. There's no doubt that she has had an interesting and lively legal career.

Third Saturday in October, Secretary of State Rice knows where the action is, and she's not rooting for the Vols

The NY Times reports here that Alabama-native Condoleeza Rice is meeting with the British Foreign Secretary in Alabama where they will "perform the pregame coin flip when the University of Alabama football team faces Tennessee in Tuscaloosa, and then stay to watch the game."

Here the Washington Post explains that Ms. Rice is an old Bama football fan who once dated Rick Upchurch of the Denver Broncos.

The White House needs to put out some football stories about Harriet Miers. Maybe call in former Dallas Cowboys Roger Staubach, Bob Lilly, Walt Garrison, and Lee Roy Jordan. Or, Bob Hayes, Rayfield Wright, Mel Renfro, and Calvin Hill.

On Virginia lawyers and the death penalty

The Washington Post reports here that a gang of mostly members of the Virginia Trial Lawyers Association wrote a protest to the Kilgore campaign about what's wrong with using the fact that Kaine or somebody in his firm represented somebody in a capital murder case as evidence of anything.

After all, everybody charged with a felony is entitled to a lawyer, the Constitution says so, in your Sixth Amendment. I agree with Bob Hall and the VTLA gang - you don't go around bashing lawyers because they fulfilled their professional obligation to provide legal services extends to making sure that a criminal defendant's constitutional right to counsel is realized. I would think that even death penalty supporters would want capital murder defendants to have good lawyers - because in theory (and hopefully in practice), no one can lawfully be sentenced to death, who was not represented at trial by competent, zealous, thoughtful counsel.

Furthermore, although the article doesn't say this, there's no need to bash lawyers, especially not court-appointed ones, to make the point that Kaine and Kilgore are as far apart as can be on the Death Penalty. Unlike judges, who must apply the law regardless of personal views, by contrast, the law imposes no limitation on what the Governor may do in considering a clemency petition for a deathrow inmate. If Tim Kaine says he is opposed to the death penalty, for whatever reason, and you think the death penalty is important, then you want him working as a lawyer and not as Governor.

Latest polls

Here is the Diageo/Hotline Poll Of VA, which shows Kaine ahead among all voters but Kilgore ahead among likely voters, in contrast with the SurveyUSA poll which has Kaine ahead among likely voters, and all of everything within the margin of error (or is it Marge Innovera, the Cartalk statistician?).

More on the constitutionality of coal severance taxes

The Coalfield Progress has this report with comments from Mike Quillen of Alpha Natural Resources and Delegate Bud Phillips on the matter of the constitutionality of Virginia's coal severance tax.

Roanoke lawyer Bill Rakes knows Harriet Miers

The Roanoke paper has this column with the observations of Gentry Locke's Bill Rakes on his friend Harriet Miers, whom he got to know in connection with American Bar Association activities. Rakes says she would make a fine justice, and that she is a "by-the-rules sort of person," that she is very personable, yet "tough as nails."

On the importance of correct punctuation

Today I read this on legal writing, and it includes this story on punctuation:

A panda walks in to a café. He orders a sandwich and eats it, then draws a gun and fires two shots in the air. “Why?” asks the confused waiter. As the panda exits, the panda produces a badly punctuated wildlife manual and tosses it over his shoulder. “I’m a panda,” he says, at the door. “Look it up.” The waiter turns to the relevant entry and, sure enough, finds an explanation. “PANDA. Large black-and-white bear-like mammal, native to China. Eats, shoots and leaves.”

Good judges with whom to share a foxhole

In this first-person account from Have Opinion, Will Travel, the author relates that he once had a lawyer pass out at the podium, whereupon two judges ran to help the lawyer while the third ran for the exit.

The West Virginia coal severance tax challenge

Here are links to the briefs in U.S. Steel Mining Co., LLC, et al. v. The Hon. Virgil Helton, State Tax Comm’r, before the West Virginia Supreme Court, including:

Opening brief of appellant U.S. Steel
Brief of appellee Tax Commissioner
Reply brief of Appellant

In one of the amicus briefs, the West Virginia Municipal League declares that an end to the tax would be ruinous to West Virginia localities: "It is not a matter of crying wolf or 'Chicken Little, the sky is falling . . .' just turn out the lights on a great number of West Virginia municipalities and their programs."

