Well done, more or less

In Seguin v. Northrop Grumman, the Virginia Supreme Court in an opinion by Justice Koontz held that an order compelling arbitration is not appealable, notwithstanding loose talk in a prior opinion in the case of Amchem Products v. Asbestos Cases Plaintiffs, 264 Va. 89, 563 S.E.2d 739 (2002).

I made this argument in opposition to a petition before the Virginia Supreme Court, but the Court simply denied the petition in my case, finding no error in the ruling on arbitrability. So, I know that the Virginia arbitration act is a uniform act, and there are dozens of cases interpreting its provisions in other states, and yet in Seguin the Virginia Supreme Court chose to ignore this aspect, because ... that's the way they roll. There will never be a dispute over the Virginia Supreme Court citing foreign law, because they won't do it - they don't like to cite any non-Virginia law, even when it would make life better for Virginia lawyers, as when uniform acts are applied uniformly.

In Virginia, as in Arizona, "[t]he right to appeal is not absolute but exists only by statute." Southern California Edison Co. v. Peabody Western Coal Co., 194 Ariz. 47, 52, 977 P.2d 769, 774 (1999). Arizona’s Uniform Arbitration Act “expressly permits appeal from an order denying arbitration but is silent as to an order compelling arbitration.” Id. (citing A.R.S. § 12-2101.01). From the limited list of appealable orders, "our legislature has made its intent clear that most interlocutory orders, including those compelling arbitration, are not appealable." Id. The Court concluded that "even in an independent proceeding in which the question of arbitrability has been raised, an order compelling arbitration will always adjudicate 'fewer than all of the claims.'" Id. This rule is "good policy in an arbitration case" because it would "support the purposes of that procedure - prompt, efficient, and inexpensive dispute resolution," avoiding "a multitude of appeals . . . when arbitration might determine all issues to the parties' satisfaction." Id. at 52-53, 977 P.2d at 774-75.

Like the Arizona court, a court in Kansas cited the prefatory comment to the Uniform Arbitration Act, which says: "The section on Appeals is intended to remove doubts as to what orders are appealable and to limit appeals prior to judgment to those instances where the element of finality is present." National Educ. Association-Topeka v. Unified School Dist. No. 501, 260 Kan. 838, 841, 925 P.2d 835, 837-38 (1996) (quoting Unif. Arbitration Act, 7 U.L.A. 2 (1985)). See Southern California Edison, 194 Ariz. at 52, 977 P.2d at 774 ("our legislature has made its intent clear that most interlocutory orders, including those compelling arbitration, are not appealable. This, too, was the intent of the UAA drafters.") (citing the same Prefatory Note.) In the Kansas case, the Court went further, adding:

The chairman of the committee that drafted the uniform act explained the rationale for making certain orders, but not others, appealable: "Appeals likewise are commonly neglected in arbitration statutes. Under the new act, the appealable orders are specifically designated and are confined to those final in nature, such as orders denying motions to compel arbitration or granting motions to stay arbitration. Orders directing, or refusing to stay, arbitration are not appealable but the point at issue can be raised on appeal from an order confirming the award should one be rendered. Appeals are permitted also from the judgment or decree rendered on an award." Pirsig, The New Uniform Arbitration Act, 11 Bus. Law, April 1956, at 44, 51. (Emphasis added.)

National Educ. Association-Topeka, 260 Kan. at 841-842, 925 P.2d at 38 (citation omitted).

You'd think that Virginia Supreme Court would embrace the idea that the outcome in this case is justified in part by the purpose, structure, and drafting history of the Uniform Arbitration Act, or any uniform act.

Tennessee Supreme Court in Virginia

Today's TBAtoday says:

"Next Thursday, March 5, the Tennessee Supreme Court will hold a public meeting in Bristol on legal needs and access to justice issues in east and northeast Tennessee. The meeting will be moderated by Supreme Court Justice Gary Wade and feature a panel with state Representative Jon Lundberg, 2nd Judicial District Chancellor E.G. Moody, Sullivan County Circuit Court Clerk Tommy Kerns, private attorneys and representatives from Legal Aid of East Tennessee and the Oak Ridge office of the Legal Aid Society. The meeting begins at 3 p.m. at the Bristol Public Library, 701 Goode Street, Bristol, Va. 24201."

