ACSBlog links here to a district court ruling from Michigan that the President's warrantless surveillance program is unconstitutional.
The district judge is a graduate of an Ivy League law school, a woman appointed by President Carter.
The ACLU lost badly in its last big Sixth Circuit case, I would expect the same in this case.
Thursday, August 17, 2006
Collections via Poe or Stevenson
In the manner of The Gold Bug, or Treasure Island, this story:
" Armed with a court order, America Online was preparing to dig up the Massachusetts' yard of the parents of a man it sued for sending millions of unsolicited commercial spam e-mails to AOL users.
Meanwhile, the owners of the yard were preparing Wednesday to go to another court to block the excavation.
The alleged buried gold and platinum bars are suspected of being buried in a two-acre yard in Medfield. But Peggy Greenbaum, the mother of the spammer known as Davis Wolfgang Hawke, told the Associated Press that the family doesn't believe any such gold or platinum bars are buried in the yard.
'I don't care of they dig up the entire yard,' she told the AP. 'They're just going to make fools of themselves. We certainly wouldn't allow him to put any gold on our property.'
Hawke, who has used different names in the past, lost a court case to AOL, which won a $12.8 million judgment. Law enforcement authorities say they have not been able to contact him recently and that he missed a court date.
In its case before the U.S. District Court in Virginia last year, AOL produced receipts traced to Hawke for large purchases of gold and platinum. He made a fortune marketing penis enlargement pills and other e-mail spam over the Internet."
" Armed with a court order, America Online was preparing to dig up the Massachusetts' yard of the parents of a man it sued for sending millions of unsolicited commercial spam e-mails to AOL users.
Meanwhile, the owners of the yard were preparing Wednesday to go to another court to block the excavation.
The alleged buried gold and platinum bars are suspected of being buried in a two-acre yard in Medfield. But Peggy Greenbaum, the mother of the spammer known as Davis Wolfgang Hawke, told the Associated Press that the family doesn't believe any such gold or platinum bars are buried in the yard.
'I don't care of they dig up the entire yard,' she told the AP. 'They're just going to make fools of themselves. We certainly wouldn't allow him to put any gold on our property.'
Hawke, who has used different names in the past, lost a court case to AOL, which won a $12.8 million judgment. Law enforcement authorities say they have not been able to contact him recently and that he missed a court date.
In its case before the U.S. District Court in Virginia last year, AOL produced receipts traced to Hawke for large purchases of gold and platinum. He made a fortune marketing penis enlargement pills and other e-mail spam over the Internet."
Wednesday, August 16, 2006
Not much blogging going on
I've been working too much and spending too much time taking care of the invalid dog, who sure is bundle of energy for such a lame beast. She will pace around the house, falling down here and there, for an hour or two, until it is time for her breakfast at 4 am, after which she (and I) go back to sleep.
She gets a lot of dog cookies. We might be on our last box of them, but I've thought that for the last 15 or 20 boxes. She can't do it like Waldo's dog, but she will go after a cookie at top speed, such as it is. She can mostly see where the cookies go, but I wouldn't hold my thumb out too close to her when she is thinking there still might be a cookie around some where.
She gets a lot of dog cookies. We might be on our last box of them, but I've thought that for the last 15 or 20 boxes. She can't do it like Waldo's dog, but she will go after a cookie at top speed, such as it is. She can mostly see where the cookies go, but I wouldn't hold my thumb out too close to her when she is thinking there still might be a cookie around some where.
Tuesday, August 08, 2006
Local Government Attorneys of Virginia fall meeting in Roanoke
This year, the fall LGA meeting is in Roanoke.
I'm not sure, but I think the fall meeting was also there in 2001, not long after 9/11, and that was one of the best conferences I ever attended. There was a party at the house of the then-mayor, up on Mill Mountain, with a strange, fog-shrouded view of the lights of Roanoke. There was a Civil War lecture from that other Virginia Tech civil war guru, contrasting how Jefferson Davis and John C. Breckinridge dealt with the closing days and immediate aftermath of the Civil War. There was a fair-sized delegation from far Southwest Virginia, including Dean Foster, Karen Mullins, and Nancy Dickenson. And, the law lectures were good as well.
