Like a river flows

Thirty years ago today, Elvis died, at the same age as a friend of mine's dad, which is the age I am now.

At my friend's wedding, the song his mom and dad danced to was this one:

On reality

HOWT blogs here about the recently-declared and widely-publicized thesis (as here in the NY Times) that life is just somebody's computer simulation, which brought to mind the study of the Bishop Berkeley (pronounced like Charles Barkley) back in my undergraduate days at the University, as he might suggest that we have no way of figuring out for sure that we aren't just figures in a computer simulation.

Or, rather, as suggested here:

"In his two great works of metaphysics, Berkeley defends idealism by attacking the materialist alternative. What exactly is the doctrine that he's attacking? Readers should first note that “materialism” is here used to mean “the doctrine that material things exist”. This is in contrast with another use, more standard in contemporary discussions, according to which materialism is the doctrine that only material things exist. Berkeley contends that no material things exist, not just that some immaterial things exist. Thus, he attacks Cartesian and Lockean dualism, not just the considerably less popular (in Berkeley's time) view, held by Hobbes, that only material things exist. But what exactly is a material thing? Interestingly, part of Berkeley's attack on matter is to argue that this question cannot be satisfactorily answered by the materialists, that they cannot characterize their supposed material things. However, an answer that captures what exactly it is that Berkeley rejects is that material things are mind-independent things or substances. And a mind-independent thing is something whose existence is not dependent on thinking/perceiving things, and thus would exist whether or not any thinking things (minds) existed. Berkeley holds that there are no such mind-independent things, that, in the famous phrase, esse est percipi (aut percipere) — to be is to be perceived (or to perceive)."

Yeah, this is the stuff I got for what Dad paid for my tuition.

Outside the strike zone and the scope of employment?

In this post, I quoted Judge Williams' opinion in the famous case of Simmons v. Baltimore Orioles. Judge Williams recalls that at the time, it was recognized as an Opinion of the Week, by West Publishing.

Now, the question has been raised whether the club could cite Simmons in defense of any civil claims arising out of the Jose Offerman incident.

The $63,000,000,000 billion pro se lawsuit filed by a prisoner against Michael Vick

Here is a copy of the handwritten complaint, on Foxnews.com.

The complaint concludes: "Michael Vick needs to stop physically hurting my feelings and dashing my hopes."

There's quite a few Michael Vick fans who might take the same view, on that narrow point.

Today's interesting stuff

I liked this article about the bell in the courthouse for Bland County.

Here is the opinion from U.S. v. Mooney, the gun case won by a third-year student from Wake Forest. Like Mr. Mooney's counsel, I had previously understood that there were no defenses to a gun case. In the first federal criminal trial I ever saw, the hard-hitting questions from the defense were something like this: "So, Mr. ATF agent, what evidence have you really got that this gun was interstate was in interstate commerce, besides the fact it says 'Made in Germany' on the handle?"

This article by Professor Dorf says the Twombly decision is a big deal, but this comment on the article says Dorf is wrong. The question is whether Twombly will make it harder for plaintiff's counsel to plead a case in federal court that will withstand a motion to dismiss for failure to state a claim.

On Hiram Lewis

Today I got an e-mail asking that I contribute to the campaign of Hiram Lewis for Attorney General of West Virginia.

He would be a change from Mr. McGraw, I expect, for better or worse.

The big Roanoke civil case against abusive driver fees

Here is the complaint in the civil case some Roanoke lawyers have filed to get the abusive driver fee scheme declared unconstitutional.

I thought class actions were generally not recognized in Virginia state court, but they are relying on some outlier exception. I saw here that they were relying on the dicta from Judge Jones in the Wise County landfill case, with which I disagreed at the time.

The complaint raises the unlawful tax issue. I have ruminated before on the question of whether there is a way under Virginia law to get a tax refund from an unconstitutional tax.

You'd think they'd have to raise these issues in the criminal case, and lose, before they could bring some kind of glorified section 1983 case. The plaintiff might be innocent.

I wouldn't be surprised if some or all of the relief sought is barred by sovereign immunity.

On bad legal arguments

Here at Prawfsblawg they are collecting favorite bad legal arguments.

One day sitting in the Fourth Circuit, I heard an exchange that went something like this:

Lawyer: ". . . Besides, that's not my only argument."

Member of the panel: "It better not be your only argument."

Alas, I've forgotten the issue.

I can remember weird evidentiary objections at trial better than weird arguments in briefs.

One of the strangest is retold here.

One lousy settlement

"Plainly and simply, this was a scheme to defraud. It was a case of unchecked avarice coupled with a total absence of shame on the part of the original lawyers. The attorneys manipulated the legal system for their own pecuniary gain and acted against their clients’ interests by attempting to deprive them of monies to which they might otherwise be entitled. More unethical and reprehensible behavior by attorneys against their own clients is difficult to imagine."

Cortina, J., from the Florida Court of Appeals, concurring in Masztal v. City of Miami.

Must not have been a no-brainer after all

VLWBlog is reporting here that the circuit court judge in Henrico County has upheld the abusive driver fees.

Retrospective on the first women to graduate from VMI

The Roanoke paper has this interesting story, which says among other things:

"A decade ago, those in favor of keeping VMI all-male predicted that the presence of women would be the demise of the nation's oldest state-supported military school.

VMI today is in the midst of a $300 million capital campaign to renovate its older buildings and update its classrooms to attract the next generation of male and female cadets. It has a strong alumni association and has received millions of dollars in endowment funds to help with efforts such as a new leadership and ethics center that broke ground this summer.

The massive building upgrades include new athletic fields and an addition to the barracks, but won't change the cadet lifestyle of sleeping on fold-up wooden cots in rooms without air conditioning and with bathroom facilities down the hall.

As for the overall acceptance of women, there are still those who think women don't belong at VMI or in the military."

Assistant Commonwealth's attorney files defamation suit against couple he prosecuted

This story says a Southwest Virginia prosecutor has filed suit seeking money damages for defamation by a couple he prosecuted, who put up negative comments about him on their website.

Looking at the Fourth Circuit

Here's sort of a whacky take on "Fourth Circuit politics." Read all the way to the comments.

It is, however, hard to reject the basic premise of the post, that the goofiness of people acting politically is what has allowed the number of vacancies on the Court to reach such a high figure.

Virginia county boundary changes from the beginning

This page shows, among other things, that at in 1776 nearly all of today's Lee, Scott, Wise, Russell, Dickenson, and Buchanan counties were part of Washington County.

On the history of the Blue Ridge Parkway

Here is a book review from the Charlotte paper of Super Scenic Motorway: A Blue Ridge Parkway History.

In the neighborhood Monday morning

A press release from the AG's office:

"Attorney General Bob McDonnell will visit the Bristol, Virginia fire department tomorrow, Monday August 13th at 9:30AM. The Attorney General will tour the station, and meet with local firefighters, as well as Chief Walt Ford. He will be available to speak to the press at this event about public safety in the Commonwealth, and all members of the media are invited and encouraged to attend."

Yeah, net neutrality

Here is a story of AT&T not being neutral.

The headline says it all

From the Kentucky Law Review:

"Federal: California Lawyer Files Petition for Psychiatric Evaluation of Federal Judge but dismissed for lack of jurisdiction."

Here is the petition requesting the examination of Judge Coffman of the E.D. Ky.

UPDATE: By way of contrast, a Florida lawyer is trying to get a U.S. District Judge booted for religious bias, because he has hired clerks who graduated from Ave Maria and has attended "conservative" law seminars, according to this story on law.com.

On criticizing lawyer bias

From the Right:

"The Wall Street Journal has an editorial (subscrip. req'd) on the amicus brief filed by Congressmen Frank and Conyers in the Stoneridge case. The newspaper is critical of the congressmen's decision to have a law firm that does lobbying work for plaintiffs lawyers write the brief.

Quote of note: 'We trust the Supreme Court Justices, who are due to hear Stoneridge arguments as early as October, will notice the provenance of Mr. Frank's legal wisdom.."

