Thursday, March 16, 2006
Judge Davis of Franklin County Circuit Court dies at 80
The Roanoke paper reports here on the life and death of Judge Beverly A. "Monk" Davis III.
Wednesday, March 15, 2006
More on the contempt case against the Petersburg sheriff
This week in Epps v. Com., the Virginia Court of Appeals in an opinion by Judge Frank reaffirmed the panel decision, also by written by Judge Frank, in the civil and criminal contempt case against the Petersburg sheriff in a dispute with a judge over security in the courthouse. The case was remanded for new trial. Judges Humphrey and Judge Felton dissented, on the issue of whether it was error for the lower court judge to testify as the "victim" of the criminal contempt.
Tuesday, March 14, 2006
The Tennessee business magazine, blogger edition
On my desk is the March 2006 edition of Business TN, with Glenn Reynolds himself on the cover.
Bad day for that TSA lawyer
We've all been reading about that government lawyer in the Moussaoui 9-11 case being tried in Alexandria, who was over-preparing the FAA witnesses but has now got her own lawyer and is asserting her right not to incriminate herself.
My favorite comment so far on the VTLA list serv was the fellow who wrote: "as my wife just said to me, whatever else happens in your life, at least you're not she."
That is my own sentiment, exactly. I'm going to make a few more professional mistakes over the course of the next 40 years, but certainly none of them are going to foul up the only criminal trial for the worst crime in the history of the United States.
My favorite comment so far on the VTLA list serv was the fellow who wrote: "as my wife just said to me, whatever else happens in your life, at least you're not she."
That is my own sentiment, exactly. I'm going to make a few more professional mistakes over the course of the next 40 years, but certainly none of them are going to foul up the only criminal trial for the worst crime in the history of the United States.
Two reasons why I would go to the TIPS meeting if I could
The Tort and Insurance Practice Section of the ABA, at its upcoming meeting in May, will include a segment on the following bit of American legal history:
"In 1906, a young black man from Chattanooga, Tennessee, was falsely accused of raping a white woman. He was railroaded by the courts, abandoned by his own lawyers, and wrongly convicted and sentenced to death. A pair of courageous African-American lawyers stepped forward to handle his appeal, filing the first ever federal habeas petition in a state criminal case. To everyone's surprise, they convinced the U.S. Supreme Court to issue its first ever stay of an execution in a state criminal case. But days before the justices were scheduled to hear oral arguments, a lynch mob, led by the sheriff and his deputies, snatched the defendant from his jail cell and hung him on the county bridge. What followed was a historic case in which the Supreme Court justices ordered the arrest of the sheriff, his deputies and members of the lynch mob on charges of contempt of the Supreme Court of the United States -- the only such case of its type in U.S. history. This case, from a century ago, exemplifies why lawyers, as advocates for the poor and downtrodden, are best positioned to take the steps necessary to uphold the rule of law. It serves as an example of how lawyers should use the law and the courts for the protection of individual rights - even when the court itself is part of the problem. It goes to the heart of the need to protect of the rule of law."
The other reason? The meeting is in Miami.
"In 1906, a young black man from Chattanooga, Tennessee, was falsely accused of raping a white woman. He was railroaded by the courts, abandoned by his own lawyers, and wrongly convicted and sentenced to death. A pair of courageous African-American lawyers stepped forward to handle his appeal, filing the first ever federal habeas petition in a state criminal case. To everyone's surprise, they convinced the U.S. Supreme Court to issue its first ever stay of an execution in a state criminal case. But days before the justices were scheduled to hear oral arguments, a lynch mob, led by the sheriff and his deputies, snatched the defendant from his jail cell and hung him on the county bridge. What followed was a historic case in which the Supreme Court justices ordered the arrest of the sheriff, his deputies and members of the lynch mob on charges of contempt of the Supreme Court of the United States -- the only such case of its type in U.S. history. This case, from a century ago, exemplifies why lawyers, as advocates for the poor and downtrodden, are best positioned to take the steps necessary to uphold the rule of law. It serves as an example of how lawyers should use the law and the courts for the protection of individual rights - even when the court itself is part of the problem. It goes to the heart of the need to protect of the rule of law."
The other reason? The meeting is in Miami.
Monday, March 13, 2006
When lawyers quit working in March
In Nigeria, 40,000+ lawyers are protesting "what they consider government disregard for court decisions."
In the U.S., we have the NCAA basketball tournament, which lures us to watch TV on certain March weekdays.
In the U.S., we have the NCAA basketball tournament, which lures us to watch TV on certain March weekdays.
Sunday, March 12, 2006
The first thing, let's disband all the lawyers
Over in Iraq, they've dissolved the elected council of the Bar Association, according to this report.
Brevity enjoined as the hallmark of good appellate writing
Ray explains here that one judge speaking at the DRI Appellate Advocacy seminar estimated that he and his colleagues must each of them read 1,000 pages of briefs per day.
Unrelated to this, I note that with Ray Ward, Steve Dillard, et al., in Arizona this weekend for the DRI meeting - it rained. Coincidence?
Unrelated to this, I note that with Ray Ward, Steve Dillard, et al., in Arizona this weekend for the DRI meeting - it rained. Coincidence?
Law school liberals still in denial about FAIR case
In this NY Times article, one of the lawyers for FAIR was interviewed:
"E. Joshua Rosencranz, who represented the law schools in both courts, said the drubbing was a mystery.
'I've heard numerous hypotheses,' Mr. Rosencranz said. 'Of them, the only one that seems utterly implausible is that three dozen law schools, 900 law professors, the court of appeals, and a dozen top law firms are all inept at connecting the dots of Supreme Court precedents.'"
Utterly implausible?
I recollect that a group of Supreme Court writers and pundits assembled at William & Mary also voted 8-0 that the law professors would go down. That's not quite the same as a Supreme Court vote of 8-0, but it gave me some reason to think that the outcome was not in doubt.
"E. Joshua Rosencranz, who represented the law schools in both courts, said the drubbing was a mystery.
'I've heard numerous hypotheses,' Mr. Rosencranz said. 'Of them, the only one that seems utterly implausible is that three dozen law schools, 900 law professors, the court of appeals, and a dozen top law firms are all inept at connecting the dots of Supreme Court precedents.'"
Utterly implausible?
I recollect that a group of Supreme Court writers and pundits assembled at William & Mary also voted 8-0 that the law professors would go down. That's not quite the same as a Supreme Court vote of 8-0, but it gave me some reason to think that the outcome was not in doubt.
Saturday, March 11, 2006
On the Encyclopedia of Appalachia
The Kingsport paper had this fine article on the newly-published Encyclopedia of Appalachia, which intrigues me, even though I never heard of any of the editors. It could be interesting or it could be trash. Maybe my sister will get one and tell me about it.
Which one of America's law schools filed a brief on the winning side of the FAIR case
It says here, quoting Jim Taranto: "Only one law school, George Mason in Arlington, Va., filed a brief on the winning side. Given that not a single justice agreed with the views put forward by profs at Harvard, Yale, Columbia, Cornell, NYU, Chicago, Penn, etc., it seems fair to say that George Mason has the most competent professors of any law school in the nation."
Making law the hard way, one loss at a time
John at Discriminations has this post, about the good law made by the cases in which law schools have lost.
At one time, a similar point could be made about the Virginia State Bar cases involving solicitation of clients. See Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975); Brotherhood of Railroad Trainmen v. Virginia ex rel. Virginia State Bar, 377 U.S. 1 (1964); Consumers Union of U.S., Inc. v. Virginia State Bar, 688 F.2d 218 (4th Cir. 1982).
At one time, a similar point could be made about the Virginia State Bar cases involving solicitation of clients. See Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975); Brotherhood of Railroad Trainmen v. Virginia ex rel. Virginia State Bar, 377 U.S. 1 (1964); Consumers Union of U.S., Inc. v. Virginia State Bar, 688 F.2d 218 (4th Cir. 1982).
Split vote of en banc Fourth Circuit affirms death sentence in Percy Walton case
A few days ago, the Fourth Circuit sitting en banc affirmed the denial by Judge Wilson of the W.D. Va. of post-conviction relief in the death penalty case of Walton v. Johnson. The vote count was as follows: Judge Shedd wrote the opinion, in which Judge Widener, Judge Wilkinson, Judge Niemeyer, Judge Luttig, Judge Williams, and Judge Duncan joined. Judge Wilkinson wrote a separate concurring opinion. Judge Williams wrote a separate concurring opinion. Chief Judge Wilkins wrote a dissenting opinion, in which Judge Michael, Judge Motz, Judge Traxler, Judge King, and Judge Gregory joined.
Chief Judge Wilkins, in his dissent, observed: "In my view, the evidence in the record presents a substantial question (one yet to be answered by the district court) as to whether Walton understands that his execution will mean his death, i.e., the end of his physical life." His opinion seems targeted in some measure at Judge Williams' concurrence, which is mostly targeted at Chief Judge Wilkins' dissent. She noted in her opinion that of Walton "the district court has found understands that is going to be executed, why he is going to be executed, and that his execution will cause him to die."
Judge Wilkinson noted in his concurring opinion that the task of defining what does "death" mean "is well beyond our competence and authority, and is best left to religious leaders, scientists, philosophers, and the private recesses of individual belief." He concluded that "the district court was in the best position to evaluate Walton’s mental state, and it applied the Powell test in an exceedingly careful and thorough fashion."
The majority opinion begins: "In 1996, Percy Levar Walton murdered three people in Danville, Virginia." As this post points out, Walton testified that after his execution, he would "come back as a better person" and he was going to "get a Burger King."
Chief Judge Wilkins, in his dissent, observed: "In my view, the evidence in the record presents a substantial question (one yet to be answered by the district court) as to whether Walton understands that his execution will mean his death, i.e., the end of his physical life." His opinion seems targeted in some measure at Judge Williams' concurrence, which is mostly targeted at Chief Judge Wilkins' dissent. She noted in her opinion that of Walton "the district court has found understands that is going to be executed, why he is going to be executed, and that his execution will cause him to die."
Judge Wilkinson noted in his concurring opinion that the task of defining what does "death" mean "is well beyond our competence and authority, and is best left to religious leaders, scientists, philosophers, and the private recesses of individual belief." He concluded that "the district court was in the best position to evaluate Walton’s mental state, and it applied the Powell test in an exceedingly careful and thorough fashion."
The majority opinion begins: "In 1996, Percy Levar Walton murdered three people in Danville, Virginia." As this post points out, Walton testified that after his execution, he would "come back as a better person" and he was going to "get a Burger King."
Into the blogging of law wrote the 500
3L Epiphany has this list of more than 500 (myself included) who have joined in the charge of the Law Blogging Brigade.
(With apologies to Lord Tennyson's work.)
(With apologies to Lord Tennyson's work.)
On college sports profits and law school accreditation
The always-interesting TaxProf Blog has these two very provocative and mostly unrelated posts:
March Madness: Congress Considering Taxing NCAA Sports Revenues
Groups Opposed to ABA's New Diversity Requirements Seek Revocation of ABA's Power to Accredit Law Schools
March Madness: Congress Considering Taxing NCAA Sports Revenues
Groups Opposed to ABA's New Diversity Requirements Seek Revocation of ABA's Power to Accredit Law Schools
On judicial nominations
A group of former presidents of the Fairfax County Bar made news with their letter protesting the selection of William Petty and Randolph Beales as the new judges for the Virginia Court of Appeals, as reported here in the Connection newspapers and here in the Lynchburg paper. I agree that the General Assembly ought to make sure that candidates for the appeals courts are reviewed by the statewide bar groups, I agree that the General Assembly should include lawyers from every region of the state on the Court of Appeals, and I agree that Judge Ney from Fairfax was certainly the best-qualified candidate in terms of legal scholarship and breadth of litigation experience, but I don't agree that the Fairfax County bar presidents should be bashing Petty and Beales in a way that struck me as a bit misleading (if not just plain wrong) and unnecessary to these other points. Besides which, I am told that Petty is an alumnus of White Elliott & Bundy, from back before my time, and I'm generally a White Elliott & Bundy alumni booster.