Funniest thing I heard said about me in 2009

Someone told me at the VBA meeting in Williamsburg that someone else had said this: "Steve Minor . . . is an acquired taste."

On the USDA broadband grant program

Southwest Virginia through LENOWISCO and other entities has been a prime beneficiary of the grant program mostly bashed in this Washington Post article, which does cite the example of Tannersville, Virginia, here in the Ninth District. The Tannersville grant was written by my sister, who also wrote the grant for Rose Hill, where she lives and works.

Speaking of Joan, here is where she uploaded a video to her blog, which she made with the Christmas present she got from her brother.

On court-packing, stacking, etc.

The Post has this on too-smart law professors thinking up ways to get the Supreme Court to do what they want.

People who are aggrieved by the Supreme Court always think of ways to change it, not because they are high-minded but because they want to get different outcomes. And, everyone knows this, and so the proposals go nowhere - now as when Jefferson was president and Marshall the Chief Justice.

Two new judges for the 29th

Daniel Gilbert reports here that Mike Bush and Richard Patterson will get district judgeships in the Russell, Buchanan, Tazewell, Dickinson district.

I never heard of Richard Patterson but that's ok, he probably never heard of me.

The Gilbert article includes some additional gratuitous John Farmer bashing from Senator Puckett, which seems lame.

On being the swami

Here it was written in 2006 that by November 2009, Mary Lynn Tate would be on the Fourth Circuit.

Here it says she has put in for the job.

From NYT to cvilleweekly

This post laments the subpoena served on my good friend Waldo Jaquith by my good friend James Creekmore in connection with some case, and here is the Motion to Quash filed by Waldo himself, and here an outline by Conrad Shumadine from Norfolk says this on the state of the law of a reporter's privilege in Virginia:

"Courts have adopted a three-part test to determine when the qualified privilege attaches. The test balances (1) whether the information is relevant, (2) whether the information can be obtained by alternative means, and (3) whether there is a compelling interest in the information. Clemente v. Clemente, 56 Va. Cir. 530 (Arlington 2001); Philip Morris Co. v. American Broadcasting Co., 36 Va. Cir. 1, 18 (Richmond 1994); Hatfill v. New York Times Co., 459 F. Supp. 2d 462, 466-67 (E.D. Va. 2006); Hatfill v. New York Times Co., No. CIV.A. 1:04CV807 CMHL, 2006 WL 4500031, at **3-4 (E.D. Va. Nov. 3, 2006)."

On bowling

I think the last time Heath Miller's team played Larry Fitzgerald's team in a "bowl," Heath had a touchdown and his team won while Larry was shut down, and Judge Chad Dotson, Roy Jessee, Mitch Mobley, Will Kimbler, and I were there, for the 2003 Continental Tire Bowl between U.Va. and Pitt.

On the weekend

This weekend in Williamsburg had plenty of highs and lows, the lows relating mainly to the fact that my term on the board of governors of The Virginia Bar Association is ended and I am now official a has-been.

The most powerful part of the weekend by far was the presentation on understanding veterans, with the images and personal accounts from the people who have been over there, and those who have treated the ones who have been over there.

Also, the real estate litigation lecture by some guy from Newport News was fascinating - that outline will get saved to the archives and e-mailed to everyone in the firm (wait, can I do that?) - it was one of those presentations that was so full of useful information that it kind of wore me out.

And, there was the roast of Mike Pace on Saturday night, but they say what happens at Providence Hall, stays at Providence Hall.

Our Fair City listed in the World's Top Seven

This article lists Bristol, with this entry -

"Bristol, Virginia, USA. As a first time honoree, Bristol made an impact after taking on incumbent telcos in court and the state legislature to win the right to deploy a fiber network called OptiNet. Conceived as a backbone serving government and schools, OptiNet has grown into a fiber-to-the-premises network for business and residents in Bristol and four neighboring counties. It has also attracted more than $50 million in private investment, including the region's first technology employers, and improved rural education and healthcare by connecting local providers to leading institutions."

Judge Wilkinson asks President Obama to go easy on the Fourth Circuit

I read this commentary by Judge Wilkinson, which may be the least comprehensible thing I ever read that he wrote. Who can tell me what he is saying?