The mayor of Roanoke at that time, a fellow named Smith, was apparently a bit of a Civil War buff, and so he had a painting above the fireplace of a Civil War general from Virginia with a white beard, and the general in the painting looked quite like this Roanoke lawyer, who was also in attendance at the meeting.
I'm not sure, but I think the fall meeting was also there in 2001, not long after 9/11, and that was one of the best conferences I ever attended. There was a party at the house of the then-mayor, up on Mill Mountain, with a strange, fog-shrouded view of the lights of Roanoke. There was a Civil War lecture from that other Virginia Tech civil war guru, contrasting how Jefferson Davis and John C. Breckinridge dealt with the closing days and immediate aftermath of the Civil War. There was a fair-sized delegation from far Southwest Virginia, including Dean Foster, Karen Mullins, and Nancy Dickenson. And, the law lectures were good as well.
The mayor of Roanoke at that time, a fellow named Smith, was apparently a bit of a Civil War buff, and so he had a painting above the fireplace of a Civil War general from Virginia with a white beard, and the general in the painting looked quite like this Roanoke lawyer, who was also in attendance at the meeting.
Scary
Ray Ward picks up on my comment to his post about celebrity mugshots.
Speaking of NOLA law bloggers, Ernie linked to this provocative post about a trumpet player in an empty, destroyed neighborhood.
Speaking of NOLA law bloggers, Ernie linked to this provocative post about a trumpet player in an empty, destroyed neighborhood.
How to read a judicial opinion
Orin Kerr explains it.
That's not exactly how I read an opinion, half the time I look to see whose on the panel, who were the lawyers, who was the trial judge, who wrote the opinion - then maybe get around to the facts and the law.
That's not exactly how I read an opinion, half the time I look to see whose on the panel, who were the lawyers, who was the trial judge, who wrote the opinion - then maybe get around to the facts and the law.
Why the ABA should vote no on the Signing Statements Report
Reasons why the ABA should reject the Signing Statements Report:
1. The ABA should not be expressing its views on such matters in the first place.
2. The report makes a hash of it, as even Professor Tribe can see.
1. The ABA should not be expressing its views on such matters in the first place.
2. The report makes a hash of it, as even Professor Tribe can see.
Sunday, August 06, 2006
Tiger Woods gets win No. 50
Tiger Woods finished with a birdie to win the Buick Open by three strokes at 24 under par. It was his 50th win as a professional.
For the week, he had rounds of 66-66-66-66. That's freaky.
For the week, he had rounds of 66-66-66-66. That's freaky.
Saturday, August 05, 2006
City councilman looks likely to lose federal court challenge to city's limits on prayers at council meetings
The Fredericksburg paper reports here that Judge Spencer of the E.D. Va. doesn't think much of the arguments raised by a Fredericksburg city council member who wants to pray any way he likes when it is his turn to open city council meetings.
I don't guess the plaintiff/councilman will get to vote when the council decides whether to instruct its lawyers to go after him for attorneys' fees under 42 U.S.C. 1988.
I don't guess the plaintiff/councilman will get to vote when the council decides whether to instruct its lawyers to go after him for attorneys' fees under 42 U.S.C. 1988.
Which is more hostile and abusive toward Native Americans?
MeadWestvaco sues Buena Vista for $7 million over cancelled land deal
The Roanoke Times reports here that the big paper company has filed suit after the city changed its mind on whether to give land in an industrial park as part of an industrial development deal.
Perhaps the City will argue that the land give-away was illegal in the first place, and therefore the contract is not enforceable. Local governments are not protected by sovereign immunity from liability for breach of contract. They are, however, not generally estopped from arguing that the contracts they themselves made were illegal or ultra vires.
Perhaps the City will argue that the land give-away was illegal in the first place, and therefore the contract is not enforceable. Local governments are not protected by sovereign immunity from liability for breach of contract. They are, however, not generally estopped from arguing that the contracts they themselves made were illegal or ultra vires.
The Vermont Supreme Court ruling in the same-sex couple's custody case
Here is the opinion from the Vermont Supreme Court in the custody case being fought in Virginia and Vermont courts between two women.
The Court ruled that the Virginia court lacked jurisdiction under Vermont law. That is a strange-sounding sentence, but evidently necessary to the conclusion that the Vermont courts are not bound by the ruling of the Virginia court.