Noted in this 10b-5 Daily post

From the Left:

"State Democratic Party Chairman William Lynch is questioning Governor Carcieri’s decision to pay a nationally known conservative lawyer to file a legal brief opposing same-sex marriage."

Noted in this Indiana Law Blog post

Who's afraid of federal court?

One group might include lawyers who haven't figured out how to deal with CM/ECF, as apparently was true in this case, where an appeal deadline was missed because the lawyer did not know about entry of an order and was not registered for CM/ECF in that court.

The first case I had with CM/ECF was in Ohio, and I thought it was cool. Now, I get so many e-mails from the W.D. Va. system. Fortunately, you can set up your profile so that your e-mails from the court also go to your assistant, or whomever else you like.

I also get the e-mails from an MDL case via a Lexis service, which is not quite as handy.

ABA drops proposal on limiting access to some criminal arrest records

BLT reports here that the ABA at its meeting in San Francisco will not act on a somewhat controversial proposal to endorse limiting public access to some criminal arrest records.

"The proposal, offered by the ABA’s Commission on Effective Criminal Sanctions, was aimed at making it easier for convicted people who have served their time, and those whose arrests never led to a conviction, to gain employment and housing without the stigma of past records that can be found in online databases and elsewhere.

. . .

The commission wanted the ABA to favor legislation at all levels, 'to the extent permitted by the First Amendment,' to restrict access to records of dismissed or acquitted indictments, and records of past convictions after a period of time, to law enforcement agencies only. But news media organizations protested that the proposal would seal off from the public a significant segment of public records that are important in holding law enforcement agencies accountable for past arrests and investigations."

This Ambrogi post via law.com has links discussing the proposal.

The media people who opposed the proposal had another idea:

"Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press . . . said the way for the commission to achieve its goal of erasing the stigma of past criminal records is not to seal the records but to make such discrimination by employers and landlords illegal."

That's not a promising concept - unless there is a corresponding limitation of the liability of employers who hire arrestees.

UPDATE: In an unrelated development, this post among others reports on how the New York Times Supreme Court reporter got the C-SPAN cameras booted from a public appearance, which suggests that no one's commitment to the ideals of the First Amendment is absolute.

On opinions from U.S. district courts

This article, titled "Docketology, District Courts, and Doctrine," by three Temple law professors, concludes:

"Our analysis supports the view that trial judges employ opinions as briefs to appellate courts, seeking to reduce the professional and personal risks arising from appellate review."

and

"We argue that judges
believe that individual decisions within cases accompanied by opinions are less likely to be reversed than those without such reasoning. Therefore, judges may write opinions – instead of mere orders – for decisions they believe will be reviewed by a higher court."

Who knew?

Also:

"We conclude that drafters of Restatements, treatises, and other qualitative descriptions of the common law remain too wedded to opinions, and ignore the ways in which the dozens of judicial choices in each case, ranging from motions to compel, to partial grants of motions to dismiss, to motions in limine, together create important, unseen, limits and glosses on doctrine."

Thus, I heard stories of "the law of Buchanan County."

The article is an interesting but complicated analysis of opinion by federal district judges, and worth checking out.

Fourth Circuit reverses sanctions against counsel for post-trial peek at jurors' notes

Brian Peterson links here to the opinion from the Fourth Circuit in the Thomas case, a per curiam decision from the panel of Judges Widener, Michael, and Traxler, with Judge Widener not participating. Law.com has this article on the case.

There is no formal local rule in the W.D. Va. which is the equivalent of N.D. W.Va. Rule 47.01, although Chief Judge Jones and perhaps others have been inserting similar provisions in their orders, as stated in Chief Judge Jones' practices and procedures.

Some years before this practice came to be, I had this experience.

Concurring Opinions has this interesting post on jurors who blog about their experiences. It concludes: "Of the jurors who blog, surely the vast majority don't admit misconduct, as the juror did in the robbery case. In the rare cases in which blog entries indicate that there was potential misconduct (such as the juror who admitted to "conscious manipulaiton"), it is certainly the right and responsibility of defense attorneys to appeal the verdict. In fact, I believe that searching for blogs and internet postings of all jurors will soon be an automatic response to losing a case. It won't be long before this practice is completely ordinary, if not a requirement of being a zealous advocate."

Who did your wedding?

This New York Times article says:

"[T]hree states besides Connecticut — Alabama, Virginia and Tennessee — as well as other jurisdictions, prohibit weddings performed by ministers who do not have active ministries.

Perhaps the reference is to Va. Code 20-23, which says: "When a minister of any religious denomination shall produce before the circuit court of any county or city in this Commonwealth, or before the judge of such court or before the clerk of such court at any time, proof of his ordination and of his being in regular communion with the religious society of which he is a reputed member, or proof that he holds a local minister's license and is serving as a regularly appointed pastor in his denomination, such court, or the judge thereof, or the clerk of such court at any time, may make an order authorizing such minister to celebrate the rites of matrimony in this Commonwealth. Any order made under this section may be rescinded at any time by the court or by the judge thereof."

But, there is also Va. Code 20-25, under which "Any circuit court judge may issue an order authorizing one or more persons, resident in the circuit in which the judge sits, to celebrate the rites of marriage in the Commonwealth. Any person so authorized shall, before acting, enter into bond in the penalty of $500, with or without surety, as the court may direct."

I once heard that a certain bearded Assistant United States Attorney obtained such an order and performed a marriage ceremony.

Section 20-25 also says: "Any judge or justice of a court of record, any judge of a district court or any retired judge or justice of the Commonwealth or any active, senior or retired federal judge or justice who is a resident of the Commonwealth may celebrate the rites of marriage anywhere in the Commonwealth without the necessity of bond or order of authorization."

So, you could get a judge, if he or she was willing, to perform your rites of marriage anywhere in the Commonwealth.

UPDATE: A reader tells me his wedding was performed by a justice of the Virginia Supreme Court, and he is also aware of a wedding presided over by a Virginia sheriff.

Audio files from federal courts

This press release from the Administrative Office of U.S. Courts says:

"August 6, 2007 — Two federal courts today became the vanguard of a pilot project to make digital audio recordings of courtroom proceedings publicly available online.

The U.S. District Court in Nebraska and the U.S. Bankruptcy Court for the Eastern District of North Carolina have integrated their recording and Case Management/Electronic Case Files (CM/ECF) systems to make some audio files available the same way written files have long been available on the Internet.

Three other courts – the U.S. District Court for the Eastern District of Pennsylvania, the U.S. Bankruptcy Court in Maine, and the U.S. Bankruptcy Court for the Northern District of Alabama – plan to join the pilot project later this summer.

The audio files are accessible through the Public Access to Court Electronic Records (PACER) system. More than 700,000 subscribers already use PACER to access docket and case information from federal appellate, district, and bankruptcy courts.

Digital audio recording has been an authorized method of making an official record of court proceedings since 1999, when it was approved by the policy-making Judicial Conference of the United States.

Digital audio recording is used in most bankruptcy and district courts (where magistrate judges account for most of the usage). In addition, digital recording is used by 37 of the 642 active district judges. In courts with digital audio recording, computer disks of hearings have been available for the authorized fee of $26, but prospective purchasers have had to make a trip to the clerk of court's office.

During the six-to-12-month pilot project, Internet access to the same content will cost a minimum of 16 cents – eight cents for accessing the docket sheet and another eight cents for selecting the audio file.

The Electronic Public Access Program Office of the Administrative Office of the United States Courts will determine what the appropriate fee should be if such access becomes permanent. The impact on band-width, costs of the required technology, and other factors will be part of that determination."

On research at Bluefield State

This article from Inside Higher Ed begins:

"The government arm that oversees most federally funded research involving human subjects — encompassing methodologies from surveys and oral histories to psychology experiments and medical trials — last month informed Bluefield State College that it must suspend its relevant projects after an investigation revealed a series of alleged compliance failures.

The small historically black commuter college in southeastern West Virginia, which offers associate and bachelor’s degrees, ran into trouble when the Office for Human Research Protections sent a letter in August 2006 alleging that the campus institutional review board had approved three faculty research projects in 2004 without considering key pieces of information — such as the purpose of the studies, details on participants’ informed consent and ways to protect their privacy — and questioning whether a legitimate campus board even existed at the time."