For qualified immunity fans

Today, the Supreme Court zigged in another direction on an issue where it has both zigged and zagged, and that is the order of answering the two questions that make up the question of qualified immunity. One question is, does the plaintiff have a claim under the Constitution? The other question is, did the defendant violate the clearly-established constitutional rights of the plaintiff, of which a reasonable government official in his or her position should have known?

If the courts have to answer the merits question first, then a bunch of advisory opinions about constitutional issues get generated. If the courts can answer the "clearly-established" question first, then the law never gets any clearer, and more defendants win.

The conclusion in Pearson v. Callahan is that the courts can go whichever way works best.

You can click here to see some of what I have written in the past on qualified immunity - one of my favorite topics, and the subject of an article I wrote for the VADA some years ago.

A rural Virginia lawyer joke

Here it is, from the Washington Law Examiner.

Harsh.

Well done, guys

Lucas Hobbs and Jim Elliott from our firm were counsel for the successful appellant in the case of Virginia Highlands Airport Authority v. Singleton Auto Parts, where Justice Millette described the issue as this:

"We are presented with the novel issue whether the easement constitutes a taking of airspace requiring compensation when the property was already subject to preexisting restrictions on development imposed by the ordinance."

Civil litigation in federal court increased in 2008

A report by Law360 cited here and elsewhere says that federal court litigation was on the rise in 2008, including more employment law and products liability cases, along with more antitrust claims, more corporate bankruptcies, and more class actions.

Worth reading

From December, the Lynchburg paper reports on the retirement of Circuit Court Judge Samuel Johnston.

In Buckingham County, someone has sued the Hook for defamation.

In Tazewell County, Judge Vanover upheld the immunity of the County and the School Board in a case over the death of a student.

The long-running Fairfax County case over Episcopal church property is described again here.

The Norfolk paper investigates here why it is that Amazon.com does not collect Virginia sales tax.

On Fourth Circuit vacancies

Jonathan Adler says here the Democrats should do like was done with Judge Gregory and renominate and confirm Peter Keisler to the D.C. Circuit, citing this article by Quin Hillyer, which is also cited in this post on the Committee for Justice Blog.

Here the NRO editors suggest the same idea as to any of Bush nominees to the Fourth Circuit, including Judge Robert Conrad, Rod Rosenstein, Steve Matthews, and Judge Glen Conrad of the W.D. Va.

Somewhat more traditionally, posts here and here speculate on North Carolina Democrats who might be appointed to the long-vacant N.C. seats on the Fourth Circuit.

What are the First Amendment rights of donors in support of referenda?

In California, they say that the opponents of the recently-passed referendum to re-outlaw same-sex marriage are tracking down those that gave money to advocacy groups in support of the measure and trying to make them regret their position.

So, this lawsuit has been filed, claiming that the California law requiring disclosure of such contributions is a violation of the First Amendment rights of the donors, particularly because none of the rationale for intruding on the speech rights of donors in the usual campaign setting applies when there are no candidates to be corrupted by the cash.

I can understand that aspect, although I think the outcome of the suit depends on whether the issue comes down to standard of review - is this an incursion on First Amendment rights which must be narrowly-tailored or merely something that requires a rational basis. This I wonder.

Supreme Court history

Via John Q. Barrett, here are the proceedings of a conference of former Supreme Court clerks, discussing the 1950-1951 term, and including therein some general background of the Justices and their work.

Among the tales told is this one, about Justice William O. Douglas:

"On the thirteenth anniversary of his joining the Court, he had a little cocktail party in chambers just for those of us who were on staff. He made martinis the way he used to make them for FDR and told us about how times were back in the ‘30s in Washington where he’d been working. He remembered I’d grown up in Kansas City, Missouri, and so he recalled that he had a speaking engagement there one time and took his dog Frosty with him and was going to stay at the best hotel in town. When he got there, the hotel refused to admit him because he had his dog. So the two of them ended up in a motel. When the Chamber of Commerce found out, they were so embarrassed they sent a case of dog food to Frosty. Douglas said that thereafter, Frosty would never eat any other kind of dog food."

Lynn Dougherty's son - from Gallaudet to David Letterman

This story about the deaf son of a Bristol lawyer from the Tennessee side is really cool.

On blogging in 2009

There will be some, sooner or later.