Unrelated to the judicial selection process in Virginia, here from the Washington Post and here from Slate and here from the NY Times are news stories on the arrest of Claude Allen, formerly a nominee to serve on the Fourth Circuit and high-ranking official both under Virginia's Governor Gilmore and in the White House under President Bush. In 2003, by a split vote, the ABA rated Allen as qualified.
Unrelated to the judicial selection process in Virginia, here from the Washington Post and here from Slate and here from the NY Times are news stories on the arrest of Claude Allen, formerly a nominee to serve on the Fourth Circuit and high-ranking official both under Virginia's Governor Gilmore and in the White House under President Bush. In 2003, by a split vote, the ABA rated Allen as qualified.
Friday, March 10, 2006
Truck driver injured in warehouse is statutory employee
In Glenn v. Lafon, Judge Conrad of the W.D. Va. granted the defendant's motion to dismiss, concluding that the plaintiff truck driver was a statutory employee of the defendant warehouse company with respect to the activity in which he was engaged at the time of his injuries, and therefore he was limited to the exclusive remedy of workers' compensation.
We litigated such a case a while back, which added the word "lumper" to my vocabulary. The drivers who hire lumpers to unload the truck are less likely to be struck by a forklift in the warehouse.
We litigated such a case a while back, which added the word "lumper" to my vocabulary. The drivers who hire lumpers to unload the truck are less likely to be struck by a forklift in the warehouse.
Thursday, March 09, 2006
Where are the law professors acknowledging their foolishness
From the comments on the ACSBlog, this one sums it up, as it says regarding the Solomon Act case:
"The Solomon case was a litmus test to see who believes that the Constitution means 'what I like is required; what I dislike is forbidden.' It amazes me that, even today, after a 8-0 drubbing that included the more liberal justices, anyone thinks this was a difficult issue."
"The Solomon case was a litmus test to see who believes that the Constitution means 'what I like is required; what I dislike is forbidden.' It amazes me that, even today, after a 8-0 drubbing that included the more liberal justices, anyone thinks this was a difficult issue."
Tom Johnston confirmed as the new judge of the S.D. W.Va.
One of the Charleston papers reports here that "Tom Johnston, who is currently U.S. Attorney for the state's Northern District, was confirmed Monday night on a Senate vote of 89-0" as the new judge for the United States District Court for the Southern District of West Virginia, replacing the late Judge Haden. Johnston is 38. He was a campaign coordinator in West Virginia for President Bush in 2000.
Wednesday, March 08, 2006
The order with the Billy Madison reference
This order has been making the rounds, notable for its reference in a footnote to an Adam Sandler movie.
That $1 million for Buchanan County
As the Roanoke Times reported here and the Richmond paper reported here, the United States Department of Justice is paying over $1 million of money forfeited in the Buchanan County RICO case back to the County as the victim of the Big Coon Dog case. Here is the press release from the office of John Brownlee, the U.S. Attorney for the W.D. Va. The Roanoke article mentions that I am outside counsel for the County as it tries to get its money back.
Some people have asked me what kind of proceeding was this, that resulted in this payment of the money to the County. The answer is that in the criminal case, the District Court did not order restitution but did enter a series of forfeiture orders against the defendants, pursuant to 18 U.S.C. §§ 981 and 982. Under 18 U.S.C. § 981(e)(6), property forfeited pursuant to 18 U.S.C. § 981 may be transferred to the victim of the offenses which gave rise to the forfeiture. Accordingly, we filed a petition for remission of the forfeiture with the Department of Justice under 28 C.F.R. §§ 9.1 et seq. The law enforcement officials in Virginia - the prosecutors and the IRS and FBI - had to make recommendations to the DOJ in Washington, which they did, and their recommendations resulted in favorable action by the DOJ in Washington on the County's petition.
Some people have asked me what kind of proceeding was this, that resulted in this payment of the money to the County. The answer is that in the criminal case, the District Court did not order restitution but did enter a series of forfeiture orders against the defendants, pursuant to 18 U.S.C. §§ 981 and 982. Under 18 U.S.C. § 981(e)(6), property forfeited pursuant to 18 U.S.C. § 981 may be transferred to the victim of the offenses which gave rise to the forfeiture. Accordingly, we filed a petition for remission of the forfeiture with the Department of Justice under 28 C.F.R. §§ 9.1 et seq. The law enforcement officials in Virginia - the prosecutors and the IRS and FBI - had to make recommendations to the DOJ in Washington, which they did, and their recommendations resulted in favorable action by the DOJ in Washington on the County's petition.
Monday, March 06, 2006
Law schools go down in Rumsfeld case, 8-0
Today the Supreme Court decided Rumsfeld v. FAIR against the anti-American military law school faculties, by a vote of 8-0.
Saturday, March 04, 2006
More on the 19th century federal judge buried in Abingdon
Previously, I posted about Judge Robert William Hughes, a judge of the E.D. Va., who was buried in Abingdon in 1901. Here are some additional facts:
Hughes was of an old Virginia family, whose ancestors came to the area of Powhatan County before 1700, when it was still Goochland County.
He served in the Confederate Army during the Civil War, then returned to his pre-war occupation as a newspaper editor in Richmond. In June, 1869, he shot and wounded a rival newspaperman in a duel.
Hughes "was an extreme secessionist, but after the war he became a moderate Republican and a favorite of President Grant, causing many of his old friends to consider him 'worse than a carpetbagger' and a 'Judas.'" He resigned as U.S. Attorney for the Western District of Virginia in 1873 for his unsuccessful campaign for governor, against James L. Kemper.
In 1881, the College of William & Mary conferred on him an honorary doctor of law degree. His son, Robert Morton Hughes, was a president of the Virginia Bar Association from 1895-96.
Hughes was of an old Virginia family, whose ancestors came to the area of Powhatan County before 1700, when it was still Goochland County.
He served in the Confederate Army during the Civil War, then returned to his pre-war occupation as a newspaper editor in Richmond. In June, 1869, he shot and wounded a rival newspaperman in a duel.
Hughes "was an extreme secessionist, but after the war he became a moderate Republican and a favorite of President Grant, causing many of his old friends to consider him 'worse than a carpetbagger' and a 'Judas.'" He resigned as U.S. Attorney for the Western District of Virginia in 1873 for his unsuccessful campaign for governor, against James L. Kemper.
In 1881, the College of William & Mary conferred on him an honorary doctor of law degree. His son, Robert Morton Hughes, was a president of the Virginia Bar Association from 1895-96.
Friday, March 03, 2006
How you can tell Jerry Fuhrman does not aspire to be an appellate advocate
His take on Justice Ginsburg: Would Someone Wake The Old Bat Up?
This year's Virginia Court of Appeals nominees and the state of the judicial selection process
The Washington Post reports here that Northern Virginia legislators are irate that Fairfox County Circuit Judge Ney was not selected to the court of appeals, instead of William Petty and Randolph Beales.
The article makes these points:
1. Northern Virginia legislators claimed that "the selections violated an informal agreement among Republicans that each of Virginia's 11 congressional districts would be represented on the state Court of Appeals."
2. Del. Albo said: "Nobody, in my opinion, voted on qualifications."
3. Del. Albo noted "that neither Beales, of the Richmond area, nor Petty had submitted to the traditional review by the state bar."
4. Del. Moran said the candidates chosen "are capable but easily identified with the Republican Party."
This doesn't sound like anything new, or especially alarming, since the two guys the Republicans picked are both strong candidates - notwithstanding Ken Lammers' less than self-serving observation.
The article makes these points:
1. Northern Virginia legislators claimed that "the selections violated an informal agreement among Republicans that each of Virginia's 11 congressional districts would be represented on the state Court of Appeals."
2. Del. Albo said: "Nobody, in my opinion, voted on qualifications."
3. Del. Albo noted "that neither Beales, of the Richmond area, nor Petty had submitted to the traditional review by the state bar."
4. Del. Moran said the candidates chosen "are capable but easily identified with the Republican Party."
This doesn't sound like anything new, or especially alarming, since the two guys the Republicans picked are both strong candidates - notwithstanding Ken Lammers' less than self-serving observation.
Thursday, March 02, 2006
Yes, but how many will also whack CNN
The Norfolk paper reports here that Dr. Pat Robertson is bummed at the thought that if consumers get to pick their own channels, there will be fewer viewers for the PTL Club.
This suggests that they are relying for their ratings in part on people who fell asleep and rolled over on the remote control.
This suggests that they are relying for their ratings in part on people who fell asleep and rolled over on the remote control.
Judge Judy too mean for Muammar
Taranto cracks me up, including today's reference to this article on the release of political prisoners in Libya, which says:
"The 85 political prisoners, most of them professionals and students, were originally tried by the People's Court - a court which was abolished last year."
"The 85 political prisoners, most of them professionals and students, were originally tried by the People's Court - a court which was abolished last year."
Punitive to compensatory ratio of 15,000:1 - will that pass constitutional muster?
The Kingsport paper reports here on the federal court trial of a civil rights case where the jury awarded $1 in compensatory damages but $15,000 in punitive damages against one defendant and $5,000 each against two other defendants.
In the State Farm case, the Supreme Court frowned on a punitives to compensatory damages ratio of 145:1, yet observed that "because there are no rigid benchmarks that a punitive damages award may not surpass, ratios greater than those we have previously upheld may comport with due process where 'a particularly egregious act has resulted in only a small amount of economic damages.'"
Mike linked just the other day to a Second Circuit opinion in a somewhat similar case, where the punitive damages were whacked from $20,000 to $10,000, based on what is in the federal law arguably the affirmative defense of inability to pay. As I wrote here, the case on this point that always comes to mind is the Joe Morgan airport case.
Do Ronnie, Nick, or Hilary read this blog, I wonder.
In the State Farm case, the Supreme Court frowned on a punitives to compensatory damages ratio of 145:1, yet observed that "because there are no rigid benchmarks that a punitive damages award may not surpass, ratios greater than those we have previously upheld may comport with due process where 'a particularly egregious act has resulted in only a small amount of economic damages.'"
Mike linked just the other day to a Second Circuit opinion in a somewhat similar case, where the punitive damages were whacked from $20,000 to $10,000, based on what is in the federal law arguably the affirmative defense of inability to pay. As I wrote here, the case on this point that always comes to mind is the Joe Morgan airport case.
Do Ronnie, Nick, or Hilary read this blog, I wonder.
Also, you can't pull over when steering with knees and eating French fries
The Roanoke paper correctly lampoons new Del. Bowling for opposing a ban on cellphone use by teen drivers based on the illogic that the roads of Southwest Virginia are too narrow and winding for the teen drivers to pull over to talk on the telephone.
The editorial says in part:
"A House subcommittee found no shortage of lame reasons for turning away a ban on cell phone use by teen drivers.
But of all the excuses -- that included the usual pandering that cell phones are no more distracting than radios, eating or talking with a passenger -- the one offered by Del. Danny C. Bowling, D-Tazwell County, takes the prize.
Bowling didn't like the provision that would have required teens to pull to the side of the road before taking or making calls. The roads in his district are too narrow and too windy to provide safe shoulders, Bowling offered. Yet they are safe enough for Virginia's most inexperienced drivers to divert their attention away from the curves and onto calls?"
All this makes me think of the reasoning attributed (in this book) to George Burns, who supposedly said: "I never jog. It makes me spill my martini."
The editorial says in part:
"A House subcommittee found no shortage of lame reasons for turning away a ban on cell phone use by teen drivers.
But of all the excuses -- that included the usual pandering that cell phones are no more distracting than radios, eating or talking with a passenger -- the one offered by Del. Danny C. Bowling, D-Tazwell County, takes the prize.
Bowling didn't like the provision that would have required teens to pull to the side of the road before taking or making calls. The roads in his district are too narrow and too windy to provide safe shoulders, Bowling offered. Yet they are safe enough for Virginia's most inexperienced drivers to divert their attention away from the curves and onto calls?"