Interesting stuff today

Hugh Lessig writes here that one rationale for the in-state only aspect of the abusive driver fees is this: "Virginia drivers would chiefly benefit from road improvements that the fees pay for, not those out-of-state commuters or beach-goers." This Post article describes the first Northern Virginia challenge to the abusive driver fees. This AP article describes the arguments in the Henrico County circuit court case.

There might be a way to make an empirical study of the effects of abusive driving by residents as opposed to non-residents, but if the issue is unclear, normally, the legislative gets to make the call - there is no constitutional requirement that the General Assembly has to operate with laser-like precision in their lawmaking.

Jerry Markon writes here in the Washington Post that the conservative majority on the Fourth Circuit has been frittered away, and that there could soon be a long-lasting Democratic majority on the Court. I think that the attempts to categorize the judges on the Fourth Circuit as liberals and conservatives is somewhat overdone, the liberals are more conservative and the conservatives are more liberal than they get credit (or blame) for being in the press. The WSJblog has this take on the article, ConfirmThem has this long take, and SC Appellate Blog has noticed it as well.

This Style Weekly article on Oliver Hill is maybe the best I've read.

Members not liable for FMLA claim against multi-jurisdictional authority

In Miller v. County of Rockingham, Judge Conrad of the W.D. Va. held that the political subdivisions that formed a regional park authority could not be sued on the FMLA claim of an employee of the authority.

Good dog, bad dog

Via the George Allen blog, here is a ode to a dog named Free, by the Richmond paper's Ross Mackenzie.

My day has been about taking to the upholster a chair that Jenna has been eating.

On suing Social Services over their role in a custody case

People sometimes figure out that I do some work in section 1983 litigation, and call me up wanting to sue over various Social Services departments, which they claim have violated their rights in connection with child custody matters.

And, such was the claim before Judge Moon in Nelson v. Green, in which the Court decided to stay the civil rights case while the state court proceedings were still unresolved.

When does amended complaint adding new party relate back for limitations purposes

In Justus v. Buchanan County, the jail suicide case, Chief Judge Jones of the W.D. Va. concluded that the plaintiff's amended complaint adding a new defendant would relate back for purposes of the statute of limitations to the date of the original filing as to the new defendant, where the original complaint included as defendants the Buchanan County sheriff's office, and the new complaint named the Sheriff himself, citing the Fourth Circuit's recent opinion in Goodman v. Praxair, Inc.

In Goodman, there was some dispute among the judges about whether to address the relation-back issue. Judge Niemeyer wrote in a footnote:

"In her concurring opinion, Judge Williams has stated that she would not reach the relation-back issue because it is unnecessary to the resolution of the appeal and is issued solely to provide guidance.

First, our court regularly issues opinions to provide guidance on remand in the interest of judicial efficiency. See United States v. Barile, 286 F.3d 749, 759 (4th Cir. 2002) (Williams, J.) ("Whether the excluded portion of Sheridan’s testimony is admissible absent the district court’s Rule 16 sanction is an issue that may arise again should a new trial be required on remand, and we therefore address it here"); Resolution Trust Corp. v. Allen, 16 F.3d 568, 573-74 (4th Cir. 1994) (Williams, J.) ("Although remand for the district court to address these arguments would be the normal course, we believe it would be a fruitless exercise here. The parties have thoroughly briefed the [ ] issue before us . . . . Therefore, in the interest of judicial economy . . . we will proceed to address the merits"). Accord Willingham v. Crooke, 412 F.3d 553, 561 (4th Cir. 2005); United States v. Ebersole, 411 F.3d 517, 535 (4th Cir. 2005); United States v. Ruhbayan, 460 F.3d 292, 302 (4th Cir. 2005); Studio Frames, Ltd. v. Standard Fire Ins. Co., 369 F.3d 376, 383 (4th Cir. 2004); Rowland v. Am. Gen. Fin., Inc., 340 F.3d 187, 194 (4th Cir. 2003); Knussman v. Maryland, 272 F.3d 625, 642 n.13 (4th Cir. 2001); United States v. Dickerson, 114 F.3d 464, 468 (4th Cir. 1997); Am. Trucking Ass’ns, Inc. v. Fed. Highway Admin., 51 F.3d 405, 409 (4th Cir. 1995); Klugh v. United States, 818 F.2d 294, 299 (4th Cir. 1987).

But in this case the relation-back issue is a viable dispute that has been presented to us and is much more than something to be decided as a matter of guidance. We resolve the limitations issue only as a pleading matter, holding that a Rule 12(b)(6) motion to dismiss cannot in this case dispose of the limitations issue. We do not dispose of the limitations question on the merits, as that requires further proceedings. We decide the relation-back issue because the district court’s holding on that issue is broader than the limitations issue and would, if left intact, result in an erroneous judgment if the further proceedings revealed that the amended complaint was filed outside of the limitations period. Moreover, the district court decided both issues, and both issues were appealed to us. Not deciding the relation-back issue now would leave in place an erroneous decision regardless of how the limitations issue turned out.

In addition, counsel for the parties assured the court of the viability of both issues, representing to the court at oral argument that counsel for the Praxair defendants in fact had transmitted a letter to Goodman, refusing his demand more than three years before the amended complaint was filed. Once that letter is filed with the district court, we would have to address the relation-back issue in a second appeal back-to-back with this appeal."

Judge Williams came back in her opinion with a quote from then-Judge Roberts: "[W]e should adhere to the 'cardinal principal of judicial restraint,' that 'if it is not necessary to decide more, it is necessary not to decide more.' PDK Labs., Inc., v. Drug Enforcement Admin., 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J., concurring in part and concurring in the judgment)."

It is always amusing when the appeals court judges cite each other's opinions against each other.

Judge Conrad rejects challenge to fairness of jury pool

In U.S. v. Kellam, Judge Conrad of the W.D. Va. concluded, among other things, that the inclusion of only one black person in the venire of 45 was not a per se violation of the defendant's right to a venire that represents a fair cross section of the community.

The business law of churches

Here are some useful links:

Incorporation of Churches in Virginia: A New Day and Law, by H. Robert Showers, Esq.

Virginia Church-Law Study, resulting from HB 1466, 2005

Tax Guide for Churches and Religious Organizations, Internal Revenue Service

Virginia Sales and Use Tax, Requirements for Non-profit Churches, Virginia Department of Taxation, with non-profit application and instructions and Form ST-13A.

Code of Virginia Title 57 Religious and Charitable Matters, Chapter 2 - Church Property; Benevolent Associations and Objects

Is discrimination against residents always an Equal Protection violation?

I am following from afar the clammer over the abusive driver fees.

There is at least one case I've seen, dealing with a state's implied consent law, where the residents, or some of them, get a worse deal than non-residents. Here is the discussion in that case:

"The appellant asserts that § 5-65-205 also allows for enhanced penalties for an Arkansas resident who has a valid driver's license and prior convictions, but there are no enhanced penalties for subsequent offenses committed by a resident without a license or a nonresident. The statute does provide for different penalties depending on whether (1) the person is a resident of Arkansas with a valid state driver's license, (2) the person is a resident of Arkansas without a valid state driver's license, and (3) the person is not a resident of Arkansas. However, the Equal Protection Clause does not preclude all statutory classifications. Hamilton v. Hamilton, 317 Ark. 572, 879 S.W.2d 416 (1994). Indeed, we presume the statutes passed by the General Assembly are not unconstitutional and will uphold a classification in the face of an equal protection allegation if there is any basis for the classification. McFarland v. McFarland, 318 Ark. 446, 885 S.W.2d 897 (1994). A party challenging a statute must bear the burden of proving it unconstitutional. Beck v. State, 317 Ark. 154, 876 S.W.2d 561 (1994). The appellant has the burden of proving that the act is not rationally related to achieving any legitimate objective of state government under any reasonably conceivable state of facts. Reed v. Glover, supra.