Last week, I took off for a federal court hearing in Beckley, turned around when I heard it was cancelled, then found out it was rescheduled for the next day, turned around again and headed back up there.

That's just one adventure of many, already in 2009, but not much of it fit for this blog.

Bristol paper declares against cheap power, expensive power

Online today from the Bristol paper, one story denouncing the cost to consumers of electricity, another story bashing the coal business and looking forward to the "post-carbon era."

Meanwhile, the NYT reports here that burning coal at home is making a comeback, while declaring in favor of a gas tax.

On Straight Creek in Lee County

This month's Virginia Lawyer magazine has an article titled: "Testing the Boundaries of the Clean Water Act on the Virginia-Kentucky Border: The Coal Industry’s Proposed Use Attainability Analysis for Straight Creek in Lee County, Virginia."

The magazine says this article was written by someone who has worked for the Southern Environmental Law Center and the Appalachian Citizens' Law Center over in Whitesburg.

On government officials

The NYT opines here that prosecutors should say less about the Illinois governor.

Reports here and here say the Page County sheriff gets to keep his title for now.

In Norfolk, a lawsuit has been filed to bar the vice mayor from serving as chief deputy treasurer, claiming there is some conflict of interest.

On coal

Coal is my worst nightmare, says the next Energy Secretary.

In Kansas, they are litigating over a coal power plant.

In Surry, there is opposition to a proposed coal power plant.

In Abingdon, they are getting a Clean Coal and Natural Gas Energy Center.

In West Virginia, there is skepticism about a $3 billion coal to gas plant.

Some lending institutions are talking about divesting from coal, as if it were the new apartheid.

Thomas Jones recollects his parents' working in the mines.

In Harrisonburg, it's hard to get a lump of coal.

More on dissemination of judicial evaluation data

"With respect to dissemination of information on performance evaluation, two lessons can be drawn. First, transparency about the evaluation process and specific evaluation results benefits both the public and the judiciary. The public benefits because it is able to develop an appreciation for the role of the courts beyond the outcome-based information it is likely to receive from the mainstream media or special interest groups, and can make more informed votes in judicial elections. The courts benefit because increased public awareness of the proper modes of judicial measurement fosters an appreciation for the challenges judges face, as well as the high caliber of judges in the community. It also makes judicial elections less likely to be decided by specific issues or case outcomes, and ultimately creates a public atmosphere more accepting of judicial independence.

The second lesson is that broad dissemination is almost always preferable to limited dissemination. Making information about individual judges available to the public allows ordinary citizens to become more familiar with the judges who serve them, and to appreciate the individual strengths and weaknesses of each judge. Good judges rightly will be praised, and weaker judges will feel appropriate pressure to improve their performance. More importantly, broad dissemination allows the public to evaluate judges on neutral, relevant criteria, rather than having to rely on reports about specific case outcomes. Even summary information about the state of the judiciary as a whole assists the public in understanding the relevant metrics for measuring judicial performance. By contrast, maintaining the confidentiality of performance evaluations fails to educate the public about appropriate measurements, allows less reliable or less comprehensive surveys to fill the void (with potentially unwelcome results), and arouses public suspicion about the real quality of the judiciary.

There is some question as to whether transparency can hinder the self-improvement function of JPE. Some judges, particularly those new to the bench, may benefit from a confidential evaluation early in their service, to allow them privately to improve upon areas of weakness. There may be other occasions in which a judge’s improvement on the bench may be promoted by keeping his individual evaluation confidential. Too much confidentiality, however, may provide less incentive for judges to improve; release of information to the public is a great motivator. Therefore, even if evaluations are occasionally kept confidential, more often than not they should be made publicly available. All states should develop a dissemination strategy that maximizes transparency without sabotaging self-improvement."

Institute for the Advancement of the American Legal System, "Shared Expectations: Judicial Accountability in Context," accessed via the National Center for State Courts Judicial Performance Evaluation Resource Guide.

What I get out of this and like articles is that judicial evaluation when based on the proper criteria should get the widest-possible distribution to promote a more rational and principled discussion of retention issues, as opposed to some of the nonsense we have observed from time to time. The article suggests that judicial independence is most threatened when decisions about judges are made in the absence of informed debate.