The always excellent Goodwin firm filed this brief for the County Commissioners' Association.

The issue is whether West Virginia's coal severance tax violates the Import-Export Clause of the U.S. Constitution, Article I, section 10, clause 2, which says: "No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing its inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress."

I understand from reading the Virginia Mountaineer that some coal companies are contemplating raising the same issue here in the Commonwealth.

Beamer ball turns to Engineering School for ball-carrier brace

Via this Blawg De Novo post, the Washington Post is reporting that the engineers at Virginia Tech are working up a special brace for the arm of injured Hokie tailback Cedric Humes. Tech plays the Maryland Terrapins on Thursday night at College Park on ESPN.

Declaring his faith in the e-schoolers, Humes declared: "My grandmother graduated from the engineering school."

Now, what year was that? Maybe Dad knew her.

A guide to oral argument

Via Ohio Law, here is the official guide to oral argument before the Ohio Supreme Court.

The Virginia Supreme Court (and the Virginia Court of Appeals) should have such a guide.

Kilgore ahead on Tradesports

TradeSports is selling contracts on the Virginia governor's race - the Kilgore price is 60-something, the Kaine price is 30-something.

Money tight again for federal courts

This article from Law.com about the federal court money shortage includes a quote from a deputy clerk on electronic filing: "We can't trust the lawyers to do it right."

His cornerman should have thrown in the towel

Appellate Law & Practice links here to the tale of a lawyer in California who collapsed while being nailed by barrage of unfriendly questions from a panel of appeals court judges.

One lame idea after another

Jaded JD links (with some glee) to this Newsweek story that says the Bush administration is strong-arming Senator Allen and other presidential aspirants in their latest act of flailing about to secure the consent of the U.S. Senate to the nomination of Harriet Miers to the U.S. Supreme Court.

As I've been thinking football and baseball lately, I'm wondering how the Miers' nomination compares with the Red Sox trading Babe Ruth or the Steelers cutting Johnny Unitas - will history record this nomination as a blunder that starts a funk that lasts for decades? There might not be another Republican nominee to the Supreme Court for 20 years, just as the Democrats had none during the 1970s and 1980s.

Great night of football

Unlike Chad, 63,000 of my closest friends and I went to the big game in Charlottesville last night, and saw Virginia beat Florida State 26-21. They got the big touchdown right before the half to build a 23-10 lead and held on in the second half, with the aid and comfort of many costly Seminole penalties and giveaways. The much-maligned Marques Hagans out-dueled Drew Weatherford, as both threw more than 35 times and for over 300 yards, but Weatherford gave up three interceptions, including the clincher in the final minute to end Florida State's last possession. As Virginia ran out the clock, a mob swarmed over and through the shrubbery behind the North end zone onto the field, past the out-numbered security forces. As I left, they were climbing the goalposts. The gang in section 127 were almost beyond speech, in part because you can't say much when your grin is too wide to move your lips and your throat too hoarse to be heard anyhow.

Why not more excitement about the governor's race

Rick Sincere links here to this article in the style section of the Washington Post, which quotes Rick and others, on the proposition that there is not much public interest in this year's governor's race.

Who says no practicing, private sector lawyers blogging against Miers

Southern Appeal suggests that Hugh Hewitt is blind if he thinks there are no private, practicing lawyers blogging against Supreme Court nominee Harriet Miers.

Here you can see the Bainbridge online poll regarding the Miers nomination. The last I checked, 69% of his respondents were opposed.

On the proliferation of new law schools

This article from law.com mentions the Appalachian School of Law and new law schools in North Carolina, South Carolina, and Virginia, in its discussion of the wave of new law schools in the U.S.

Little things mean a lot

I just read The Tipping Point: How Little Things Can Make a Big Difference by Malcolm Gladwell, a book my sister gave me for my birthday. I had never heard of this book.

Reading it makes me wonder about the political and legal/law business applications of the knowledge in that book. It is very provocative, I recommend it.