We merely consider whether any rational basis exists which demonstrates the possibility of a deliberate nexus with state objectives, so that the legislation is not the product of utterly arbitrary and capricious government purpose and void of any hint of deliberate and lawful purpose. Reed v. Glover, 319 Ark. 16, 889 S.W.2d 729 (1994). It is clear that the legislature has created varying penalties for violation of the implied consent law; it is equally clear that possession of an Arkansas driver's license carries with it the implied obligation to abide by state laws pertaining to driving. It is also significant that residents of Arkansas who drive without a valid driver's license and nonresidents who drive while their driver's license or driving privilege as a nonresident has been suspended are subject to additional punishment. See Ark.Code Ann. § 27-16-301 and § 27-16-303 (Repl.1994). Section 27-16-301 provides it is a misdemeanor for any person to violate any provisions of the Uniform Motor Vehicle Driver's License Act; the act states that no person shall drive any motor vehicle without a valid driver's license. See Ark.Code Ann. § 27-16-602 (Repl.1994). Section 27-16-303 provides that any person whose driver's license or driving privilege as a nonresident has been suspended and who drives any motor vehicle upon the highways of this state is guilty of a misdemeanor. For these reasons, it cannot be said that Section 5-65-205, and its varying punishments, are completely devoid of a legitimate purpose."

Cook v. State, 321 Ark. 641, 647-649, 906 S.W.2d 681, 685 (1995).

Oliver Hill interviews

1. VQR Winter 2004 - Julian Bond interview Oliver Hill

2. The HistoryMakers, November 18, 2003

3. National Visionary Leadership Project, 2003

4. VCU Special Collection, Voices of Freedom, November 13, 2002

5. Thomas Jefferson Center, February 2000

6. WDBJ, Channel 7, interviewing Oliver Hill and Robert Carter, July 13, 1958

7. WDBJ, Channel 7, interviewing Oliver Hill and Robert Crawford, August 1956

On Oliver Hill

Virginia -


Civil Rights Crusader, by Ellen Robertson, Michael Paul Williams, and Lindsay Kastner, Richmond Times-Dispatch

The 'last lion', by Ellen Robertson, Michael Paul Williams, and Lindsay Kastner, Richmond Times-Dispatch

Hill fought long battle to make America live up to its promise, by Michael Paul Williams, Richmond Times-Dispatch

Civil rights pioneer dies, by Neil Harvey, Roanoke Times

National -

Va. Lawyer Was at Fore of Attack on Segregation, by Adam Bernstein, Washington Post

Civil Rights Attorney Oliver Hill Dies, by Bob Lewis, Associated Press

Anti-segregationist lawyer Hill dies at 100, Reuters

Reaction to the death of Oliver W. Hill, AP:

"Oliver Hill dedicated his life to fighting against racism and pushing forward the civil rights and freedoms for generations of Americans. His dedication to this nation was further demonstrated through his military service during World War II. Oliver Hill's life serves as a lesson to all of us of how far we have come and how hard we must continue to work to keep our society moving forward."

U.S. Sen. Jim Webb, D-Va.

"Mr. Oliver Hill was a remarkable individual whose contributions toward social justice did so much to advance our society. He was among the vanguard in seeking equal opportunity for all individuals, and he was steadfast in his commitment to effect change. He will be missed, and we extend our sincere condolences to his family."

Former Gov. L. Douglas Wilder, the nation's first elected black governor, a Hill confidant and now mayor of Richmond.

"Few individuals in Virginia's rich history have worked as tirelessly as Oliver Hill to make life better for all of our citizens. His life's work was predicated on the simple truth that all men and women truly are created equal.

"With righteous determination, a sense of honor, and at considerable personal risk, Mr. Hill methodically and skillfully worked within the legal system to win landmark cases in voting rights, equal pay, better schools, and fair housing.

"As a pioneer for civil rights, an accomplished attorney, and a war veteran, Mr. Hills dedication to serving the Commonwealth and the country never failed. And, despite all of the accolades and honors he received, Mr. Hill always believed his true legacy was working to challenge the conscience of our Commonwealth and our country.

Virginia Gov. Timothy M. Kaine.

"With an unwavering sense of personal responsibility, a commitment to the idea that all men and women are created equal, and a sense of humor that kept us all laughing at his 100th birthday celebration this past May, Oliver Hill helped pave the way for equal opportunity in the commonwealth and the country.

Former Virginia Gov. Mark R. Warner.

"Both in the courtroom and in the broader court of public opinion, Oliver Hill stood bravely and forthrightly for the equality of all mankind. His tireless work ensured that the Virginia we know today is one in which all men are not only created equal, but are treated equally under the law."

Attorney General Bob McDonnell.

Flags at half-staff for civil rights leader, AP

Blogs

WSJ Law Blog - Law Blog Obituary: Oliver Hill

ACS Blog - Oliver White Hill dies at 100

Sorensen Institute Blog - In Memoriam: Oliver Hill

Wikipedia, Oliver Hill

Justice delayed

Here's a West Virginia story on Buchmeyer:

"This marvelous contribution is from Kevin A. Wiggins of Steptoe & Johnson, P.L.L.C. in Clarksburg, W.V.

Wiggins writes: "A local businessman in rural West Virginia who owns an automobile tire store wanted to retire and move to Florida. However, he couldn't find any buyers so he decided to liquidate his inventory by selling it for 90 percent less than the retail price."

The national tire chain heard what he was up to and hired Kevin's firm to obtain an injuction. They promptly went before the judge to schedule a hearing. After Wiggins explained to the judge why his client wanted the injunction, the judge said, in a southern drawl:

"I don't think I can give you a hearing until after 4:00. I have to get new tires for my car."

View from the Deerlick trail at The Homestead

Did you ever wonder where this trail goes? We used to.

On abusive driver fees

"A 'dangerous' driver is a 'dangerous' driver, whether he or she is a life-long resident of Virginia or simply passing through on his or her way to another state or country. If they are driving in a manner defined as 'dangerous' under the statute, then the resources necessary to arrest and prosecute them are the same, or, if involved in an accident, the resources necessary to transport the injured, or repair the roads. Virginia does not limit the use of its roads or its rest stops to Virginia residents; they are for all to enjoy."

Hon. Archer Yeatts, III, Henrico County General District Court, in Com. v. Price.

Judiciary Committee forwards Southwick nomination

This ACS post says:

"This afternoon, the Senate Judiciary Committee approved the nomination of Leslie Southwick to the U.S. Court of Appeals for the Fifth Circuit. The nomination -- which has proven controversial on account of Judge Southwick's record in civil rights cases and others pitting individuals against corporations -- will now face the full Senate."

A commenter says:

"How is Southwick's record controversial? Who created this controversy? It seems to me he has a sterling record. Does it worry ACS that the next Democratic president's nominees will be treated poorly too?"

Another commenter points to this article, which says in essence, where are the Democrats going to find any nominees that live up to the standard now being applied against Southwick - which is essentially this - some interest groups don't like him.

The article says:

"If "too conservative" is reason enough for Democratic senators to block a floor vote on Southwick, who is no right-wing culture warrior, then "too liberal" will be reason enough for Senate Republicans to do the same when the shoe is on the other foot."

Fun fact

"There may not be enough lawyers to feed the hiring appetite. According to our survey of summer associate hires, Am Law 200 firms expect to bring on roughly 10,000 associates next fall. That astonishing number equals about one-quarter of all the students who will graduate from U.S. law schools next year. To put it another way, the top 20 law schools will only produce about 6,500 graduates."

Annual Survey Shows the New Reality of Associate Life,
Aric Press, The American Lawyer, August 1, 2007

On writing appellate briefs

"There is a quaint notion out there that facts don’t matter on appeal — that’s where you argue about the law, facts are for sissies and trial courts. The truth is much different. The law doesn’t matter a bit, except as it applies to a particular set of facts."

Alex Kozinski, The Wrong Stuff, 1992 B.Y.U.L. Rev. 325, 330 (1992), and cited in this article, which I found via this post from Ray Ward.

I always start reading up on how to be an appellate lawyer or whatever kind of lawyer after losing one. I wish I could figure out how to get something done for my old friend in that case.