In other words, the only people who have to worry about sunlight on these judicial evaluations are the judges whose evaluations are bad and legislators who ignore what the evaluations say. And so, the question arises, why wouldn't the Virginia Supreme Court want the General Assembly to be both empowered - and constrained - in its evaluation of judges by objective information of the best and most relevant kind - in a way that the public also can decide whether the legislators are doing the right thing? One would expect that failure to disseminate information about bad judges mostly has the effect of protecting the employment of bad judges, to the detriment of everyone else. Dissemination of positive information about good judges would make it harder for legislators to fail to keep them.

Jefferson might have agreed that what Justice Brandeis wrote in Whitney v. California - that the remedy for bad speech is more speech - applies as well to judges, but then again he might have said that Federalist idiot John Marshall sucks and we need to run him off the first chance we get.

The end of the Sierra Club case

Here is Judge Williams' opinion at the end of the Sierra Club case.

And, we won the case, so I guess there nothing more to be said.

On evaluating judges

The American Bar Association publishes something called "GUIDELINES FOR THE EVALUATION OF JUDICIAL PERFORMANCE WITH COMMENTARY."

Part of what it says is this:

"Guideline 3-4. When judicial evaluations are used to inform decision makers regarding the continuation of judges in office, results should be made readily available to those responsible for continuation decisions, including voters, governors, legislatures, and commissions.
-4.1. Those responsible for reappointing, reelecting, or retaining judges should be provided with objective summaries of evaluation results for each judge and an explanation of how to interpret the results.
-4.2. If evaluation results are provided to an individual or entity responsible for continuation decisions, and those results include assessments of a judge’s overall performance or recommendations as to whether a judge should be continued in office, judges should have an opportunity to review and respond to the evaluation report before it is disseminated.
-4.3. If evaluation results are publicly disseminated, and those results include assessments of a judge’s overall performance or recommendations as to whether a judge should continued in office, judges should have an opportunity to review, respond, and meet with members of the evaluation body before the results are made public."

Something else the paper says is this:

"Judicial evaluations based on appropriate criteria and reliable and valid methodology . . . pose no threat to the independence of the judges being evaluated."

The VLW Blog has this post which suggests the making of a constitutional crisis, as the Chief Justice and the General Assembly dicker over the limitations on the use of judicial evaluations in Virginia. Under Va. Code 17.1-100, "The Supreme Court, by rule, shall establish and maintain a judicial performance evaluation program that will provide a self-improvement mechanism for judges and a source of information for the reelection process. By September 1 of each year, the Supreme Court, or its designee, shall transmit a report of the evaluation in the final year of the term of each justice and judge whose term expires during the next session of the General Assembly to the Chairmen of the House and Senate Committees for Courts of Justice."

I have filled out a bunch of these judicial evaluation forms, including most of the circuit court judges in the 28th, 29th, and 30th circuits. If the General Assembly can't use them, then what a waste - maybe I should just start throwing them in the trash.

On federal questions

Here from the Weekly Standard is another article commenting on the comments of Judge Wilkinson of the Fourth Circuit and Judge Posner of the Seventh Circuit on the Supreme Court's D.C. gun decision in Heller.

Here is somebody's account of the Fourth Circuit's decision last year in U.S. v. Buckner, regarding search of a home computer, and affirming a decision by Judge Wilson of the W.D. Va.

Judge Richard Williams ruled against the Commonwealth in the case of the soldiers' ballots from overseas, according to articles such as this one. This story says the General Assembly is going to modify the laws prohibiting the wearing of campaign stuff in the polling place, which laws might otherwise violate the First Amendment.

Here is a goofy Washington Post story on squabbling among my good friends on the Sixth Circuit, and here are here are comments on the Post's story.

Judge Paul

Here you can see from the Time/Life archives a photo from 1958 of Judge John Paul of the United States District Court for the Western District of Virginia.

This is surely one of my favorite pictures of W.D. Va. judges, along with this one of Alexander Rives and this one of Alfred Barksdale.

Who are the best D.C. lawyers?

Here's former VBA president Glenn Lewis on the cover of the 2009 edition of Washington DC's Best Lawyers.

Glenn Lewis is about as interesting a fellow as I ever expect to meet.

If a tree's rights are violated in the woods but nobody hears it, does it make a sound?