All this makes me think of the reasoning attributed (in this book) to George Burns, who supposedly said: "I never jog. It makes me spill my martini."
Still more on the AG opinion about Kaine's executive order
The Norfolk paper editorializes here that the McDonnell opinion is no good because (a) the AG did not say that discrimination is a bad thing, and (b) the AG knocks down straw men by concluding the Governor's executive order cannot extend farther than anyone would have thought it does anyway.
So, the Attorney General is now criticized because he did not include politics in his legal analysis, and criticized also because his conclusions about the limitations on the proper scope of the Governor's executive order are too obviously correct, and therefore should not have been mentioned in his opinion.
So, the Attorney General is now criticized because he did not include politics in his legal analysis, and criticized also because his conclusions about the limitations on the proper scope of the Governor's executive order are too obviously correct, and therefore should not have been mentioned in his opinion.
Hoping for a writ of overturnal
This great post from The Legal Reader tells of how someone's spell-checking changed all the "sua spontes" into "sea sponges" and about another lawyer seeking "quashal" of process served on his client.
Somehow, this reminds me of a Wise County lawyer story I once heard.
Somehow, this reminds me of a Wise County lawyer story I once heard.
Who wouldn't want to choose a Virginia forum
This article discusses appeals in Washington state regarding, among other things, consumer contracts with AOL, including the validity of the forum selection clause, about which it says:
"In a separate case Tuesday, justices heard arguments from America Online, which has a clause in its contract that would force consumers to only take action in Virginia courts. The state of Virginia does not have a process for which consumers can bring class-action lawsuits to court.
The Washington Court of Appeals struck down that provision, saying the clause violated public policy.
AOL's lawyer, John O'Quinn, argued that consumers would be allowed to take class actions in federal court.
AOL's "terms of service" is also a take-it-or-leave-it contract. But those terms are even more unconscionable than an outright class-action ban, Smith said, because it essentially allows AOL to claim that Washington's consumer laws do not have jurisdiction over them, even though they do consumer business in Washington.
"Each of the individual consumers in this case has suffered damages that probably are less than $250. This is little -- if any -- incentive to bring an individual private action in Washington, let alone in Virginia," Smith wrote in another brief to the court."
"In a separate case Tuesday, justices heard arguments from America Online, which has a clause in its contract that would force consumers to only take action in Virginia courts. The state of Virginia does not have a process for which consumers can bring class-action lawsuits to court.
The Washington Court of Appeals struck down that provision, saying the clause violated public policy.
AOL's lawyer, John O'Quinn, argued that consumers would be allowed to take class actions in federal court.
AOL's "terms of service" is also a take-it-or-leave-it contract. But those terms are even more unconscionable than an outright class-action ban, Smith said, because it essentially allows AOL to claim that Washington's consumer laws do not have jurisdiction over them, even though they do consumer business in Washington.
"Each of the individual consumers in this case has suffered damages that probably are less than $250. This is little -- if any -- incentive to bring an individual private action in Washington, let alone in Virginia," Smith wrote in another brief to the court."
Wednesday, March 01, 2006
Republicans pick Petty, Beales for Virginia Court of Appeals
Why the sudden increase in Crohn's patients
Sure, everyone says they have Crohn's disease, now that scientists have concluded Viagra could treat Crohn's disease.
("No ED here, it's for my bowels.")
("No ED here, it's for my bowels.")
One way to skin a few cats
In Illinois, evidently the state bar association conducts an advisory poll of the lawyers in a given circuit about the qualifications of the judicial candidates for that circuit, and to be "recommended" the candidate has to score a 65 or higher on the poll.
And, from this fun article, it appears that some would-be judges are mad that they don't make the numbers. One supporter of a woman candidate complained that her low ratings were the result of gender bias. One lawyer was viewed by only 7.69% of the respondents as meeting the requirements for being a judge. One fellow who just missed the grade on temperament declared: "There's good reasons why bar associations don't choose judges." (I guess there was no separate category for subject-verb agreement.)
Heck, I don't know any of these lawyers or judges, but I had fun putting those quotes in the mouths of people I do know, in Virginia or Tennessee or somewhere around here.
And, from this fun article, it appears that some would-be judges are mad that they don't make the numbers. One supporter of a woman candidate complained that her low ratings were the result of gender bias. One lawyer was viewed by only 7.69% of the respondents as meeting the requirements for being a judge. One fellow who just missed the grade on temperament declared: "There's good reasons why bar associations don't choose judges." (I guess there was no separate category for subject-verb agreement.)
Heck, I don't know any of these lawyers or judges, but I had fun putting those quotes in the mouths of people I do know, in Virginia or Tennessee or somewhere around here.
Dinner with D'Brickashaw
SportingNews (is that the same as The Sporting News?) has this interesting interview with D'Brickashaw Ferguson, the four-year OT starter for Virginia, who was named after Father Ralph from The Thornbirds (the guy played by Richard Chamberlain who had a love child with the woman played by Rachel Ward, back in the days of The Mini-Series).
Read it - Chad, that means you.
Read it - Chad, that means you.
Hmm, that's not encouraging
One of the commenters to this J. Sarge post got it straight from the horse's mouth that Professor Howard thinks the McDonnell opinion on the Kaine executive order is all wet.
That's sort of like James Madison writing a letter to the New York Times saying the Supreme Court can't figure out the Federalist Papers.
That's sort of like James Madison writing a letter to the New York Times saying the Supreme Court can't figure out the Federalist Papers.
Tuesday, February 28, 2006
Virginia bill makes Volokh!
Professor Volokh had this post about a Virginia bill, HB 1531, that "would prohibit health care professionals from asking a patient about gun possession, ownership or storage unless the patient is being treated for an injury related to guns or asks for safety counseling about them." Apparently, it passed the House 88-11 but went down in the Senate.
You'll need a lawyer to deer hunt in Southhampton County
So says outdoors writer Bill Cochran in this article about the local politics of deer hunting in one Virginia county.
On a surfer/lawyer/author
Reading here about the late Peter Beck, of the Charleston SC bar, it says:
"He was a graduate of the University of Pennsylvania and the University Of South Carolina School Of Law. He was a partner with Qualey and Beck Law Firm. He was the current President of The Charleston Chapter of Surfrider Foundation, past President of Zeta Psi Fraternity at the University of Pennsylvania, a member of The South Carolina Bar Association, a former Assistant Solicitor for the 9th Judicial Circuit (Charleston County), a former Assistant to the Washington, D.C. News Bureau Chief of Hearst Publications and Broadcasting, and local admissions representative for the University of Pennsylvania. He was an avid surfer and an author."
"He was a graduate of the University of Pennsylvania and the University Of South Carolina School Of Law. He was a partner with Qualey and Beck Law Firm. He was the current President of The Charleston Chapter of Surfrider Foundation, past President of Zeta Psi Fraternity at the University of Pennsylvania, a member of The South Carolina Bar Association, a former Assistant Solicitor for the 9th Judicial Circuit (Charleston County), a former Assistant to the Washington, D.C. News Bureau Chief of Hearst Publications and Broadcasting, and local admissions representative for the University of Pennsylvania. He was an avid surfer and an author."
Sunday, February 26, 2006
Dr. Knox wins civil case on lack of causation
The Roanoke paper reports here: "Former Roanoke pain doctor Cecil Knox on Thursday won the first of several wrongful death cases against him when a federal jury found his actions were not a direct cause of a patient's overdose."
Before there were bloggers, there were cloggers
The Washington Post has this interesting article on a D.C. area gathering of cloggers.
I can't recall when I first saw some cloggers, perhaps in the summer time at Fontana Village, where later this year will be held a Clog Camp.
I can't recall when I first saw some cloggers, perhaps in the summer time at Fontana Village, where later this year will be held a Clog Camp.
Professor Berman cracks down on the Fourth Circuit crack opinion
Professor Berman in this post has no use for the Fourth Circuit's opinion in U.S. v. Eura, in which the Court rejected the effort by District Judge Payne of the E.D.Va. to substitute a ratio of his own in place of the 100:1 crack to powder cocaine ratio in the Sentencing Guidelines.
I thought, just flipping through the opinion, that the issue was whether the District Court could look to non-case-specific factors such as the reports of the Sentencing Commission that had been rejected by Congress, to which the panel answered no, and on which point Judge Michael had some separate thoughts in his concurring opinion.
I thought, just flipping through the opinion, that the issue was whether the District Court could look to non-case-specific factors such as the reports of the Sentencing Commission that had been rejected by Congress, to which the panel answered no, and on which point Judge Michael had some separate thoughts in his concurring opinion.
Is it pedantic or pedentic
I was looking at some opinions this afternoon and saw the word "pendant."
That's not right, thought I. The correct spelling in the context of jurisdiction is "pendent." A "pendant" is a piece of jewelry.
I ran it through Westlaw - allfeds - pendant /s jurisdiction. There were more than 2100 opinions that said "pendant," compared to 10,000+ with "pendent."
Holy catbirds, I thought, better leave this one alone. Federal judges can't be wrong 2100 times, can they?
That's not right, thought I. The correct spelling in the context of jurisdiction is "pendent." A "pendant" is a piece of jewelry.
I ran it through Westlaw - allfeds - pendant /s jurisdiction. There were more than 2100 opinions that said "pendant," compared to 10,000+ with "pendent."
Holy catbirds, I thought, better leave this one alone. Federal judges can't be wrong 2100 times, can they?
A Joe Smiddy story
From this web page, it says:
"The remarkable Joseph C. Smiddy, coal miner's son, musician, scholar and humanitarian, joined the first faculty at Clinch Valley as professor of biology. Two years later he was appointed dean, and eventually became chancellor. As teacher, administrator, and self-proclaimed 'voice crying in the wilderness,' he kept the college going through its lean early years, sometimes by wit alone. On one occasion he saved the first dormitory by assuring the University of Virginia provost that it would be used to house students from broken homes.
Smiddy's unerring instinct for doing the right thing was never more evident than the day an excited secretary rushed into his office exclaiming 'Mr. Smiddy, what should we do? There's a woman in the registration line with skin as black as it can be.' Without looking up, Smiddy asked, 'What color is her money?' A few moments later Clinch Valley College was integrated, years before its parent institution admitted African Americans as undergraduates."
I suspect that Joe Smiddy did not need any executive orders or attorney general opinions to do the right thing.
"The remarkable Joseph C. Smiddy, coal miner's son, musician, scholar and humanitarian, joined the first faculty at Clinch Valley as professor of biology. Two years later he was appointed dean, and eventually became chancellor. As teacher, administrator, and self-proclaimed 'voice crying in the wilderness,' he kept the college going through its lean early years, sometimes by wit alone. On one occasion he saved the first dormitory by assuring the University of Virginia provost that it would be used to house students from broken homes.
Smiddy's unerring instinct for doing the right thing was never more evident than the day an excited secretary rushed into his office exclaiming 'Mr. Smiddy, what should we do? There's a woman in the registration line with skin as black as it can be.' Without looking up, Smiddy asked, 'What color is her money?' A few moments later Clinch Valley College was integrated, years before its parent institution admitted African Americans as undergraduates."
I suspect that Joe Smiddy did not need any executive orders or attorney general opinions to do the right thing.
Stroke of the pen, law of the land. Kind of cool.
So said Paul Begala, in reference to executive orders of President Clinton. See Frank J. Murray, Clinton's Executive Orders Still Are Packing a Punch: Other Presidents Issued More, But Many of His Are Sweeping, WASH. TIMES, Aug. 23, 1999, at A1 (quoted in Branum, President or King? The Use and Abuse of Executive Orders in Modern-Day America, 28 J. Legis 1 (2002)).
In this opinion, Attorney General McDonnell ruled that Governor Kaine's Executive Order adding sexual orientation as a protected class within state employment was beyond his powers as Governor.