Some environmentalists opposing wind power

Wired News has this account of environmentalist opposition to some wind-power projects.

The man in Clintwood

Brian Patton has passed the Virginia bar - way to go, yeah.

Besides reading his blog, I met him at the conference in Charlottesville.

Northern Virginia judge still ruling that presumption in DUI law is unconstitutional

The AP reports here that a Northern Virginia general district court judge is still dismissing drunk driving cases on the grounds that the Virginia statute under which intoxication is presumed from a prescribed blood alcohol content is unconstitutional.

Why not a truth-detecting light

It says here that the general district court judge from the Tidewater now facing a complaint before the Judicial Inquiry and Review Commission is "also accused of misleading defendants by telling them his courtroom was equipped with a drug-detecting light."

Convicted murderers undefeated so far before Roberts Court

Professor Berman reports: First opinion of Roberts Court is a win for a criminal defendant! On habeas!

Those crazy West Coast types and their contracts

ContractsProf Blog says here that the Ninth Circuit has ruled that complex and sophisticated loan documents "that provide they cannot be amended except in writing can nevertheless be modified by by oral agreement."

Supreme Court denies cert in Chesterfield Wiccan case

It says here and here that the United States Supreme Court in its infinite wisdom has declined to hear the appeal of the Wiccan woman who sued when she was not allowed on the list of ministers eligible to deliver the invocation at the meetings fo the Chesterfield County Board of Supervisors.

What are the legal credentials of the Senators on the Judiciary Committee?

As the Senate prepares to pass judgment on the nomination of Harriet Miers, it was interesting to read this summary of the legal credentials of the members of the Senate Judiciary Committee, which says in part:

"Senator Hatch: A lawyer who received his degree from the Pittsburgh Law School. He then practiced law for 14 years . . .

-Senator Chuck Grassley: Not a lawyer. A farmer and Senator

-Senator Lindsay Graham: Law degree from University of South Carolina. Served a few years as a lawyer in the Air Force. . .

-Senator Kyl: A lawyer who graduated from the University of Arizona (he did serve on Law Review and was one of the names touted for SCOTUS)

-Senator DeWine: A lawyer who graduated from Ohio Northern University Law School

-Senator Sessions: A lawyer who graduated from the University of Alabama. Had a career as small-town lawyer before becoming US Assistant US Attorney for the Southern District of Alabama; then US Attorney for the district and Alabama’s Attorney General for two years.

-Senator Cornyn: Lawyer, graduated from St. Mary’s School of Law in San Antonio (later earned a masters of Law from University of Virginia Law School). Served as District Court Judge and Texas Supreme Court

-Senator Brownback: Law degree from University of Kansas (the picture on his website shows him riding a bull)

-Senator Tom Coburn: Not a lawyer . . .

-Senator Leahy: JD from Georgetown University . . .

-Senator Kennedy: . . .

-Senator Biden: Graduated from Syracuse University College of Law. . . .

-Senator Kohl: Not a lawyer . . .

-Senator Feingold: Lawyer who graduated from Harvard Law School. Practiced law for a few years. . .

-Senator Schumer: Graduated from Harvard Law School. Practiced for only a few years.

-Senator Durbin: Lawyer who graduated from Georgetown; he did practice for a number of years."

Regarding Senator DeWine, he went to the same law school as Clintwood's own Brian Patton.

Where does Pete Curcio keep his tickets?

This story from West Virginia is titled "Notre Dame tickets stolen from law office."

More suicides than homicides in Virginia in 2003

The Richmond paper reports here: "More people killed themselves than were killed by others in 2003, according to a new state report that examines details of more than 1,300 suicides, homicides and other violent deaths in Virginia that year."

On Bill Hobbs

It says here that Tennessee blogging guru Bill Hobbs is cutting back.

Bill Hobbs has been one of my favorites for years.

One thing in particular I appreciate was that he guaranteed by way of a link back that hundreds of people (the most ever, at the time) read this 2003 post, which says:

---

Bill Hobbs of HobbsOnline says here that he gets a check from his mother in the amount of his age times $1 each year for his birthday. He figures he's losing the battle with time but beating inflation.