In Hedgpeth v. Pulido, the U.S. Supreme Court explained yesterday in essence that when the trial court commits certain kinds of error with regard to the jury instructions, the appeals court should consider "whether the flaw in the instructions 'had substantial and injurious effect or influence in determining the jury's verdict.'"

On used books

Not too long ago, I finally went to Mr. K's used books in Johnson City - an amazing place, until you consider, for example, all the bookshops in Charlottesville.

We love free stuff

Years ago, I bought a copy of the Manual on Complex Litigation, because it was referenced in some order I had in case that was transferred as part of multi-district litigation.

More recently, I discovered that the later edition is downloadable for free from the Federal Judicial Center website.

There's a lot of forms and other good stuff in there, worth consulting even when you aren't in a case that is totally too big and complex.

Surviving the plunging numbers

The stock market? No, the .500 or less records at Michigan, Tennessee, Notre Dame, Arkansas, Auburn, UCLA, and Texas A & M, with LSU, Clemson, and West Virginia not much better - doesn't that sound like a list of the usual suspects from about 1950 to 2000? Has there been a "realignment" in college football, in the language of political theorists?

On being a criminal defense lawyer at age 88

The Atlanta paper has this fun article on an experienced lawyer in Georgia.

Should the Bar disciplinary hearing docket be online?

This article in the Daily Press says that Bar counsel want a reversal of the Supreme Court's decision that the docket of upcoming hearings on disciplinary charges against Virginia lawyers should be accessible online to the public.

Funky Boucher-Wampler campaign of 1982 video clip

You can see Congressman Boucher, ex-Congressman Wampler, and some famous lawyers back when their hair was much different in the video clips that can be found on this page, with a report on the recount from the 1982 Ninth District Congressional campaign.

So not worth it

It says here, I think, that a judge lost his position (and his silk) because it was discovered that he lied about a traffic infraction, claiming that someone else was driving, only it turned out the someone else had died before the incident.

Paige v. Fishwick

Here, Vivian Paige answers the question, who is John Fishwick?

Worst idea for a movie ever

Last night, I went home and there was an old yellow Labrador who came out to see me and wanted in the car. The kid next door told me the dog's name is Gus and pointed out the house where Gus lives. When I saw him again later, I grabbed the line he was trailing and coaxed him back up the street. To me, he seemed kind of old and underweight and confused - but still wanting to chase those cats.

I own the book Marley and Me, but I wouldn't take money to go see the movie.

On Ms. Epps

I read the obituaries (here and here) and then some of the online words of Rozanne Epps.

I liked this quote - "She considered commas an inscrutable art form."
and especially liked this photograph.

There are a lot of people out there who were affected by Ms. Epps - even those who never heard of her before this week.

Golf rules

Check out this story about how J.P. Hayes is as honest as we like to think we are. It says he turned himself in for actually using an unapproved ball, which knocked him out of Q School, which is sort of like turning yourself into the bar examiners upon discoverying after the fact that you were not using a No. 2 pencil on the multi-state.

Every one of the regular readers should read this book

I just finished The Wettest County in the World, by Matt Bondurant. It is an excellent book, sort of historical semi-fiction, mostly about the Bondurant family who figured in the 50-day moonshine trial in the Western District of Virginia against Franklin County officials including the sheriff and the Commoonwealth's Attorney.

You have to play to win

This report on the lawsuit against the Virginia Lottery suggests that the plaintiff if he is totally successful might get a few dollars.

On musical chairs

The Williamsburg paper has this account of the upcoming judgeship maneuverings in that area. It is a shame that our old teacher Judge Zepkin was never made a circuit judge there, he should have been, and almost was.

The best and the worst

Jon Copper, profiled here, was Virginia's best man on defense these past three years - an undersized overachieving and devout family man who earned his scholarship the hard way and led the team in tackles ever since.

Without disrespecting him, you'd hope that there would be more of the same character among the players who are actually recruited to play for the Cavaliers.

Did we ever make one of these before?

On Tuesday we tried a case to the Court in the W.D. Va.

And, per usual, I did some prep on the Rule 50 motion, only come to find out, Rule 50 does not apply to bench trials.