Boucher broadband bill

Via Jim Baller, here is the proposed Community Broadband Act of 2007.

More on the ABA's proposed new standard of bar passage rates for law schools

Here are some articles worth reading by anyone who cares about Appalachian School of Law or the law school at Liberty or Regent or any new(er) law school in a state where there are several:

ABA Proposal Threatens Diversity In Legal Education, 7/3/07 - "As the Patton Study showed, the proposal will put almost all of the diversity-friendly schools out-of-compliance and worsen the state of minority enrollment."

ABA Moves to Tighten Bar Standards: What it Means, 7/6/07 - "Because of the explosive growth in the corporate law sector, large number of top law students from across the country take the New York, Virginia, and California bar exams. Further, this trend will only become more pronounced in the coming years. This means that lower-ranked schools in these jurisdictions (or bordering states, who will likely be affected by the 20% graduates/70% passage rule) will be tilting into ever-greater headwinds."

The Bush Department of Education Tries to Gut Grutter Below the Radar Screen, 7/11/07 - "Officially, the Department of Education and the ABA (under pressure) are concerned about the quality of education, but this is pretty clearly also a means of limiting affirmative action at non-elite law schools. (The bar passage rates at elite law schools are sufficiently high that admissions policies would be largely unaffected by the new rule.) Students with weaker numerical qualifications coming into law school fail the bar in larger numbers than those with stronger ones; by requiring higher bar passage rates at the back end, the new standard would limit the ability of law schools to admit students with weaker numbers (but with other qualifications, including their contributions to student body diversity) at the front end."

ABA Proposes Bar Pass Rate Standard, 7/31/07 - "(1) The first slightly odd thing about this rule is that the first prong compares the school to all test takers from ABA approved schools, including out-of-state test takers. I’d like to know how out-of-state test takers do compared to in-state. In Florida they do about average; but what about, say, New York and California? Do the many out-of-staters make things easier or harder for local schools? [See (3) below for a discussion of whether a bright-line makes sense.]

(2) For law schools on the cusp, this will create real pressure to do bad things.

(A) They will have an even greater incentive to play it safe on admissions. We know that the one thing the LSAT predicts well is your ability to take tests, and the bar exam is a test. This rule will inevitably work against people with lower LSATs, and that means disproportionately against people whose families have less money and who are not white.

(B) Alternately, if these schools want to keep taking risks in admissions, they’re going to have to flunk out more students in order to only graduate those with a high probability of passing the bar. The downside of this policy is a “One L” atmosphere: schools become much more stressful, meaner, places — which may not be conducive to learning.

(C) A correlative pressure will be to teach even more to the bar; and while the bar arguably may test stuff most lawyers should know, nobody could seriously argue that a three-year bar course will tend to produce good lawyers.

(D) Lastly, for schools right on the knife edge, there will be enormous pressure to manage who takes the bar by having weak students delay test-taking: stuff all your at-risk students into one calendar year, and thus improve your outcomes in the alternate year. As a result, I predict an increase in the annual variation in the bar pass rate scores of schools in the at-risk zone.

(3) Some law schools could be in real trouble. I have absolutely no idea what the second and third time pass rates look like; it may be that enough people make it eventually so that the 80% within three tries within three years rule saves schools that would fail the first test. But I rather doubt this is true in all cases. (The conventional wisdom is that anyone can fail once but if you don’t pass on second try your chances of ever passing are quite low.)"

Between a rock and a hard place

People sometimes write to me about John Brownlee, the U.S. Attorney for the Western District of Virginia.

On his recent appearance before Congress, some say as in this post that DOJ should have been telling him to delay the Purdue deal, because it was too soft on the company. The Washington Post article says, however, that the call to the W.D. Va. prosecutors came at the request of counsel for the company - and obviously not for the purpose of replacing the deal with something more harsh. So, some like Senator Specter wanted Brownlee's office to do more, some who were sympathetic to the company wanted them to do less.

Mr. Brownlee's statement to the Judiciary Committee is here. It references, among other things, the criticism from Dr. Sally Satel, published in the Wall Street Journal, and reprinted here, who thought the Purdue deal would come at a cost to pain sufferers.

The last word on the claim of political interference in the Purdue case belongs to Chief Judge Jones, who wrote this: "It has been suggested that Purdue may have received a favorable deal from the government solely because of politics. I completely reject this claim. I have had long experience with the United States Attorney for this district, and I am convinced that neither he nor the career prosecutors who handled this case would have permitted any political interference. In fact, I am sure that they would have refused to accept a plea agreement that they did not sincerely feel was in the best interests of justice."

UPDATE: Wait, the Roanoke paper is sounding off on the same topic.

Bad driver fees declared unconstitutional in Henrico County

The AP has this report, in the Richmond paper.

UPDATE: The Attorney General's response -

"Today’s lower court decision is being appealed by the Henrico County Commonwealth’s Attorney. Therefore we will have no comment on the merits of active litigation. This office has stated that the transportation package passed by the General Assembly this session is constitutional. This office is statutorily obligated to defend the constitutionality of measures passed by the General Assembly, unless patently unconstitutional. As a matter of policy, I believe out of state drivers should be subject to the abuser fee law. The proper venue for such a change in public policy is the Virginia General Assembly."

Those pesky law professors and students

Three times in the past, I have gone to Baltimore (and not Richmond) to argue in the Fourth Circuit, and each panel included Judge Niemeyer or Judge Murnaghan or both. On one of those days, Judge Murnaghan in the weak but charming voice of his later years, elaborately greeted a third-year student and the law professor who sponsored him, and then proceeded to take the student's legal position apart, politely and thoroughly.

I thought of that day when I read the opinions in Strong v. Johnson and Williams v. Ozmint.

In Strong, a Virginia case, the issue was whether the petitioner's counsel had improperly failed to note an appeal requested by the petitioner, and the Court concluded on the limited record that the petitioner had agreed not to appeal. Judge Gregory dissented, concluding that a letter from petitioner's counsel to the State Bar should not be considered evidence that would overcome the petitioner's sworn affidavit.

In Williams, a death penalty case, the petitioner claiming ineffective assistance got his writ in District Court, but the Fourth Circuit reversed.

Williams was argued by Professor David Bruck of Washington & Lee. Strong was argued by Geoff Clemens, Student Advocate, Charleston School of Law, sponsored by then-Professor Lorri Unumb, who had that television show, "The Law with Professor Lorri."

Lawyer demographics

What do we know about the lawyers in the U.S.? Here is one set of statistics from the ABA Marketing people. It says among other things that 70 per cent of lawyers in private practice are with firms of 10 lawyers are less, as of 2000.

What do we know about the lawyers in Virginia? Here are some 2007 membership statistics from the Virginia State Bar. It says there are 26,000+ active members of the VSB in 2007, and fewer than 500 in the counties that make up the 28th, 29th, and 30th circuits.

Wes Shinn named ASL dean

Here is the press release that says Clinton W. Shinn has been named the Dean at the Appalachian School of Law.

It says in part:

" Professor Shinn practiced law in New Orleans, Louisiana for more than 25 years, concentrating in the areas of probate and estate planning, commercial transactions, oil and gas property interests, and environmental regulation.

Professor Shinn returned to full-time academia in 1999, having previously taught for two years as an assistant professor of law at the Tulane University School of Law. From 1999 until 2001, he was a member of the ASL faculty, and then was an associate professor of law at the Mississippi College School of Law from 2001 until 2006. In August 2006, he returned to Appalachian as tenured Professor of Law.

Wes Shinn is a graduate of the Tulane School of Law, where he graduated with highest honors, was elected to Order of the Coif, and served as Editor-in-Chief of the Tulane Law Review. He earned an LL.M. from the Harvard Law School in 1973. He teaches courses in Property, Secured Transactions, and Estates & Trusts at ASL. Dean Shinn has published in the legal fields of civil law obligations, secured transactions, and environmental law, and has been a frequent speaker in the areas of wills and estates. He is a Fellow of the American College of Trust and Estate Counsel, a Charter Fellow of the Louisiana Bar Foundation, and served a term as an elected delegate to the Louisiana State Bar Association."