That story reminds that my grandmother, who died on August 12, 2002, at the age of 86, would send me each year for my birthday, even after I was a practicing lawyer, a birthday card (sometimes a few days late) with a handwritten note saying how well she remembered getting the long-distance call from Kentucky when I was born and how proud she was that I was her grandson, and inside the card was a one dollar bill. (Unlike Bill Hobbs, I got no cost-of-living adjustment from her, but her list of people to whom she sent cards grew larger as I grew older.)

--

Thanks, Bill.

Why the judiciary aren't mediocre

A while back, I wrote this post with some of my thoughts about how judges in spite of the system are mostly excellent, citing among other things Judge Posner who wrote in this book: "I may be living in the golden age of the federal appellate judiciary. There may never have been a time when so large a fraction of federal judges were outstanding."

I also told the following tale, heard in the church in D.C. where I was married:

The homilist was some fellow from the Church of England, with a syrupy British accent and bone-dry sense of humor.... He related the story of a young priest assigned to a class of teenagers, who made the mistake one day of opening the floor for questions, and the first question was this: "why are the clergy so mediocre?" He thought a moment, and answered, "because we have only the laity to pick from."

The post also notes this discussion about whether it is good for federal judges to be "mediocre."

As to the U.S. Supreme Court, the question may be, why aren't the Supreme Court justices more mediocre? The answer may be, they've got the federal judiciary (and many other sources of excellence) to pick from. All of which makes me feel short-changed by the nomination of Harriet Miers. From my desk, the appearance is that the president didn't even try to make a great pick. The stated rationale that Bush knows Miers personally and therefore he feels confident how she will vote doesn't cut it with me. The idea doesn't even make sense, judging on the basis of "what would Bush want me to do?"

If the President was going to pick an unknown, and why not, he should have found a well-qualified one, and laughed like Nixon did over Rehnquist, or like Bush himself could have done after the vote was in on Roberts.

Did I mention I got the new Edith Maxwell book for my birthday?

It's true, I got the book Never Seen The Moon: The Trials Of Edith Maxwell, about a sensational murder case in Wise County from the 1930s, about which I last wrote this post.

The re-reassignment of the circuits

I am delighted to see here that the new Chief Justice has been assigned as circuit justice for the Fourth Circuit, based on the suspicion that sooner or later I will get to see him at the judicial conference, the Article III groupie that I am.

Interesting First Amendment case being argued this week before U.S. Supreme Court

Here, Nat Garrett of SCOTUSBlog previews the upcoming argument before the Supreme Court in the case of Garcetti v. Ceballos, where an L.A. prosecutor under the notorious Gil Garcetti was retaliated against for telling defense counsel that there was a problem with a warrant obtained by the sheriff's department.

The District Court entered summary judgment for the defendants, because the alleged speech was part of the plaintiff's job duties. The Ninth Circuit panel in an opinion by Judge Reinhardt reversed, concluding that it was a matter of public concern, even if it was job-required speech.

Alternative dispute resolution

From Say What, said to be an actual lease provision (among some Texans):

"13. DISPUTES. If unanimously hereafter agreed by the parties, any disputes regarding this lease shall be settled by an old-fashioned fistfight or best single draw five-card poker hand."

Judge Fulton resigns to take Richmond job

Here the Coalfield Progress reports that General District Court Judge Suzanne Fulton has resigned to take a job as "the first director of the Virginia Supreme Court's new Judicial Evaluation Program."

On Miers - the Westlaw headcount theory

Is that Legal posts here (Fifth Circuit) and here (Texas appeals courts) about the number and outcome of published cases in which Supreme Court nominee Harriet Miers appeared as counsel, and there are not too many.

I must confess, I looked up her name myself. I think her name is on about 20 opinions, great and small. By contrast, "Lucas Hobbs" (a/k/a the new guy in our firm) is on 39 opinions, and "John G. Roberts, Jr." is on 85 opinions.

On lawyers who blog

The NY Times has this article which begins: "Inside every lawyer, it is said, there is a brilliant writer, held back by professional ambition or by fear of failure. Nowhere is that truism more evident than in the explosion of online blogs by, for and about lawyers."

Reading and writing, it's what we do.