Among the prior opinions cited was 1983-84 Va. Op. Atty. Gen. 180, by Attorney General Baliles, which says in part:
"Although no provision of the Constitution explicitly authorizes the Governor to issue executive orders and no Virginia statute provides a general grant of authority to issue such orders, Governors of the Commonwealth have historically issued executive orders in the absence of a specific statute expressly or generally conferring the authority. The Governor has the inherent authority to issue executive orders in order to "take care that the laws be faithfully executed." Art. V, § 7. It is recognized that there is a general reservoir of powers granted by the Constitution to the Governor as the Chief Executive of the Commonwealth. See 1945-1946 Report of the Attorney General at 144.
Examples of situations in which executive orders are appropriate are as follows:
(1) Whenever a provision of the Code of Virginia expressly confers that authority upon the Governor. See, e.g., §§ 2.1-51.9, 2.1-51.15, 2.1-51.18, 2.1-51.21, 2.1-51.24 and 2.1-51.27 (permitting the assignment or reassignment of agencies to Cabinet Secretaries by executive order); and § 44.1- 146.17(1) (permitting the issuance of executive orders to carry out the purposes of the Emergency Services and Disaster Law). Compare Boyd v. Commonwealth, 216 Va. 16, 215 S.E.2d 915 (1975), with Jackson v. Hodges, 176 Va. 89, 10 S.E.2d 566 (1940); see, also, 1941-1942 Report of the Attorney General at 75;
(2) Whenever there is a genuine emergency which requires the Governor, pursuant to his constitutional responsibility and power, to issue an order, to abate a danger to the public regardless of the absence of explicit authority. See 1945-1946 Report of the Attorney General, supra; and
(3) Whenever the order is administrative in nature, as opposed to legislative. See 1965-1966 Report of the Attorney General at 143.
An executive order may not, however, be employed when a law is required. See 1977-1978 Report of the Attorney General at 5. This is because the legislative power of the Commonwealth is vested in the General Assembly pursuant to Art. IV § 1, and the Governor may not exercise that power. See Art. III, § 1; Accord Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587, 72 S.Ct. 863, 867 (1952).
Nor may an executive order be used to establish an agency which has authority to implement or enforce the requirements of law. The creation of such an agency requires the exercise of legislative powers in accordance with Art. III § 1 and Art. IV, § 1. An executive order may be used to establish an agency which possesses merely advisory authority, however."
McDonnell's opinion notes that the General Assembly can and does identify the classes to be protected from discrimination in the Commonwealth, citing Va. Code §§ 2.2-2639, 2.2-3004, 2.2-3900, 2.2-3901, 2.2-3902, 2.2-4200, 2.2-4310, 2.2-4311, 15.2-853, 15.2-854, 15.2-965, 15.2-1507, 15.2-1604, 22.1-212.6, 22.1-306, 23-38.110, 23-50.16:24, 23-50.16:36, 23-77.4, 23-91.23:1, 36-96.3, 36-96.4, 38.2-508.2, 38.2-2115, 38.2-2213, 59.1-21.21:1, 62.1-129.1. It also notes: "Since 1997, the General Assembly has on 17 occasions considered bills adding sexual orientation to various nondiscrimination statutes. The General Assembly repeatedly has rejected these proposals and has declined to change the Commonwealth’s public policy by adding sexual orientation to its statutes barring discrimination in a variety of contexts, including employment. In fact, the General Assembly earlier this month again declined to adopt this public policy during the current legislative session."
Given all that background, the Attorney General's conclusion seems to me not only plausible, but perhaps inescapable.
I'm surprised, however, that there was no mention of the Supreme Court's decision in Boynton. In that 2006 case, the Supreme Court held that the Virginia Personnel Act, the execution of which is to be directed by the Governor, does not apply to present and former employees of the Office of the Attorney General. It seems possible that the Governor's claim of authority is the weakest with respect to those segments of the state's work force similarly exempted under Va. Code 2.2-2905, which include:
1. Officers and employees for whom the Constitution specifically directs the manner of selection; 2. Officers and employees of the Supreme Court and the Court of Appeals; 3. Officers appointed by the Governor, whether confirmation by the General Assembly or by either house thereof is required or not; 4. Officers elected by popular vote or by the General Assembly or either house thereof; 5. Members of boards and commissions however selected; 6. Judges, referees, receivers, arbiters, masters and commissioners in chancery, commissioners of accounts, and any other persons appointed by any court to exercise judicial functions, and jurors and notaries public; 7. Officers and employees of the General Assembly and persons employed to conduct temporary or special inquiries, investigations, or examinations on its behalf; 8. The presidents, and teaching and research staffs of state educational institutions; 9. Commissioned officers and enlisted personnel of the National Guard and the naval militia; 10. Student employees in institutions of learning, and patient or inmate help in other state institutions; 11. Upon general or special authorization of the Governor, laborers, temporary employees and employees compensated on an hourly or daily basis; 12. County, city, town and district officers, deputies, assistants and employees; 13. The employees of the Virginia Workers' Compensation Commission; 14. The officers and employees of the Virginia Retirement System; 15. Employees whose positions are identified by the State Council of Higher Education and the boards of the Virginia Museum of Fine Arts, The Science Museum of Virginia, the Jamestown-Yorktown Foundation, the Frontier Culture Museum of Virginia, the Virginia Museum of Natural History and The Library of Virginia, and approved by the Director of the Department of Human Resource Management as requiring specialized and professional training; 16. Employees of the State Lottery Department; 17. Production workers for the Virginia Industries for the Blind Sheltered Workshop programs; 18. Employees of the Virginia Commonwealth University Health System Authority; 19. Employees of the University of Virginia Medical Center; 20. In executive branch agencies the employee who has accepted serving in the capacity of chief deputy, or equivalent, and the employee who has accepted serving in the capacity of a confidential assistant for policy or administration; 21. Employees of Virginia Correctional Enterprises; 22. Officers and employees of the Virginia Port Authority; 23. Employees of the Virginia College Savings Plan; 24. Directors of state facilities operated by the Department of Mental Health, Mental Retardation and Substance Abuse Services employed or reemployed by the Commissioner after July 1, 1999, under a contract pursuant to § 37.2-707; 25. The Director of the Virginia Office for Protection and Advocacy; and 26. Employees of the Virginia Tobacco Settlement Foundation.
(I suppose a similar point is made in footnote 23, which says: "Moreover, the Governor’s authority to set policy is limited to the executive branch. See § 2.2-103(A). Executive Order No. 1 attempts to regulate 'all facets of state government.' See Exec. Order No. 1, 18:11 Va. Reg. Regs. 1431 (Feb. 11, 2002), revised 22:10 Va. Reg. Regs. 1701 (Jan. 23, 2006). The term, 'all facets,' would include the legislative and judicial branches of state government. To the extent the Executive Order is appropriate, it can only apply to the executive branch.")
A lot of the discussion in the McDonnell opinion did not really make sense to me, until I re-read the executive order, which purports to declare the "firm and unwavering policy" of the Commonwealth. "Public policy" is the basis for the law of wrongful discharge in Virginia. An enterprising plaintiff's lawyer might take Governor Kaine's declaration of public policy and use it as a basis for a Bowman claim against a private employer. I think part of the Attorney General's opinion is addressed to preclude that argument.
UPDATE: Here is Claire Gastanaga's post on the AG opinion. Respectfully, I disagree with just about everything she said. With regard to the "activism" charge, I'm not sure what that means any more, but I have been loosely following the discussion about Justice Breyer's book, as the counterpoint to Justice Scalia's book, having read neither. The latest discussion I heard about this suggested that one difference between Breyer and Scalia was that Breyer was more concerned about making a statute doing what it was supposed to do, in spite of the text if necessary, while Scalia would rather sooner see the statute fail of its purpose than go beyond the text. This AG opinion seems to me the product of the latter kind of decisionmaking. It contains no discussion at all of the merits of the policy at issue. In that sense, the charge that the Attorney General will let politics dictate his legal analysis is, in my view, wholly unsustainable.
In this opinion, Attorney General McDonnell ruled that Governor Kaine's Executive Order adding sexual orientation as a protected class within state employment was beyond his powers as Governor.
Among the prior opinions cited was 1983-84 Va. Op. Atty. Gen. 180, by Attorney General Baliles, which says in part:
"Although no provision of the Constitution explicitly authorizes the Governor to issue executive orders and no Virginia statute provides a general grant of authority to issue such orders, Governors of the Commonwealth have historically issued executive orders in the absence of a specific statute expressly or generally conferring the authority. The Governor has the inherent authority to issue executive orders in order to "take care that the laws be faithfully executed." Art. V, § 7. It is recognized that there is a general reservoir of powers granted by the Constitution to the Governor as the Chief Executive of the Commonwealth. See 1945-1946 Report of the Attorney General at 144.
Examples of situations in which executive orders are appropriate are as follows:
(1) Whenever a provision of the Code of Virginia expressly confers that authority upon the Governor. See, e.g., §§ 2.1-51.9, 2.1-51.15, 2.1-51.18, 2.1-51.21, 2.1-51.24 and 2.1-51.27 (permitting the assignment or reassignment of agencies to Cabinet Secretaries by executive order); and § 44.1- 146.17(1) (permitting the issuance of executive orders to carry out the purposes of the Emergency Services and Disaster Law). Compare Boyd v. Commonwealth, 216 Va. 16, 215 S.E.2d 915 (1975), with Jackson v. Hodges, 176 Va. 89, 10 S.E.2d 566 (1940); see, also, 1941-1942 Report of the Attorney General at 75;
(2) Whenever there is a genuine emergency which requires the Governor, pursuant to his constitutional responsibility and power, to issue an order, to abate a danger to the public regardless of the absence of explicit authority. See 1945-1946 Report of the Attorney General, supra; and
(3) Whenever the order is administrative in nature, as opposed to legislative. See 1965-1966 Report of the Attorney General at 143.
An executive order may not, however, be employed when a law is required. See 1977-1978 Report of the Attorney General at 5. This is because the legislative power of the Commonwealth is vested in the General Assembly pursuant to Art. IV § 1, and the Governor may not exercise that power. See Art. III, § 1; Accord Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587, 72 S.Ct. 863, 867 (1952).
Nor may an executive order be used to establish an agency which has authority to implement or enforce the requirements of law. The creation of such an agency requires the exercise of legislative powers in accordance with Art. III § 1 and Art. IV, § 1. An executive order may be used to establish an agency which possesses merely advisory authority, however."
McDonnell's opinion notes that the General Assembly can and does identify the classes to be protected from discrimination in the Commonwealth, citing Va. Code §§ 2.2-2639, 2.2-3004, 2.2-3900, 2.2-3901, 2.2-3902, 2.2-4200, 2.2-4310, 2.2-4311, 15.2-853, 15.2-854, 15.2-965, 15.2-1507, 15.2-1604, 22.1-212.6, 22.1-306, 23-38.110, 23-50.16:24, 23-50.16:36, 23-77.4, 23-91.23:1, 36-96.3, 36-96.4, 38.2-508.2, 38.2-2115, 38.2-2213, 59.1-21.21:1, 62.1-129.1. It also notes: "Since 1997, the General Assembly has on 17 occasions considered bills adding sexual orientation to various nondiscrimination statutes. The General Assembly repeatedly has rejected these proposals and has declined to change the Commonwealth’s public policy by adding sexual orientation to its statutes barring discrimination in a variety of contexts, including employment. In fact, the General Assembly earlier this month again declined to adopt this public policy during the current legislative session."
Given all that background, the Attorney General's conclusion seems to me not only plausible, but perhaps inescapable.