Speaking of ASL, our annual sojourn to the Willowbrook golf course at the Breaks for the annual fundraiser tournament is fast approaching.

Could this be a title for my memoirs?

Here is Cheeseburger Steve.

This important item from the Roanoke paper suggests that the title would not appeal to former President Carter.

Local rule on ADR for the W.D. Va.

I read on the W.D. Va. website the new local rule regarding alternative dispute resolution, promulgated pursuant to 28 U.S.C. 651.

And, one thing I noticed was where it says this:

"G. Enforceability. The Court will not assist in the enforcement of any agreement, settlement, or fee arrangement from any alternative dispute resolution process which is not annexed by the Court. In all other situations, the parties may invoke any of the Court's traditional enforcement mechanisms."

So, what does it mean to have an "alternative dispute resolution process" "annexed by the Court?" I'm not sure that the answer is obvious, although there are plenty of references to "court-annexed mediation" online. It sounds like the conservative course is to either use the magistrate judge, or get a formal order referring the case to an outside mediator, and then perhaps have the settlement referenced in some manner in connection with whatever papers are filed requesting dismissal.

The next time I get a chance, I may inquire of someone who can set me straight.

UPDATE: Evidently, this has been part of Judge Conrad's standing order on ADR for years. I knew it came from somewhere. Maybe the same language is in local rules everywhere, but it is new to me.

Retailer's indemnification agreement with bankrupt manufacturer justifies stay of products liability claim

In an interesting opinion in the case of Midkiff v. Lowe's Home Centers, Inc., Judge Kiser stayed the personal injury claim against Lowe's over a defective ladder, where Lowe's had an indemnification agreement with the manufacturer, now in bankruptcy in Delaware.

Should have learned from that story about Noah

The Bristol paper has been reporting on the case of a minister and gospel radio personality from this side of Bristol, who was apprehended at a car wash in Tennessee while drunk and wearing a skirt and urinating in public and exposing himself indecently and propositioning lewdly some law enforcement officers.

Evidently, some if not all of this is illegal in Tennessee, although there may not be a statute on the skirt.

In the Bible, Noah passed out drunk, his son Ham thought it was funny, and so Noah cursed Ham's son and his descendants - a tale that has been the subject of art and literature ever since, including this image from the Sistine Chapel.

Was there a split between John Brownlee's office and Main Justice over prosecution of Purdue?

This New York Times article suggests that there were some differences between the prosecutors in the Western District of Virginia and Justice Department official in Washington, D.C., over how far to go in prosecuting Purdue Pharma.

The article is interesting, particularly after reading, via the VLW blog, this detailed and disheartening account about how the criminal prosecution in the E.D. Va. aimed at individuals, including some lawyers, connected with the failure of the Reciprocal of America has petered out. Reciprocal of America was the parent of ANLIR, also in receivership in Tennessee, and which was formerly the legal malpractice carrier endorsed by the Virginia State Bar.

On Charlottesville's drug court

At the summer meeting of the The Virginia Bar Association at the The Homestead, I heard a presentation by Judge Hogshire on Charlottesville on the drug court program he oversees. And, he spoke with a missionary's zeal, describing how he was skeptical of the program he inherited when he came on the bench, it had been started by his predecessors including Judge Swett but it was too new for anyone to have completed the program, and he didn't know how it would work. But now, he will talk at any length about the transformations he has observed in some of the lives of people who have gone through the program.

And, C-ville Weekly has this report on some recent additions to that list.

I'd say that Drug Court Graduation Day is a powerful event.

Good idea

This story about a Crohn's disease fundraiser begins:

"It's one of the most important things I'll do all year," says Jim Smith from Lynnwood.

He's talking about the 210-mile bicycle ride this weekend through Western Washington to raise money and awareness about a condition Jim has.

It's the "Get your Guts in Gear" ride for Crohn's disease and Colitis. Fortunately along the route: "There are a lot of rest stops and a lot of bathrooms," says Jim.

There ought to be a law on this

When I read this great story from the Norfolk paper, it occurred to me that there should be a legal presumption that all VMI men without heirs intended to give all to VMI.

I haven't met a VMI grad yet who didn't fit my image of VMI grads. There might be some bad apples out there, but they don't hang out where I would meet them.

The Last Great Colosseum

I like this ad for the Bristol Motor Speedway's Food City race.

Hey, that's right

I read this post, about how Senator Schumer says he will not go along with any more nominations by President Bush to the U.S. Supreme Court.

One of the commenters points out that what the Supreme Court did in Gonzalez v. Carhart was to uphold the constitutionality of an act of Congress passed with the votes of current and former legislators such as Democrat Senators Bayh, Biden, Daschle, Leahy, and Reid, and the Republican Specter.

When Senator Specter goes back to check his notes, he might see that one of his main complaints in the confirmation sessions was about the Supreme Court overturning acts of Congress.

After all this, I read here that the Chief Justice went to the hospital today.

What happened to Virginia?

Here is a book review from American Heritage of Dominion of Memories: Jefferson, Madison, and the Decline of Virginia, which fits well with the account, of how the pre-War South actively opposed the incursion of the telegraph, I read in another book recently, Mr. Lincoln's T-Mails: The Untold Story of How Abraham Lincoln Used the Telegraph to Win the Civil War, which was terrific.

Another book I should like to read

A couple of times, I've seen a fellow named Garrett Epps on C-SPAN, most recently in relation to a book about the Fourteenth Amendment, called Democracy Reborn: The Fourteenth Amendment and the Fight for Equal Rights in Post-Civil War America.

And, I've wondered, is this fellow kin to John Epps, who I know from Board of Governors of The Virginia Bar Association?

Not having the moxie to ask, I've discovered for myself that the answer is yes, and here is what Professor Epps wrote on the passing of their father, Richmond lawyer A.C. Epps - worth reading, even if you never heard of any Richmonders named Epps.

Books read lately

The father-in-law showed up on Friday with a stash of books, of which I read Sailor on Horseback by Irving Stone, a biography of Jack London, The Sportswriter by Richard Ford, Galatea by James M. Cain, and I started The Old Patagonia Express by Paul Theroux - these were part of the stash Dana's uncle the Book Snake sent to the father-in-law to read while he was recovering from surgery.

The London book is about 70 years old, the Cain book about 50 years old, the others about 30 years old.

The reason for so much reading is that I was the designated sitter of this crew, while the others went to the Virginia Highlands Festival.

More on Michael Vick

This piece looks at Michael Vick's lawyers, including Billy Martin and Daniel Meachum.

This interesting commentary from Congressman Bob Barr points out that the Interstate Commerce clause is what put Vick's case in federal court.

This Sports Illustrated piece addresses Vick's case and the impact on the image of Virginia Tech. (The author is that same guy who said Al Groh is the worst.) I prefer the view of Bob Griese, one of my all-time favorites, who said Tech is one of the best this year. I don't think Vick's legal troubles reflect poorly on Tech any more than Ralph Sampson's legal troubles reflect poorly on Virginia.

On the bad driver fees

This AP story and this Richmond paper article (by Bill McElway, so you know it's good) say that a judge in Henrico County will soon rule on the constitutionality of the new bad driver fees that were part of this year's road funding bill.

This Roanoke Times article mocks Delegates Griffith and Kilgore for getting speeding tickets on the interstate between here and Richmond.

On court-packing

There is an opinion piece in the NY Times, making the rounds, which seems to advocate changing the number of justices on the U.S. Supreme Court to get around the conservative rulings of the current Court.

It says in part:

"If the current five-man majority persists in thumbing its nose at popular values, the election of a Democratic president and Congress could provide a corrective. It requires only a majority vote in both houses to add a justice or two. Chief Justice John Roberts and his conservative colleagues might do well to bear in mind that the roll call of presidents who have used this option includes not just Roosevelt but also Adams, Jefferson, Jackson, Lincoln and Grant."

This post says yeah, but look what happened to them.

On the demise of LEO 1829

Jeff Shapiro of the Richmond paper reports here on the decision by the VSB to take a pass on LEO 1829.