The Court observed: "Whether Virginia must enforce the Vermont visitation order is not directly involved in this appeal, but that is an entirely different question from whether full faith and credit requires the Vermont court to strike its own visitation order because the Virginia court refuses to recognize its validity based entirely on Virginia law."
The case turns in part on a federal law, the Parental Kidnapping Protection Act, 28 U.S.C. § 1738A. The presence of this federal statutory question might enhance the prospect for ultimate review by the U.S. Supreme Court, if the dispute continues long enough.
Ironically, concerns about "full faith and credit" are said to underly such initiatives as the same-sex marriage amendment on the ballot in Virginia this November, to make it less likely that Virginia courts will be bound by the decisions of courts in other states, such as Vermont - and in this case involving a Virginian the Vermont court refused to give "full faith and credit" to the decision by the Virginia court based on Virginia law.
The AP has this article about the decision.
The Court ruled that the Virginia court lacked jurisdiction under Vermont law. That is a strange-sounding sentence, but evidently necessary to the conclusion that the Vermont courts are not bound by the ruling of the Virginia court.
The Court observed: "Whether Virginia must enforce the Vermont visitation order is not directly involved in this appeal, but that is an entirely different question from whether full faith and credit requires the Vermont court to strike its own visitation order because the Virginia court refuses to recognize its validity based entirely on Virginia law."
The case turns in part on a federal law, the Parental Kidnapping Protection Act, 28 U.S.C. § 1738A. The presence of this federal statutory question might enhance the prospect for ultimate review by the U.S. Supreme Court, if the dispute continues long enough.
Ironically, concerns about "full faith and credit" are said to underly such initiatives as the same-sex marriage amendment on the ballot in Virginia this November, to make it less likely that Virginia courts will be bound by the decisions of courts in other states, such as Vermont - and in this case involving a Virginian the Vermont court refused to give "full faith and credit" to the decision by the Virginia court based on Virginia law.
The AP has this article about the decision.
On two monitors
The last time I was at the federal courthouse in Big Stone Gap, or sometime lately, I saw that Libby Sharp had two LCD monitors on her desktop. Wow, I said.
This week, Technolawyer linked to this NY Times story and this Microsoft research report on the productivity gains to be realized from using two screens at one time.
This week, Technolawyer linked to this NY Times story and this Microsoft research report on the productivity gains to be realized from using two screens at one time.
Tennessee appellate judges all get re-elected
From the TBAtoday:
"Despite organized efforts to target the defeat of two members of the Tennessee Supreme Court and members of the intermediate appellate courts, all judges were returned to the bench by unprecedented margins. TBA President Larry Wilks pronounced himself 'pleased, but not surprised' with the wisdom of Tennessee voters. 'The election was not only an endorsement of the performance of the individual judges, but also a vote of confidence in the Tennessee Plan for merit selection, evaluation and retention of our appellate bench,' said Wilks.
The campaigns by the Tennessee Medical Association, Tennessee Right to Life, TeamGOP and a Knoxville property rights group, as well as a voter guide put out by the Family Action Council of Tennessee appeared to have little if any effect on vote totals which approached 75 percent for retention. The TBA urged voters to consider the performance evaluation recommendations of the Tennessee Judicial Evaluation Commission set up under the Tennessee Plan when making their yes/no selections.
Meanwhile, the debate in several of the trial, general sessions and local judicial elections was also influenced by TBA's Fair Judicial Campaign Code of Conduct, which asked judges not to commit on how they might rule in specific cases."
Penny White is still the only appellate judge from Tennessee not to be re-elected.
"Despite organized efforts to target the defeat of two members of the Tennessee Supreme Court and members of the intermediate appellate courts, all judges were returned to the bench by unprecedented margins. TBA President Larry Wilks pronounced himself 'pleased, but not surprised' with the wisdom of Tennessee voters. 'The election was not only an endorsement of the performance of the individual judges, but also a vote of confidence in the Tennessee Plan for merit selection, evaluation and retention of our appellate bench,' said Wilks.
The campaigns by the Tennessee Medical Association, Tennessee Right to Life, TeamGOP and a Knoxville property rights group, as well as a voter guide put out by the Family Action Council of Tennessee appeared to have little if any effect on vote totals which approached 75 percent for retention. The TBA urged voters to consider the performance evaluation recommendations of the Tennessee Judicial Evaluation Commission set up under the Tennessee Plan when making their yes/no selections.