I'm surprised, however, that there was no mention of the Supreme Court's decision in Boynton. In that 2006 case, the Supreme Court held that the Virginia Personnel Act, the execution of which is to be directed by the Governor, does not apply to present and former employees of the Office of the Attorney General. It seems possible that the Governor's claim of authority is the weakest with respect to those segments of the state's work force similarly exempted under Va. Code 2.2-2905, which include:
1. Officers and employees for whom the Constitution specifically directs the manner of selection; 2. Officers and employees of the Supreme Court and the Court of Appeals; 3. Officers appointed by the Governor, whether confirmation by the General Assembly or by either house thereof is required or not; 4. Officers elected by popular vote or by the General Assembly or either house thereof; 5. Members of boards and commissions however selected; 6. Judges, referees, receivers, arbiters, masters and commissioners in chancery, commissioners of accounts, and any other persons appointed by any court to exercise judicial functions, and jurors and notaries public; 7. Officers and employees of the General Assembly and persons employed to conduct temporary or special inquiries, investigations, or examinations on its behalf; 8. The presidents, and teaching and research staffs of state educational institutions; 9. Commissioned officers and enlisted personnel of the National Guard and the naval militia; 10. Student employees in institutions of learning, and patient or inmate help in other state institutions; 11. Upon general or special authorization of the Governor, laborers, temporary employees and employees compensated on an hourly or daily basis; 12. County, city, town and district officers, deputies, assistants and employees; 13. The employees of the Virginia Workers' Compensation Commission; 14. The officers and employees of the Virginia Retirement System; 15. Employees whose positions are identified by the State Council of Higher Education and the boards of the Virginia Museum of Fine Arts, The Science Museum of Virginia, the Jamestown-Yorktown Foundation, the Frontier Culture Museum of Virginia, the Virginia Museum of Natural History and The Library of Virginia, and approved by the Director of the Department of Human Resource Management as requiring specialized and professional training; 16. Employees of the State Lottery Department; 17. Production workers for the Virginia Industries for the Blind Sheltered Workshop programs; 18. Employees of the Virginia Commonwealth University Health System Authority; 19. Employees of the University of Virginia Medical Center; 20. In executive branch agencies the employee who has accepted serving in the capacity of chief deputy, or equivalent, and the employee who has accepted serving in the capacity of a confidential assistant for policy or administration; 21. Employees of Virginia Correctional Enterprises; 22. Officers and employees of the Virginia Port Authority; 23. Employees of the Virginia College Savings Plan; 24. Directors of state facilities operated by the Department of Mental Health, Mental Retardation and Substance Abuse Services employed or reemployed by the Commissioner after July 1, 1999, under a contract pursuant to § 37.2-707; 25. The Director of the Virginia Office for Protection and Advocacy; and 26. Employees of the Virginia Tobacco Settlement Foundation.
(I suppose a similar point is made in footnote 23, which says: "Moreover, the Governor’s authority to set policy is limited to the executive branch. See § 2.2-103(A). Executive Order No. 1 attempts to regulate 'all facets of state government.' See Exec. Order No. 1, 18:11 Va. Reg. Regs. 1431 (Feb. 11, 2002), revised 22:10 Va. Reg. Regs. 1701 (Jan. 23, 2006). The term, 'all facets,' would include the legislative and judicial branches of state government. To the extent the Executive Order is appropriate, it can only apply to the executive branch.")
A lot of the discussion in the McDonnell opinion did not really make sense to me, until I re-read the executive order, which purports to declare the "firm and unwavering policy" of the Commonwealth. "Public policy" is the basis for the law of wrongful discharge in Virginia. An enterprising plaintiff's lawyer might take Governor Kaine's declaration of public policy and use it as a basis for a Bowman claim against a private employer. I think part of the Attorney General's opinion is addressed to preclude that argument.
UPDATE: Here is Claire Gastanaga's post on the AG opinion. Respectfully, I disagree with just about everything she said. With regard to the "activism" charge, I'm not sure what that means any more, but I have been loosely following the discussion about Justice Breyer's book, as the counterpoint to Justice Scalia's book, having read neither. The latest discussion I heard about this suggested that one difference between Breyer and Scalia was that Breyer was more concerned about making a statute doing what it was supposed to do, in spite of the text if necessary, while Scalia would rather sooner see the statute fail of its purpose than go beyond the text. This AG opinion seems to me the product of the latter kind of decisionmaking. It contains no discussion at all of the merits of the policy at issue. In that sense, the charge that the Attorney General will let politics dictate his legal analysis is, in my view, wholly unsustainable.
Maybe I'll try a flu shot next year
Stuff to think about for next flu season:
1. Get a flu shot (which I have never done).
2. Don't have lunch with people from the firm who have the flu (which I apparently have done).
1. Get a flu shot (which I have never done).
2. Don't have lunch with people from the firm who have the flu (which I apparently have done).
Wednesday, February 22, 2006
More on Russell County as the new India
The Christian Science Monitor has this report on tech jobs being moved to places like Lebanon, Virginia, instead of overseas.
The article says in part:
"In a crook of Clinch Valley in Lebanon, Va., there are no counterculture coffeehouses, no art museums, and the 'ginger' salad dressing at the town's only Japanese restaurant is really Thousand Island.
Despite its country couture, Lebanon (pop. 3,300), once betrothed to King Coal, is on the cutting edge of a new business trend. The farmshoring phenomenon, in which high-tech companies choose to open offices in rural America as opposed to India, China, or Mexico, is coming to this mid-Appalachian plateau."
The article says in part:
"In a crook of Clinch Valley in Lebanon, Va., there are no counterculture coffeehouses, no art museums, and the 'ginger' salad dressing at the town's only Japanese restaurant is really Thousand Island.
Despite its country couture, Lebanon (pop. 3,300), once betrothed to King Coal, is on the cutting edge of a new business trend. The farmshoring phenomenon, in which high-tech companies choose to open offices in rural America as opposed to India, China, or Mexico, is coming to this mid-Appalachian plateau."
Twenty year variance below guidelines is unreasonable
In U.S. v. Moreland, the Fourth Circuit in an opinion by Chief Judge Wilkins, joined by Judge Luttig and District Judge Kelley from the E.D. Va., concluded that West Virginia District Judge Goodwin erred by imposing a ten year sentence when the guidelines would call for 30 years.
Professor Berman has this interesting post about the decision.
Professor Berman has this interesting post about the decision.
On the perils of changing hunting laws
The University of Virginia's College of Arts and Sciences online has this article about research that resulted in the conclusion: "Laws designed to control the deer population seem to have had an unintended effect on accidental shootings."
Cake hits ground, cake-maker kills husband, but she didn't mean to do it
According to this story in the Norfolk paper, "Lawyer argues fatal fight over cake wasn't premeditated."
Tuesday, February 21, 2006
The jazz singer
The Staunton paper has this interesting profile of a Virginia lawyer turned professional singer.
Fewer college applicants will say what is their race
This Roanoke Times article says that 20% of the latest Virginia Tech applicants did not answer the question about race.
Unrelated to this, I see this story titled: "Law Schools' Emphasis on LSAT Scores Hurts Black Applicants, Report Says."
Unrelated to this, I see this story titled: "Law Schools' Emphasis on LSAT Scores Hurts Black Applicants, Report Says."
Monday, February 20, 2006
On the late great Curt Gowdy
The word is out that Curt Gowdy has died. Dick Vitale has this typically understated remembrance of Gowdy.
I think of him as the host of American Sportsman but even moreso calling the NFL games for NBC with Al De Rogatis, particular this terrible one, when the Raiders knocked out the Dolphins from going to their fourth-straight Super Bowl.
I think of him as the host of American Sportsman but even moreso calling the NFL games for NBC with Al De Rogatis, particular this terrible one, when the Raiders knocked out the Dolphins from going to their fourth-straight Super Bowl.
Sunday, February 19, 2006
Virginia had more black lawyers in 1890 than there were in 1960
So says a law professor writing a book about early black lawyers in Virginia, quoted in this Roanoke Times article about A.J. Oliver, the first black lawyer in Roanoke.
The article says:
"According to Hylton, Oliver was part of a wave of black attorneys who began appearing in Virginia in the last decades of the 19th century. Increased opportunities for blacks after the Civil War was one reason; low standards for admission to the bar didn't hurt. Applicants, white or black, often just had to pass an oral test administered by a judge or magistrate.
By Hylton's count, there were 35 black lawyers in Virginia in 1890 and 53 by 1900.
Ironically, the numbers began to fall again as Jim Crow laws excluded blacks from many public institutions. More rigorous written testing for lawyers didn't help. For many decades, the number of black lawyers in Virginia languished."
The article says:
"According to Hylton, Oliver was part of a wave of black attorneys who began appearing in Virginia in the last decades of the 19th century. Increased opportunities for blacks after the Civil War was one reason; low standards for admission to the bar didn't hurt. Applicants, white or black, often just had to pass an oral test administered by a judge or magistrate.
By Hylton's count, there were 35 black lawyers in Virginia in 1890 and 53 by 1900.
Ironically, the numbers began to fall again as Jim Crow laws excluded blacks from many public institutions. More rigorous written testing for lawyers didn't help. For many decades, the number of black lawyers in Virginia languished."
What do J. Edgar Hoover and my wife have in common?
Hoover loved Lucy. So does my wife, who rarely wears dresses, but does wear a Vitameatavegamin t-shirt.
Strange doings by the ABA
As outlined in this Taxprof post, there has been an online debate about a new standard from the American Bar Association that appears to urge law schools to violate the law, as it says: "The requirement of a constitutional provision or statute that purports to prohibit consideration of gender, race, ethnicity or national origin in admissions or employment decisions is not a justification for a school’s non-compliance with Standard 211."
This seems like a strange thing for a bar association to be doing. The Instapundit himself said: "Legal consequences aside, though, I think the ABA is in danger of further marginalizing itself, accelerating its move from an umbrella legal-profession organization to just another political interest group."
This seems like a strange thing for a bar association to be doing. The Instapundit himself said: "Legal consequences aside, though, I think the ABA is in danger of further marginalizing itself, accelerating its move from an umbrella legal-profession organization to just another political interest group."
Saturday, February 18, 2006
On blogger's remorse
Ken Lammers has finally gotten a couple of appeals granted, and now he's dreaming about what the oral argument would be like before a panel of judges who read his blog.
Somewhat similarly, Mike and his commenters have written lately on The Most Awkward Aspect of Blogging, dealing with the people they blog about.
Somewhat similarly, Mike and his commenters have written lately on The Most Awkward Aspect of Blogging, dealing with the people they blog about.
Good headline for new judge blog story
The WSJ law blog says here: "Bush Nominates Tall and Stout Eagle Scout as N.C. Federal Judge," regarding the nomination of Frank Whitney to serve as judge of the United States District Court for the Western District of North Carolina, in Charlotte.
The case of the Bible-quoting juror
In Robinson v. Polk, the Fourth Circuit in an opinion by Judge Williams, with Judge Shedd concurring and Judge King dissenting, refused the habeas petition of a North Carolina inmate, where one of his claims was that his constitutional rights were violated because one of the jurors was citing the Bible during the deliberations on his sentence.
Evidently, the citation was not Exodus 20:13 or Romans 6:23, but instead something more like Exodus 21:23-25.
Judge King, in his dissent, says our constitutional system cannot tolerate the influence of the King James Bible on jurors: "when a jury’s deliberations have been contaminated by an improper external influence — even if that influence relates to the Bible of England’s first Stuart King — public confidence in our judicial system is undermined and the jury’s verdict must not be enforced."
Professor Berman has this interesting post about the case.
Evidently, the citation was not Exodus 20:13 or Romans 6:23, but instead something more like Exodus 21:23-25.
Judge King, in his dissent, says our constitutional system cannot tolerate the influence of the King James Bible on jurors: "when a jury’s deliberations have been contaminated by an improper external influence — even if that influence relates to the Bible of England’s first Stuart King — public confidence in our judicial system is undermined and the jury’s verdict must not be enforced."
Professor Berman has this interesting post about the case.
Class certification denied for black policyholders who were charged higher premiums by Jefferson-Pilot
In Thorn v. Jefferson-Pilot Insurance Co., the plaintiffs sought certification under Rule 23 of a class action on behalf of all African-Americans who were charged higher rates for life insurance than white customers over a period of seventy years by Jefferson-Pilot and its predecessor companies.