It is a funny sort of contradiction. When the Rules replaced the Code in Virginia, the proscription against the appearance of impropriety was taken out, because it was thought to be too vague, yet under the Code, this vague language led to a nevertheless "bright line" rule, which LEO 1829 would have eliminated.

UPDATE: The Shapiro story contains one misleading point, with regard to the position of the LGA, or so I'm told, who in their comment to the VSB said, among other things: "There was also consensus that our members would prefer a return to the appearance of impropriety standard contained in the former Code of Professional Responsibility."

That's what I think, and a lot of Virginia lawyers think.

What some elected judges think

"As long as I am allowed to redistribute wealth from out-of-state companies to injured in-state plaintiffs, I shall continue to do so. Not only is my sleep enhanced when I give someone else's money away, but so is my job security, because the in-state plaintiffs, their families and their friends will re-elect me."

Richard Neely of the West Virginia Supreme Court, quoted on Forbes.com.

Another interesting Virginia lawyer profiled

Here is a profile of Eleanor Weston Brown, Newport News lawyer and Regent law professor, and owner of two houses and a hybrid car, among other things.

Jim Webb and Lebanon in Rolling Stone

Some government employee sent me the word about this excerpt from the Jim Webb profile in Rolling Stone magazine, which is largely about Southwest Virginia.

It begins:

"As night settles between the mountain ridges that rise on either side of Lebanon, Virginia, a rough little strip of a town in the state's southwestern corner, Sen. James Webb's people assemble in the Russell County Courthouse. They're coal miners and miners' wives, a third of them in the camouflage strike gear of the United Mine Workers, many of them wearing ball caps declaring them veterans of Korea, Vietnam or Iraq. A leather-skinned veteran named Eldridge tells me in a raspy whisper that he voted for Webb because Webb, a novelist and historian, had gotten these people, mountain people, right in his most recent book, a best-selling history of the Scots-Irish in America called Born Fighting. "We've got our own ghosts and goblins," Eldridge says, and he thinks Webb sees them. "He has the Second Sight.""

Another item I missed

VLW Blog posted here that Judge James Benton of the Virginia Court of Appeals has announced his retirement.

National media came to town for the OxyContin sentencing

I was at the Homestead on Friday, but the New York Times and Time magazine were in Abingdon to see the protesters and the proceedings before Chief Judge Jones in the criminal case.

On Judge Widener and senior status

On Friday, the Washington Post had this short article about Judge Widener. It says in part:

"The nation's longest-serving federal appellate judge has stepped down as an active member of the U.S. Court of Appeals for the 4th Circuit, leaving it with five vacancies.

Judge H. Emory Widener Jr. took senior status Tuesday, his secretary, Peg Bishop, confirmed yesterday."

On Judge Conrad

The Charlotte paper had this article on the announcement that President Bush would nominate Chief Judge Robert Conrad, Jr., of the W.D.N.C. to the long-vacant position on the Fourth Circuit formerly held by Judge Phillips, and to which Judge Boyle was nominated at different times.

Here is a friendly profile of Chief Judge Conrad.

On the flip side, ACS had this negative post about Chief Judge Conrad.

Commentary on AT&T Wireless

This article links the sole service provider for Apple's new iPhone with terrorism surveillance.

It begins:

"If you didn’t manage to snag an iPhone yet, it might not be the worst thing in the world. In addition to saving some money to pay off those pesky student loans, you also might be successfully avoiding wiretaps from the National Security Agency."

A Tiger on the Court?

If you haven't heard, it says here that the White House is nominating U.S. District Court Judge Robert Conrad, Jr., from the W.D.N.C. to the Fourth Circuit.

Judge Conrad is the one who played college ball at Clemson.

Also, SC Appellate Blog reports that Judge Widener is announcing for real that he is taking senior status.

On Michael Vick a/k/a "Ookie"

I looked at the Michael Vick indictment on PACER.

It says he and his friends called their enterprise "Bad Newz Kennels." The indictment describes dog fights in several states, and the killing of some dogs who wouldn't fight.

I'd say they wouldn't want me on the jury.

You can see the indicment here.

The record on innocence petitions

According to this story in the Richmond paper, not one of these has been granted.

The article notes: "According to a spokesman for the Virginia Court of Appeals, as of the end of 2006, 92 petitions had been filed. Eighty-five were dismissed and seven were pending."

The article also says: "Critics say that is because the law is impossibly tough."

The article quotes Senator Stolle: "I think that unless somebody is actually innocent and actually has to a large degree irrefutable evidence that they're innocent, they will not be able to take advantage of this writ of actual innocence."

On Dr. Hurwitz

This article from the NY Times about the sentence in the case of Dr. Hurwitz from Northern Virginia has mostly generated comments to the effect that he should not be sent to prison at all, for overprescribing pain medication.

All of which reminds me of the case of Dr. Nick, who wrote the prescriptions for Elvis, but was acquitted.

Unrelated to these stories, the Roanoke paper is reporting that there will be a rally against the manufacturer of OxyContin in downtown Abingdon on Friday of this week, to coincide with the hearing on the sentencing of the three manufacturer's executives. I don't recall anything like that since the Pittston strike, or maybe failed effort to enjoin the foreclosure on the hard rockin', flame-throwing FM radio station, which was said to be Abingdon's own version of "The Day the Music Died."

John Warner raises $500 in first quarter?

Those at MyDD take the lack of fundraising as a sign that Senator Warner will not run again.

The author of this Wizbang post hopes Jim Gilmore will take his place, now that he has quit the presidential race.

On Drew Weaver and the British Open

I don't know how much of the British Open I'll get to see this week, but one guy's score I'll be checking is Virginia Tech junior Drew Weaver, who as this summer's British Amateur champion will be paired up with defending Open champion Tiger Woods on Thursday and Friday.

On Richard Morgan

Glen Reynolds says he has been reading Richard Morgan.

The Richard Morgan I like to think about is the one who threw down 39 points on the Tarheels, who is now (I think) coaching down at Boone.

I'm not the only still thinking about that game.

Another one of those "litigation climate" reports likes Virginia for the defense

It says here:

"The liability climate in Virginia is conducive to growth and job creation. Virginia has the second lowest insurance loss ratios in the nation. The Commonwealth abolished joint liability and enacted reasonable limits on punitive damages among other reforms. The Virginia Supreme Court, which is elected by the General Assembly, has a rule-of-law majority. Since 1993, Virginia has elected attorneys general who were all active legal reform leaders, including the incumbent Attorney General Bob McDonnell. As a member of the House of Delegates, General McDonnell introduced several liability reform bills that were signed into law."

On George Brett

In the case of Central Manufacturing, Inc. v. Brett, the Seventh Circuit's opinion begins:

The Pine Tar Incident

It’s undisputed: George Brett was a great baseball player. The statistics from his 21 years in The Show, all with the Kansas City Royals, seal the deal: 3,154 hits, 317 home runs, and a career batting average of .305. Only three other players—Stan Musial, Hank Aaron, and Willie Mays—ended their careers with more than 3,000 hits and 300 home runs, while still maintaining a lifetime batting average over .300. Brett’s selection to the Hall of Fame, on the first ballot in 1999, was richly deserved. Yet for all his accomplishments, many who love baseball will always think of the “Pine Tar Incident” as the capstone of his career. It is a joy to recall.

It was July 24, 1983, and the Royals, trailing 4-3 to the New York Yankees, had a man on first but were down to their final out in the top half of the ninth inning. Brett was at the plate. The Yankees’ ace closer, “Goose” Gossage, was on the mound. And Brett crushed an 0-1 fastball over the 353-foot mark into the right field seats, giving Kansas City the lead, 5-4. Pandemonium broke out in the Royals’ dugout. The Yankee Stadium crowd fell silent. But things were about to change.