Meanwhile, the debate in several of the trial, general sessions and local judicial elections was also influenced by TBA's Fair Judicial Campaign Code of Conduct, which asked judges not to commit on how they might rule in specific cases."
Penny White is still the only appellate judge from Tennessee not to be re-elected.
On the Plaintiff's Motion to Compel Acceptance of Lunch Invitation
Via the Instapundit, here is the ruling of an Arizona trial court.
The opinion begins: "The Court has rarely seen a motion with more merit. The motion will be granted."
The opinion goes on to address the plaintiff's proposed amended complaint: "Plaintiff’s proposed amended complaint is 56 pages long and has 554 separately numbered paragraphs. It contains 19 counts. It is prolix and discursive in the extreme."
The opinion begins: "The Court has rarely seen a motion with more merit. The motion will be granted."
The opinion goes on to address the plaintiff's proposed amended complaint: "Plaintiff’s proposed amended complaint is 56 pages long and has 554 separately numbered paragraphs. It contains 19 counts. It is prolix and discursive in the extreme."
Powerful words on sentencing from Judge Young
That Judge Young in Massachusetts is one I'd go to hear speak, on about any subject.
Via AL&P, here is what he wrote at the beginning of U.S. v. Kandirakis:
"For seventeen years federal courts had been sentencing offenders unconstitutionally. Think about that. The human cost is incalculable -- thousands of Americans languish in prison under sentences that today are unconstitutional. The institutional costs are equally enormous -- for seventeen years the American jury was disparaged and disregarded in derogation of its constitutional function; a generation of federal trial judges has lost track of certain core values of an independent judiciary because they have been brought up in a sentencing system that strips the words 'burden of proof', 'evidence', and 'facts' of genuine meaning; and the vulnerability of our fair and impartial federal trial court system to attack from the political branches of our government has been exposed as never before in our history."
Via AL&P, here is what he wrote at the beginning of U.S. v. Kandirakis:
"For seventeen years federal courts had been sentencing offenders unconstitutionally. Think about that. The human cost is incalculable -- thousands of Americans languish in prison under sentences that today are unconstitutional. The institutional costs are equally enormous -- for seventeen years the American jury was disparaged and disregarded in derogation of its constitutional function; a generation of federal trial judges has lost track of certain core values of an independent judiciary because they have been brought up in a sentencing system that strips the words 'burden of proof', 'evidence', and 'facts' of genuine meaning; and the vulnerability of our fair and impartial federal trial court system to attack from the political branches of our government has been exposed as never before in our history."
Thursday, August 03, 2006
Avoiding speedy trial violations in the W.D. Va.
Chief Judge Jones of the W.D. Va. entered a new standing order in June that says theree will be no continuances unless the i's are dotted and t's are crossed such that it can be done without running afoul of the Speedy Trial Act.
Welcome, Ken Lammers
Belatedly, I am noting here that CrimLaw's Ken Lammers has decided to join up with Chad Dotson's office as an assistant Commonwealth's Attorney for Wise County.
Interestingly, he says his practice representing indigent defendants was done in by jury trials and appeals. In civil cases, the lawyer getting paid by the hour at market rates by the hour does not go broke working on jury trials and appeals.
Interestingly, he says his practice representing indigent defendants was done in by jury trials and appeals. In civil cases, the lawyer getting paid by the hour at market rates by the hour does not go broke working on jury trials and appeals.
Commentary on vacant Fourth Circuit seats
The Richmond paper opines that Fourth Circuit nominee William J. Haynes, II, should withdraw his name because he probably won't be confirmed, and make way for some deserving Virginia lawyer or judge.
Professor Tobias in the Roanoke paper opines here that President Bush should ignore the senators from North Carolina and name another deserving Virginia lawyer or judge to the seat opened by the resignation of Judge Luttig.
Who would not agree that the Fourth Circuit needs two more deserving Virginians?
Professor Tobias in the Roanoke paper opines here that President Bush should ignore the senators from North Carolina and name another deserving Virginia lawyer or judge to the seat opened by the resignation of Judge Luttig.
Who would not agree that the Fourth Circuit needs two more deserving Virginians?
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