The District Court, by Judge Cameron Currie, denied certification, finding that "because it could not resolve Jefferson-Pilot’s statute of limitations defense on a class-wide basis, issues common to the class did not predominate over individual ones." The Fourth Circuit in an opinion by Judge Karen Williams, joined by District Judge James Dever from North Carolina with Judge Michael dissenting, affirmed the denial of class certification. The plaintiffs' claims were brought under 42 U.S.C. § 1981. The Court noted that the District Court found that several different statutes would apply for the different states. In addition, the Court noted that federal law would determine when the claims accrued, based on what the individuals knew or should have known, and "[e]xamination of whether a particular plaintiff possessed sufficient information such that he knew or should have known about his cause of action will generally require individual examination of testimony from each particular plaintiff to determine what he knew and when he knew it." The Court noted that the burden of proof falls on the plaintiffs to prove that the case meets the requirements of Rule 23, even thought the statute of limitations is an affirmative defense on which the defendant would have the ultimate burden of proof.
Addressing the claim that the members of the class more or less knew or should have known the same thing, the Court responded: "But short of the fact that the class members are all African-American and all purchased industrial life insurance policies from Jefferson-Pilot, the record reveals no information that would allow us to conclude that the class members — 1.4 million African-Americans of all ages and both sexes, who are spread out geographically over four states and temporally over 62 years — are so homogeneous that media reports and other information about dual-rate practices would affect them all in precisely the same manner. We refuse to make such broad generalizations about the class members based on nothing more than the color of their skin and inferences about their socio-economic status arising from the fact that they purchased an industrial life insurance policy from Jefferson-Pilot. To do so would be to engage in the very brand of stereotyping about which Appellants complain."
The District Court, by Judge Cameron Currie, denied certification, finding that "because it could not resolve Jefferson-Pilot’s statute of limitations defense on a class-wide basis, issues common to the class did not predominate over individual ones." The Fourth Circuit in an opinion by Judge Karen Williams, joined by District Judge James Dever from North Carolina with Judge Michael dissenting, affirmed the denial of class certification. The plaintiffs' claims were brought under 42 U.S.C. § 1981. The Court noted that the District Court found that several different statutes would apply for the different states. In addition, the Court noted that federal law would determine when the claims accrued, based on what the individuals knew or should have known, and "[e]xamination of whether a particular plaintiff possessed sufficient information such that he knew or should have known about his cause of action will generally require individual examination of testimony from each particular plaintiff to determine what he knew and when he knew it." The Court noted that the burden of proof falls on the plaintiffs to prove that the case meets the requirements of Rule 23, even thought the statute of limitations is an affirmative defense on which the defendant would have the ultimate burden of proof.
Addressing the claim that the members of the class more or less knew or should have known the same thing, the Court responded: "But short of the fact that the class members are all African-American and all purchased industrial life insurance policies from Jefferson-Pilot, the record reveals no information that would allow us to conclude that the class members — 1.4 million African-Americans of all ages and both sexes, who are spread out geographically over four states and temporally over 62 years — are so homogeneous that media reports and other information about dual-rate practices would affect them all in precisely the same manner. We refuse to make such broad generalizations about the class members based on nothing more than the color of their skin and inferences about their socio-economic status arising from the fact that they purchased an industrial life insurance policy from Jefferson-Pilot. To do so would be to engage in the very brand of stereotyping about which Appellants complain."
Could Governor Kaine ban Virginia employees from talking to Jeff Schapiro
In The Baltimore Sun Co. v. Ehrlich, the Fourth Circuit in an opinion by Judge Niemeyer, joined by Judges Luttig and Traxler, affirmed the decision by District Judge Quarles to dismiss in the Baltimore paper's constitutional challenge to the Maryland Governor's directive prohibiting state employees from speaking with two Baltimore Sun reporters.
The Court said: "Having access to relatively less information than other reporters on account of one’s reporting is so commonplace that to allow The Sun to proceed on its retaliation claim addressing that condition would 'plant the seed of a constitutional case' in 'virtually every" interchange between public official and press.'"
So, if President Bush prefers Bob Novak to Helen Thomas, that's not a First Amendment violation.
Decision of the Day has this post about the case.
The Court said: "Having access to relatively less information than other reporters on account of one’s reporting is so commonplace that to allow The Sun to proceed on its retaliation claim addressing that condition would 'plant the seed of a constitutional case' in 'virtually every" interchange between public official and press.'"
So, if President Bush prefers Bob Novak to Helen Thomas, that's not a First Amendment violation.
Decision of the Day has this post about the case.
What's the point of removing a state law claim based on federal law
According to this Jottings post, the Sixth Circuit reversed summary judgment for the employer and sent the case back to state court in Eastman v. Marine Mechanical Corp., where the plaintiff sued claiming wrongful discharge citing two federal laws as the underlying public policy and the employer removed the case. The Court said: "We hold, however, that the plaintiff’s state-law employment claim alleging wrongful discharge in violation of federal public policy does not raise a substantial federal question over which federal courts may exercise original or removal jurisdiction. . . ."
This outcome is in accord with the en banc Fourth Circuit's ruling in the rebel flag lunch box case, about reversing the panel decision about which I wrote here:
"Here, though, the claim is a creation of state law, and to say that the statute involves "a substantial question of federal law" is just not true, or if is true, the federal right applies only to state actors. In Kentucky, KRS 344.040 "mirrors Title VII of the Civil Rights Act of 1964" and therefore all the courts applying it, both state and federal, literally "use the federal standards for evaluating race discrimination claims." Smith v. Leggett Wire Co., 220 F.3d 752, 758 (6th Cir. 2000). Judge Goodwin (being from West Virginia) cites a similar West Virginia law in his dissent. By Judge Gregory's logic, all those claims are removable, but they're not. It might be good for employers if they were."
This outcome is in accord with the en banc Fourth Circuit's ruling in the rebel flag lunch box case, about reversing the panel decision about which I wrote here:
"Here, though, the claim is a creation of state law, and to say that the statute involves "a substantial question of federal law" is just not true, or if is true, the federal right applies only to state actors. In Kentucky, KRS 344.040 "mirrors Title VII of the Civil Rights Act of 1964" and therefore all the courts applying it, both state and federal, literally "use the federal standards for evaluating race discrimination claims." Smith v. Leggett Wire Co., 220 F.3d 752, 758 (6th Cir. 2000). Judge Goodwin (being from West Virginia) cites a similar West Virginia law in his dissent. By Judge Gregory's logic, all those claims are removable, but they're not. It might be good for employers if they were."
Thursday, February 16, 2006
Another inspiring lawyer's life
Read this story about a blind lawyer from New Mexico who died the other day at age 93.
It says in part:
"Santa Fe lawyer Albert T. Gonzales, who championed the poor and dispossessed during a career that spanned more than six decades, died Saturday of heart failure at his Don Gaspar Avenue home. He was 93.
Gonzales lost his eyesight after a diving accident at the age of 17. He became the first blind person to receive a Bachelor of Arts from The University of New Mexico, and the first to earn a law degree from Georgetown University . He also was the first blind person licensed to practice law in New Mexico. . . .
When Gonzales retired, he estimated that he had helped 8,000 clients in family law and about 3,000 bankruptcy clients.
Many of those clients were unable to pay their attorney, but they were able to make arrangements with Gonzales. 'Sometimes we would get bags of chile or potatoes from the poor people who lived on the farms of Northern New Mexico,' daughter Virginia Gonzales-Moench said.
'He was a one-man Legal Aid Society,' Donnelly said. 'He represented a lot of poor and indigent people. I used to see him in court every week representing someone who was quite poor. He was a very active lawyer you have to take your hat off to.' . . . ."
It says in part:
"Santa Fe lawyer Albert T. Gonzales, who championed the poor and dispossessed during a career that spanned more than six decades, died Saturday of heart failure at his Don Gaspar Avenue home. He was 93.
Gonzales lost his eyesight after a diving accident at the age of 17. He became the first blind person to receive a Bachelor of Arts from The University of New Mexico, and the first to earn a law degree from Georgetown University . He also was the first blind person licensed to practice law in New Mexico. . . .
When Gonzales retired, he estimated that he had helped 8,000 clients in family law and about 3,000 bankruptcy clients.
Many of those clients were unable to pay their attorney, but they were able to make arrangements with Gonzales. 'Sometimes we would get bags of chile or potatoes from the poor people who lived on the farms of Northern New Mexico,' daughter Virginia Gonzales-Moench said.
'He was a one-man Legal Aid Society,' Donnelly said. 'He represented a lot of poor and indigent people. I used to see him in court every week representing someone who was quite poor. He was a very active lawyer you have to take your hat off to.' . . . ."
Monday, February 13, 2006
Smoking ban advances
The Washington Post reports here that the Virginia Senate passed an indoor smoking ban on Monday, by a vote of 21-18.
I'd say the motivating force behind this is that the majority of the senators are hoping to be able to sit down in a restaurant where they can hear the music or see the TV screen or feel the fireplace or avail themselves of the next available table for the first time in years without someone in the dinner party wailing and moaning and gnashing his or her teeth.
I'd say the motivating force behind this is that the majority of the senators are hoping to be able to sit down in a restaurant where they can hear the music or see the TV screen or feel the fireplace or avail themselves of the next available table for the first time in years without someone in the dinner party wailing and moaning and gnashing his or her teeth.
On federal pleading
"Any decision declaring 'this complaint is deficient because it does not allege X' is a candidate for summary reversal, unless X is on the list in Fed. R. Civ. P. 9(b)."
So said the Seventh Circuit, in Kolupa v. Roselle Park District, per this employment law post.
So said the Seventh Circuit, in Kolupa v. Roselle Park District, per this employment law post.
Law school at Liberty hopeful on provisional accreditation vote
The Lynchburg paper reports here that the law school at Liberty University is hopeful that the American Bar Association will grant it provisional accreditation at its mid-winter meeting in Chicago.
A Northeast Tennessee lawyer's life
From the Maryville paper:
J. Paul Coleman, 87, of Maryville, formerly of Johnson City, passed away on February 11, 2006 at Shannondale of Maryville. The son of William Lewis (Joe) and Eva Lou Coleman, he was born and raised on a small farm near Pocahontas, Tennessee. He graduated from Middleton High School, Class of 1938. A veteran of World War II, he served as an infantry Staff Sargent in General George S. Patton's Third Army and participated in the major battle campaigns of Northern France, the Rhineland and Ardennes. He was awarded the Bronze Star, the Combat Infantry Badge, and the European Theater Medal with Three Bronze Stars. He received the Purple Heart for wounds inflicted during the epic Battle of the Bulge. After the War, the G.I. Bill enabled him to attend and graduate from Cumberland School of Law in 1947. He practiced law in Johnson City for over fifty years, most of which time was spent in partnership with the Law Firm of Herndon, Coleman, Brading & McKee. He forged a professional reputation in his representation of physicians and hospitals in the defense of medical malpractice litigation. He practiced law just as he conducted his personal life... possessed of integrity, intellect and civility. He served as United States Commissioner for the Eastern District of Tennessee (1966-70), and was a member of the Washington County Bar Association (President 1956-57), the Tennessee Bar Association (Vice-President 1965-67, Board of Governors 1962-65), and the Judicial Conference of the United States Court of Appeals for the Sixth Circuit. He was selected to Fellowships in the American College of Trial Lawyers, the American Bar Foundation and the Tennessee Bar Foundation. He was a longtime member of Munsey Memorial United Methodist Church, serving on the Board and as a Sunday School teacher. He was a former President of the Johnson City Lions Club and was a member of the Hurstleigh Club for over 48 years. He was a remarkable man, who remained a gentleman of honor and dignity even unto his passing.