While the Royals were celebrating, the Yankees’ fiery manager, Billy Martin, walked calmly (unusual for him) to home plate where he engaged the umpire, Tim McClelland, in quiet conversation. Martin pointed to an obscure rule (and we sometimes think the Federal Rules of Appellate Procedure are obscure!), which provides that any substance (including pine tar) that a player might rub on his bat handle for a better grip cannot extend more than 18 inches. See Major League Baseball Official Rules § 1.10(b). Martin, pointing to a lot of pine tar on the bat Brett left behind as he circled the bases, asked McClelland to check it out. McClelland, using home plate as a ruler, determined that pine tar covered 24 inches of the bat handle. So the bat, McClelland ruled, was illegal.

With his ruling ready for delivery, McClelland took a few steps toward the jubilant Royals’ dugout and gave the signal: for using an illegal bat, the home run was nullified, and Brett was out. Game over. Yankees win 4-3. And all hell broke loose. An infuriated George Brett charged out of the dugout and rushed McClelland as Martin, who looked like the cat who ate the canary, stood off to the side. It was one of the great all-time rhubarbs in baseball history. And that’s how it ended, at least for July 24, 1983.

But baseball, like our legal system, has appellate review. The Royals protested the game and, as luck would have it, American League President Lee MacPhail (to use a phrase with which we are accustomed) “reversed and remanded for further proceedings.” The game resumed three weeks later with Kansas City ahead, 5-4. It ended after 12 minutes when Royals’ closer Dan Quisenberry shut the door on the Yankees in their half of the ninth to seal the win. The whole colorful episode is preserved, in all its glory, on YouTube, at http://www.youtube.com/watch?v=4Cu1WXylkto (last visited June 6, 2007). See also Retrosheet Boxscore, Kansas City Royals 5, New York Yankees 4, at http://www.retrosheet.org/boxesetc/1983/B07240NYA1983.htm (last visited June 6, 2007).

Lawyers miss hearing, assessed costs, because spam filter ate a hearing notice e-mailed from federal court

Via Jim Calloway, this story tells of some lawyers in Colorado who missed a hearing in federal court because they had ratcheted up their spam filter and it started treating the federal court notices as spam.

Calloway says you must white-list the courts no matter what.

The cheapskate that I am, I/we use as our spam filter a program called SpamBayes, which has no white-listing feature, and here's why. The FAQ says in part: "If you really need whitelisting, consider implementing rules in your mailer to intercept the messages before they're passed to SpamBayes." I suppose it would not be too hard to write an Outlook e-mail rule for ECF/CMF messages. Or, we might break down and buy something like InBoxer.

Why more questions is a bad thing

This HOWT post weighs proposition, the side that gets the most questions will probably lose.

Arguing an appeal is a rare thing for me, but in the trial courts usually the judge if he or she has read the papers or the cases is going to ask somebody, doesn't this fact or this case mean that you lose?

And, sometimes the answer saves the day, but more often it doesn't. The worst situation is when the court stops asking questions, because they've made up their mind and are no longer interested.

Unfortunately, in state court, where the judges have larger dockets and smaller staffs, the questions are generally less incisive.

On motions to dismiss and the Bell Atlantic case

Via this post, this article explains why the Supreme Court's decision in Bell Atlantic v. Twombly will lead to more motions to dismiss being granted, even outside the area of anti-trust law.

More on the proposed new bar passage requirements for accredited law schools

The NLJ via law.com has this article, in which various law school deans blast the ABA's proposal, referenced here, to make specific bar passage rates a mandatory condition for continued accreditation.

Only successful prognostication in the past two years

Earlier this month, a split panel of the Sixth Circuit reversed the ruling of the District Court in Michigan on the constitutionality of the NSA's terrorism surveillance program, in the case of ACLU v. NSA.

And, that's what I thought would happen, although I didn't think it would go down for lack of standing.

Watch what you ask for

ACSBlog has this amusing post about how Vice-President Cheney's effort to claim that his office is outside of the Executive Branch might re-open the cases where he has claimed some form of privilege because his office is within the Executive Branch.

On Monroe Jamison

Bluegrass picker, coal lawyer, defender of the poor, Monroe Jamison died this week, at the too young age of 52.

He and his music buddies played on the front porch at my sister's outdoor wedding. He was a mainstay of live music in Abingdon, working on the Highlands Festival for years. He was in Kiwanis with my dad. I tried a hard-fought case against him in Scott County, not too long ago, and he won it. He was a fine fellow, a good lawyer and much more than a lawyer.

The Bristol paper's obituary says, and I believe it, he leaves behind his family and "a grieving community of musicians, colleagues and close friends who cherished his intelligence, warmth, generosity, quick wit and abundant talents.

Would the Democrats put a Richmonder on the Supreme Court?

SCOTUSBlog has made a list of people who might get picked for the Supreme Court if the next president is a Democrat, and the list includes Chief Justice Hassell and Judge Gregory of the Fourth Circuit.

But, they're not on Tom Goldstein's short list.

Bad plan

The Roanoke paper reports here on the criminal case against a woman who decided to her boyfriend out by plotting to tamper with the car of the judge on his case, so the judge could not show up for court.

The article says in part:

"A woman who plotted to cut the brake lines on a judge's car was released from jail Thursday after several of the charges she faced were dropped.

. . .

At a preliminary hearing in January, a man testified that Dunford asked if he would help her find Showalter's Montgomery County home. After he pressed her, she admitted she wanted to cut his brake lines, he said.

Dunford's boyfriend, Christian Skye Crockett, was in jail on drug charges and Showalter wouldn't grant him bond. Dunford wanted to keep Showalter from showing up for court so another judge would hear Crockett's case, the man testified."

The trial judge in the girlfriend's case is retired Judge Quillen from the 30th Circuit.

Falling down in Pocahontas

This article reports on the collapse of the general store in Pocahontas.

One more on the bandwagon

Here is an editoral from Wheeling, WV, saying that the White House and the Senate need to act now to fill vacancies on the Fourth Circuit.

On wireless in Harrisonburg

Via Jim Baller, here is an update on a recent setback in the plans of the government in Harrisonburg to establish a wireless network.

Downtown Harrisonburg is kind of funky, with the courthouse on its own island in the middle of town, sort of like one of the squares in Savannah. I can't say that I ever did much good the few times I was in there, but I enjoyed being there.

On the late Lady Bird Johnson

When I was born, the President was Johnson and the First Lady was Lady Bird.

In 1965, while she was still First Lady, Lady Bird Johnson came to Abingdon, stayed at the Martha Washington Inn, and, as noted here, "bartered a potted plant for a ticket" to the Barter Theatre.

Or, so I've always heard. Actually, this version from Time Magazine says this:

"At Abingdon, the tourists attended the Barter Theater's performance of Julius Caesar, and the First Lady presented the theater's annual award to Presidential Arts Adviser Roger Stevens for his contributions as a Broadway producer. In keeping with the little theater's name, the group bargained its way past the box office: Lady Bird unwrapped another White House seedling, and Mrs. Humphrey brought a bucket of vegetables—'not to be thrown.'"

30th anniversary ignored

This article begins "The State Bar of Arizona last week had no comment regarding the practice of lawyers advertising, nor did it want to say anything about the 30th anniversary of the U.S. Supreme Court ruling on the matter."

On Eugene Derryberry

Here from the Roanoke paper is a story on the life and times of Eugene Derryberry, who was a business lawyer with the Gentry Locke firm.

The article says in part:

"Prominent Roanoke lawyer Eugene E. Derryberry would often sing and play his guitar in the middle of the afternoon to lighten up the office.

"When Gene would sing, everything in the world would be all right," said Mike Pace, a managing partner at Gentry Locke Rakes & Moore. Derryberry worked at the law firm for 34 years and was known as a mentor and a strict grammarian with a love for teaching."

I didn't know him, but I understood that he was the wise counselor for the family business of my mom's cousin's family business in downtown Roanoke. It seems to me that the Roanoke bar has (or had) a lot of interesting characters.

Lexis buys Juris

Having bought CaseMap, et al, a while back, now LexisNexis has bought Juris, as reported here.

I told the money lady that soon we will get down to two vendors, West and Lexis.

The usual challenges when these vendors get bought is whether the good customer service will continue, and whether the prices will go up.

Another corner heard from

The Bristol paper opines here that it is past time to fill the vacancies on the Fouth Circuit.