J. Paul Coleman, 87, of Maryville, formerly of Johnson City, passed away on February 11, 2006 at Shannondale of Maryville. The son of William Lewis (Joe) and Eva Lou Coleman, he was born and raised on a small farm near Pocahontas, Tennessee. He graduated from Middleton High School, Class of 1938. A veteran of World War II, he served as an infantry Staff Sargent in General George S. Patton's Third Army and participated in the major battle campaigns of Northern France, the Rhineland and Ardennes. He was awarded the Bronze Star, the Combat Infantry Badge, and the European Theater Medal with Three Bronze Stars. He received the Purple Heart for wounds inflicted during the epic Battle of the Bulge. After the War, the G.I. Bill enabled him to attend and graduate from Cumberland School of Law in 1947. He practiced law in Johnson City for over fifty years, most of which time was spent in partnership with the Law Firm of Herndon, Coleman, Brading & McKee. He forged a professional reputation in his representation of physicians and hospitals in the defense of medical malpractice litigation. He practiced law just as he conducted his personal life... possessed of integrity, intellect and civility. He served as United States Commissioner for the Eastern District of Tennessee (1966-70), and was a member of the Washington County Bar Association (President 1956-57), the Tennessee Bar Association (Vice-President 1965-67, Board of Governors 1962-65), and the Judicial Conference of the United States Court of Appeals for the Sixth Circuit. He was selected to Fellowships in the American College of Trial Lawyers, the American Bar Foundation and the Tennessee Bar Foundation. He was a longtime member of Munsey Memorial United Methodist Church, serving on the Board and as a Sunday School teacher. He was a former President of the Johnson City Lions Club and was a member of the Hurstleigh Club for over 48 years. He was a remarkable man, who remained a gentleman of honor and dignity even unto his passing.
On living in the American Dream Town
The Roanoke paper reports here that Abingdon, Virginia has been designated the American Dream Town.
Abingdon is where I've lived mostly since 1969.
Abingdon is where I've lived mostly since 1969.
Sunday, February 12, 2006
On the museum of the United States District Court for the Eastern District of Tennessee
The Knoxville paper reports here on the museum inside the federal courthouse in Knoxville.
The article says because of courthouse security, "the small museum -- or historical suite, as the U.S. District Court Historical Society charmingly calls it -- is open by appointment only. The perk to that is museum curator Don K. Ferguson will be happy to give you a tour when he shows up to open the door. . . . It's Ferguson's firsthand knowledge of and enthusiasm for the court that enlivens a rather mundane collection of old furnishings, office supplies and judicial documents. With Ferguson as a guide, the tour turns into a living history experience."
The article says because of courthouse security, "the small museum -- or historical suite, as the U.S. District Court Historical Society charmingly calls it -- is open by appointment only. The perk to that is museum curator Don K. Ferguson will be happy to give you a tour when he shows up to open the door. . . . It's Ferguson's firsthand knowledge of and enthusiasm for the court that enlivens a rather mundane collection of old furnishings, office supplies and judicial documents. With Ferguson as a guide, the tour turns into a living history experience."
On the humble elbow as the instrument of plague abatement
Via Slate, I see that the NY Times reports here that the World Health Organization is promoting elbow bumping as the infection-free alternative greeting.
The article says in part:
"The bump, a simple touching of elbows, is a substitute for the filthy practice of shaking hands, in which a person who has politely sneezed into a palm then passes a virus to other hands, whose owners then put a finger in an eye or a pen in a mouth. The bump breaks that chain. Only a contortionist can sneeze on his elbow."
The article says in part:
"The bump, a simple touching of elbows, is a substitute for the filthy practice of shaking hands, in which a person who has politely sneezed into a palm then passes a virus to other hands, whose owners then put a finger in an eye or a pen in a mouth. The bump breaks that chain. Only a contortionist can sneeze on his elbow."
Eau de Enron
According this Enron Trial Blog post, which I saw via Concurring Opinions, a recess was called on Friday after a juror complained that she was overpowered by the cologne of LA superlawyer Daniel Petrocelli, who is counsel for the defendant Jeffrey Skilling.
The Sullivan County prosecutor on the CSI effect
In this Kingsport Times story, the prosecutor on the Tennessee side of Bristol says he's been telling jurors for 15 years that real cases are not like what they see on TV.
Virginia asbestos bill is withdrawn
The Newport News paper reports here that two Newport News lawyers led the fight against a proposed asbestos law, HB 1285, that has now been withdrawn.
The Newport News lawyers are from the Patten Wornom firm, which firm includes on the business side our old friend Steve Meade, a former Southwest Virginian and William & Mary law grad.
The Newport News lawyers are from the Patten Wornom firm, which firm includes on the business side our old friend Steve Meade, a former Southwest Virginian and William & Mary law grad.
Virginia law animated
"A pig in a bag." See Lake v. Tyree, 90 Va. 719, 19 S.E. 787 (1894); Woodrum v. Gross, 90 Va. 60, 17 S.E. 764 (1893).
"Cat out of the bag." Swann v. Com., 247 Va. 222, 232 n.6, 441 S.E.2d 195, 202 n. 6 (1994); Jenkins v. Com., 244 Va. 445, 455, 423 S.E.2d 360, 367 (1992); Mundy v. Com., 11 Va. App. 461, 469, 390 S.E.2d 525, 529 (1990); Pruett v. Com., 232 Va. 266, 271, 351 S.E.2d 1, 4 (1986).
"Cat and mouse game." McNair v. Com., 37 Va. App. 687, 696, 561 S.E.2d 26, 30 (2002); Canipe v. Com., 25 Va. App. 629, 644, 491 S.E.2d 747, 754 (1997); Satcher v. Com., 244 Va. 220, 247, 421 S.E.2d 821, 837 (1992); Iglesias v. Com., 7 Va. App. 93, 104, 372 S.E.2d 170, 176 (1988); Roenke v. Virginia Farm Bureau Mut. Ins. Co., 209 Va. 128, 134, 161 S.E.2d 704, 708 (1968).
Creeping in "like the fog 'on little cat's feet.'" Clark v. Winchester Memorial Hospital, 1984 WL 276313.
"Cock and bull story." Taylor v. Com., 208 Va. 316, 324, 157 S.E.2d 185, 191 (1967).
"The tail wagging the dog." Infants v. Virginia Housing Development Authority, 221 Va. 659, 679, 272 S.E.2d 649, 661 (1980) (Poff, J., dissenting); Rockingham County v. Town of Timberville, 201 Va. 303, 309, 110 S.E.2d 390, 395 (1959); Cogsdale v. Howard, 170 Va. 28, 32, 195 S.E. 514, 516 (1938).
"Cart before the horse." Newton v. Com., 29 Va. App. 433, 445, 512 S.E.2d 846, 851 (1999); Lovelace v. Lovelace, 237 Va. 174, 178, 375 S.E.2d 750, 753 (1989); see Reittinger v. Com., 29 Va. App. 724, 742 n.4, 514 S.E.2d 775, 784 n.4 (1999) ("No matter how appealing the cart may be, the horse must precede it.") (citation omitted); Hunter v. Norfolk Redevelopment & Housing Authority, 195 Va. 326, 338, 78 S.E.2d 893, 900 (1953).
"Gone to the dogs." Hogan v. Callas, 139 Va. 137, 123 S.E. 361, 362 (1924).
"Dead as a dodo." Norfolk County v. City of Portsmouth, 186 Va. 1032, 1043, 45 S.E.2d 136, 141 (1947).
"A dog in the fight." Transcontinental Ins. Co. v. RBMW, Inc., 262 Va. 502, 515, 551 S.E.2d 313, 320 (2001).
"Let a sleeping dog lie." Ward v. Bank of Pocahontas, 167 Va. 169, 179, 187 S.E. 491, 495 (1936).
"Leg over leg the dog went to Dover." City of Danville v. Sallie, 146 Va. 349, 355, 131 S.E. 788, 790 (1926).
"A mule by any other name is still a mule." Dials v. Lee's Hill, 41 Va. Cir. 214, 1996 WL 1065664; see also Clark v. Winn Dixie, 40 Va. Cir. 228, 1996 WL 1065588 ("You can call a mule 'Man o'War,' but that won't make him a racehorse.")
"Smelled like three day old fish." Eaton v. Com., 240 Va. 236, 264 n.4, 397 S.E.2d 385, 402 n.4 (1990).
"Shooting fish in a barrel." Hughes v. Com., 211 Va. 28, 30, 175 S.E.2d 419, 420-21 (1970).
"Running around like a little poodle dog." Payne v. Tancil, 98 Va. 262, 35 S.E. 725 (1900).
"A case of barking dog." Hannah v. Com., 153 Va. 863, 866, 149 S.E. 419, 420 (1929).
"A mad dog who should be put in a gunny sack with some bricks and dropped off a bridge." Payne v. Com., 257 Va. 216, 226, 509 S.E.2d 293, 299 (1999).
"Cat out of the bag." Swann v. Com., 247 Va. 222, 232 n.6, 441 S.E.2d 195, 202 n. 6 (1994); Jenkins v. Com., 244 Va. 445, 455, 423 S.E.2d 360, 367 (1992); Mundy v. Com., 11 Va. App. 461, 469, 390 S.E.2d 525, 529 (1990); Pruett v. Com., 232 Va. 266, 271, 351 S.E.2d 1, 4 (1986).
"Cat and mouse game." McNair v. Com., 37 Va. App. 687, 696, 561 S.E.2d 26, 30 (2002); Canipe v. Com., 25 Va. App. 629, 644, 491 S.E.2d 747, 754 (1997); Satcher v. Com., 244 Va. 220, 247, 421 S.E.2d 821, 837 (1992); Iglesias v. Com., 7 Va. App. 93, 104, 372 S.E.2d 170, 176 (1988); Roenke v. Virginia Farm Bureau Mut. Ins. Co., 209 Va. 128, 134, 161 S.E.2d 704, 708 (1968).
Creeping in "like the fog 'on little cat's feet.'" Clark v. Winchester Memorial Hospital, 1984 WL 276313.
"Cock and bull story." Taylor v. Com., 208 Va. 316, 324, 157 S.E.2d 185, 191 (1967).
"The tail wagging the dog." Infants v. Virginia Housing Development Authority, 221 Va. 659, 679, 272 S.E.2d 649, 661 (1980) (Poff, J., dissenting); Rockingham County v. Town of Timberville, 201 Va. 303, 309, 110 S.E.2d 390, 395 (1959); Cogsdale v. Howard, 170 Va. 28, 32, 195 S.E. 514, 516 (1938).
"Cart before the horse." Newton v. Com., 29 Va. App. 433, 445, 512 S.E.2d 846, 851 (1999); Lovelace v. Lovelace, 237 Va. 174, 178, 375 S.E.2d 750, 753 (1989); see Reittinger v. Com., 29 Va. App. 724, 742 n.4, 514 S.E.2d 775, 784 n.4 (1999) ("No matter how appealing the cart may be, the horse must precede it.") (citation omitted); Hunter v. Norfolk Redevelopment & Housing Authority, 195 Va. 326, 338, 78 S.E.2d 893, 900 (1953).
"Gone to the dogs." Hogan v. Callas, 139 Va. 137, 123 S.E. 361, 362 (1924).
"Dead as a dodo." Norfolk County v. City of Portsmouth, 186 Va. 1032, 1043, 45 S.E.2d 136, 141 (1947).
"A dog in the fight." Transcontinental Ins. Co. v. RBMW, Inc., 262 Va. 502, 515, 551 S.E.2d 313, 320 (2001).
"Let a sleeping dog lie." Ward v. Bank of Pocahontas, 167 Va. 169, 179, 187 S.E. 491, 495 (1936).
"Leg over leg the dog went to Dover." City of Danville v. Sallie, 146 Va. 349, 355, 131 S.E. 788, 790 (1926).
"A mule by any other name is still a mule." Dials v. Lee's Hill, 41 Va. Cir. 214, 1996 WL 1065664; see also Clark v. Winn Dixie, 40 Va. Cir. 228, 1996 WL 1065588 ("You can call a mule 'Man o'War,' but that won't make him a racehorse.")
"Smelled like three day old fish." Eaton v. Com., 240 Va. 236, 264 n.4, 397 S.E.2d 385, 402 n.4 (1990).
"Shooting fish in a barrel." Hughes v. Com., 211 Va. 28, 30, 175 S.E.2d 419, 420-21 (1970).
"Running around like a little poodle dog." Payne v. Tancil, 98 Va. 262, 35 S.E. 725 (1900).
"A case of barking dog." Hannah v. Com., 153 Va. 863, 866, 149 S.E. 419, 420 (1929).
"A mad dog who should be put in a gunny sack with some bricks and dropped off a bridge." Payne v. Com., 257 Va. 216, 226, 509 S.E.2d 293, 299 (1999).
Saturday, February 11, 2006
Anatomy of an electronic filing notice
The W.D. Va. and the E.D. Tenn. and most other federal courts now have in place the CM/ECF system, one great feature of which is that it sends out notices like this one (with annotations by PDF for Lawyers) for every document that gets filed.
Having another go at the Solomon Amendment in Williamsburg
My alma mater, William & Mary School of Law, is having another conference on the constitutionality of the Solomon Amendment. A judge from the Third Circuit, from whence the FAIR case was decided, will serve as moderator.
The last one they had (so far as I know) ended with an 8-0 vote by a group of famous Supreme Court reporters that the law schools would lose before the Supreme Court.
The last one they had (so far as I know) ended with an 8-0 vote by a group of famous Supreme Court reporters that the law schools would lose before the Supreme Court.
Friday, February 10, 2006
What goes in the Chief Justice's travel kit
One thing that he could now take with him wherever he goes is a signed photograph of Carol Channing, according to this Wonkette post.
Who says patent lawyers don't have fun?
In this Patently-O post, Dennis looks forward to citing the case of Guchi Moochie and Yamaguchi.
Thursday, February 09, 2006
Congressman Boucher says no to tiered internet
If you can read this, you probably agree with Congressman Boucher's column from The Hill stating his opposition to the telcos' efforts to create a multi-tiered Internet.
I know my Virginia blog friends frequently complain about Boucher, but I guess I was raised on his ideas about telecom and agree with maybe all of them. Indeed, I have written them down for him a couple of times - including this brief.
On a somewhat related note, I read today in the Coalfield Progress that the plan is in place to get the fiber optic lines to Rose Hill and a bunch of the other as-yet unserved places in Southwest Virginia. I applaud the people who made that happen, whatever their names or politics.
I know my Virginia blog friends frequently complain about Boucher, but I guess I was raised on his ideas about telecom and agree with maybe all of them. Indeed, I have written them down for him a couple of times - including this brief.
On a somewhat related note, I read today in the Coalfield Progress that the plan is in place to get the fiber optic lines to Rose Hill and a bunch of the other as-yet unserved places in Southwest Virginia. I applaud the people who made that happen, whatever their names or politics.
Clarke county landowners want serenity now
This article is surely one for the books - it begins:
" All is not peaceful on Ross Lane even though there is a yoga and meditation center on the end of the road.
In fact, it is the meditation center that has neighbors complaining."
The landowners claim the meditation center is not a permissive use of land in the zone where it is located. One of them was quoted as saying, "Our peace was disturbed."
" All is not peaceful on Ross Lane even though there is a yoga and meditation center on the end of the road.
In fact, it is the meditation center that has neighbors complaining."
The landowners claim the meditation center is not a permissive use of land in the zone where it is located. One of them was quoted as saying, "Our peace was disturbed."
On the role of bloggers
In this Washington Times commentary on the role of bloggers and the Supreme Court nominations, it says:
"In the Miers case, it could be argued that bloggers on the right saved the president from making a critical mistake, and nudged him onto the path that ultimately led to a enormously significant part of his presidential legacy. But bloggers on the left are pushing their party into a difficult wilderness. The angry 'net-roots' denounce any Democrat for deviating from their agenda, without a moment's thought of trying to run for re-election with a liberal record in West Virginia, North Dakota or Nebraska."
"In the Miers case, it could be argued that bloggers on the right saved the president from making a critical mistake, and nudged him onto the path that ultimately led to a enormously significant part of his presidential legacy. But bloggers on the left are pushing their party into a difficult wilderness. The angry 'net-roots' denounce any Democrat for deviating from their agenda, without a moment's thought of trying to run for re-election with a liberal record in West Virginia, North Dakota or Nebraska."
Fewer law school applicants this year
Via this Howard Bashman post, the Boston Globe reports here and the New York Times reports here that there are fewer applicants to law school this year and there were fewer last year.
On the nationality of Tennessee notaries public
The Attorney General of Tennessee has reaffirmed his earlier opinion that "the Equal Protection Clause of the United States Constitution prohibits the State from requiring that notaries public be citizens of the United States."
Wednesday, February 08, 2006
Open blog night with the Attorney General of Virginia
Here at Chad's blog you can read Bob McDonnell's answers to the questions from Chad's readers.
Chad, sparky as ever, kicked off the dialog with a question about Notre Dame football.
Chad, sparky as ever, kicked off the dialog with a question about Notre Dame football.
Sago mine survivor's wife sues brother-in-law over hospital photo
The AP is reporting that the wife of the survivor of the West Virginia mine explosion is suing her husband's brother for taking a picture of the him in the hospital and submitting to the National Enquirer.
Virginia law recognizes a civil action for "[a]ny person whose name, portrait, or picture is used without having first obtained the written consent of such person, or if dead, of the surviving consort and if none, of the next of kin, or if a minor, the written consent of his or her parent or guardian, for advertising purposes or for the purposes of trade." Va. Code § 8.01-40.
Virginia law recognizes a civil action for "[a]ny person whose name, portrait, or picture is used without having first obtained the written consent of such person, or if dead, of the surviving consort and if none, of the next of kin, or if a minor, the written consent of his or her parent or guardian, for advertising purposes or for the purposes of trade." Va. Code § 8.01-40.
Chief Judge Jones grants new hearing in the Winchester capital murder case
In an opinion of 162 pages, Chief Judge Jones of the W.D. Va. sustained one of the grounds on which convicted murderer Edward Bell based his petition for habeas relief, concluding that the petitioner is entitled to a hearing on the issue of the sufficiency of his counsel's efforts to introduce mitigating facts in the sentencing phase of his trial for the shooting of a police officer in 1999.
The Winchester paper has this article on the case. The article explains: "If Jones decides that Bell’s original defense attorneys acted properly, a new execution date could be set. However, if the judge determines that Fischel and Williams failed to present relevant evidence, Bell would be entitled to a new sentencing hearing in front of a jury."
The Winchester paper has this article on the case. The article explains: "If Jones decides that Bell’s original defense attorneys acted properly, a new execution date could be set. However, if the judge determines that Fischel and Williams failed to present relevant evidence, Bell would be entitled to a new sentencing hearing in front of a jury."
On the legality of balderdash and gadzooks in the Commonwealth
Christian Trejbal has this column in the Roanoke paper, describing his discovery that the criminal law of Virginia prohibits public profanity. Va. Code § 18.2-388. Every lawyer who has been more than few times to general district court has heard of this statute, along with the curse and abuse statute, Va. Code § 18.2-416.
The column gave me cause to recollect one of my first research projects, for a brief in the case of Kennedy's Piggly Wiggly Stores, Inc. v. Cooper, 14 Va. App. 701, 419 S.E.2d 278 (1992). The claimant had told a company executive just what he was full of, leading to the termination of his employment, and the litigation of whether his use of such language was "gross misconduct" as would disqualify him from getting unemployment. To write the brief, I looked up on Westlaw all the svere verds I knew. And, there were a lot of cases. Evidently, the panel of the Court of Appeals was familiar with words of this kind, and concluded that their use was not such a big deal (notwithstanding their possible illegality).
The column gave me cause to recollect one of my first research projects, for a brief in the case of Kennedy's Piggly Wiggly Stores, Inc. v. Cooper, 14 Va. App. 701, 419 S.E.2d 278 (1992). The claimant had told a company executive just what he was full of, leading to the termination of his employment, and the litigation of whether his use of such language was "gross misconduct" as would disqualify him from getting unemployment. To write the brief, I looked up on Westlaw all the svere verds I knew. And, there were a lot of cases. Evidently, the panel of the Court of Appeals was familiar with words of this kind, and concluded that their use was not such a big deal (notwithstanding their possible illegality).
On the cost of getting married and other laws
The Norfolk paper has this article on the more obscure proposed amendments to the marriage laws of the Commonwealth, including HB 239, which would allow the fee for performing a marriage to exceed $30.
On challenges to books in the public schools
The Richmond paper had this article titled "How to challenge a book - Area parents able to question a school's reading material."
The article begins with the mother of a five year-old who was discovered to be reading about bottles of "deer" on the wall.
The article begins with the mother of a five year-old who was discovered to be reading about bottles of "deer" on the wall.
On clarity and brevity in legal writing
It says here in this post from Houston's Clear Thinkers that in the ongoing Enron trial, the government has filed this motion to prohibit the defense counsel from using the indictment in cross-examination of the government's witnesses, because it will only confuse them.
On the problem of agreements between "co-venturers"
In this one post, the ALI-ABA Partnership/LLC blog highlights what it is all about, as it describes a case in which a Maryland appeals court set forth a list of alternatives to dissolution of a closely-held corporation.
Tuesday, February 07, 2006
On life tenure
In this How Appealing post, Howard Bashman notes the passing of a judge from the Third Circuit, who was age 96, and whose last opinion came out in January 2006, from which Bashman concludes that "he took the idea of life tenure on the federal bench quite seriously."
Chad unable to resist the mule reference
We've been declared the winner of Chad's Caption Contest No. 38, raising the all-time mark to 7.33-30.67.
I realize now that Chad hired on Will V. so Will would be ineligible to participate in the caption contest, which reduces the number of entries by half. Now, if he can just sign up Roy Jessee . . . .
I realize now that Chad hired on Will V. so Will would be ineligible to participate in the caption contest, which reduces the number of entries by half. Now, if he can just sign up Roy Jessee . . . .
Monday, February 06, 2006
On Judge Boyle, the long-time nominee to the Fourth Circuit
Via Southern Appeal, this NRO bit says now that the Supreme Court nominations are out of the way, the Senate should move on to the remaining nominees to the Courts of Appeals, and that first on the list should be Judge Boyle.
Sunday, February 05, 2006
Still more on lawyers for the poor
Last week, Hugh Lessig of the Daily Press had this column which begins:
"Virginia has been put on notice: Boost funding for legal defense of the poor or face a class-action lawsuit over a compensation system that ranks last in the nation."
"Virginia has been put on notice: Boost funding for legal defense of the poor or face a class-action lawsuit over a compensation system that ranks last in the nation."
One William & Mary law professor's view on the national security surveillance
Professor Alan Meese of William & Mary Law School offers this commentary on the national security surveillance dispute. He says in part:
"Gore, Leahy and Bush's other critics are dead wrong. The NSA surveillance is a valid exercise of the president's authority to gather intelligence necessary to prevent attacks within the United States, attacks Congress has authorized the president to pre-empt and deter. FISA and similar constraints on the president would offend the Constitution, contravene the rule of law and make us less secure."
"Gore, Leahy and Bush's other critics are dead wrong. The NSA surveillance is a valid exercise of the president's authority to gather intelligence necessary to prevent attacks within the United States, attacks Congress has authorized the president to pre-empt and deter. FISA and similar constraints on the president would offend the Constitution, contravene the rule of law and make us less secure."
Split decision for jailers on qualified immunity in suicide case
In Short v. Smoot, the Fourth Circuit in an opinion by Chief Judge Wilkins, joined by the E.D. Va.'s Judge Kelley, with Judge Gregory concurring in part and dissenting in part, reversed the denial of qualified immunity as to one group of jailers while affirming the denial of qualified immunity as to the jailer who sat watching the video monitors while the plaintiff's decedent rehearsed and implemented his suicide in a jail cell. The majority concluded that under Fourth Circuit law, the other jailers could have believed that their constitutional obligations were satisfied when the decedent was placed in a cell with video monitoring. Judge Gregory disagreed, and would have affirmed Judge Wilson's opinion as to all of the defendants. The videotape left the defendant in charge of watching the video monitor with no immunity defense.
The AP had this somewhat garbled account of the decision.
The AP had this somewhat garbled account of the decision.
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