So, I made a motion for judgment on partial findings, under Rule 52(c). I've had a few evidentiary hearings in federal court on preliminary injunctions and such, but don't remember making a motion under Rule 52(c) before - perhaps I should have done.

No - thank you

In response to this post, I received this:

"Steve - I was checking something on Google tonight and saw your post. It sure meant a lot to me. The race on saturday was my third marathon but my first in 10 years. It was very hot (77 deg) and humid - and I found myself badly dehydrated by mile 20. At mile 22 it was so bad I was unable to continue running and had to walk for a bit - but it wasn't long before another played the role of inspirer and got me going again. I got 8 cups of water down at the next stop and came back to life (a bit) and made the last three miles. The last few hundred yards were as emotional of an experience as I've had.

So it was my slowest marathon of the three, but easily the most rewarding.

I thought you might like to see the newspaper story that ran about my dad when he died, by the way. http://www.stpaulsnn.org/new_minister.php

All the best to you, and bless you for your note.

Matthew"

On what the McAuliffe campaign will be selling, and to whom?

"Terry could sell shit to the zoo."

Paul Begala, quoted here on Politico.com.

Boucher hosed because of long-held IP positions?

This piece says that rather than give Congressman Boucher the chairmanship of a sub-committee with control of intellectual property issues, on which he has taken a pro-consumer, anti-industry stance over the years, instead House leaders have dissolved the sub-committee.

The red and the blue

This article in The Nation is set against Barack Obama's June visit to Bristol, as evidence of "A New, Blue Dixie."

This article by Daniel Gilbert from today's Bristol paper points out that Bristol and the rest of Southwest Virginia mostly voted against Obama.

On growing up Beamer

"He knew everybody in the hospital and what was wrong with them."

- Barnett Beamer, talking about his brother Frank's hospitalization as a boy recovering from being burned, quoted in this article about the siblings of the football coach.

Best of the day

I've read two newspapers at the house and a few online, but this is the best item I've seen today, titled Why I will run the marathon Saturday, a son writing about his father, and it begins:

"This Saturday I will run to honor those who help another get to the finish line, whatever that finish line may be. My father, the Reverend Robert H. Steilberg, did this with his life – as the founder of a high school, a faithful comforter and provider to the homeless of Richmond, and a generous minister to any in trouble, sorrow, need, or any other adversity."

The website says that Matthew Steilberg finished on Saturday in 4:09:42.

Sounds like it would be good on salad

This BLT post describes the appearance of the word, "romanette," in oral argument before the U.S. Supreme Court.

My friend Yvonne Griffin from Charlottesville posted it on the VTLA list serv, and much comment of various kinds ensued.

Less spam, really?

Reports like this one and this one suggest that worldwide spam has been reduced when a couple of ISPs shut down their links to an outlaw hosting service.

New York paper reporting on Melungeons in November 1894?

The Melungeon Historical Society Blog has this post, with an article on a mysterious race of citizens in North Carolina, from the New York Sun, dated November 15, 1894.

Fourth Circuit news

In this post, the Fourth Circuit's opinion in Sierra Club v. Simkins Indus., Inc., 847 F.2d 1109 (4th Cir. 1988) is debated, in relation to a motion to recuse Judge Chambers from the mountaintop mining litigation, because of his past affiliation with West Virginia Highlands Conservancy.

In this article, one of many speculating about the Fourth Circuit, the ubiquitous professor from Richmond suggests that perhaps Barack Obama will nominate U.S. District Court Judge Andre Davis from Maryland to fill one of the vacancies.

Why not allow hydroelectric dams as well?

This article says that wind power has been legalized in Suffolk, where there is no wind:

"Federal government estimates of Suffolk’s potential to use wind as an energy resource are not kind to the idea. The U.S. Department of Energy rates the city as a 1 on a scale of 7 for its resource potential. In fact, most of Virginia receives the same 'poor' ranking, as wind power and speed are relatively low in all portions of the state except for the Chesapeake Bay and coastal areas."

Worth reading, from soup to nuts

This month's VBA News Journal features very useful litigation articles, such as:

Civil Conspiracy: An Analysis of Common Law and Statutory Business Conspiracy Claims Under Virginia Law, by David N. Anthony & Megan C. Rahman

Exclusionary Motions Require Exercise of Discretion: Has John Crane Run Astray? by Roger T. Creager

Federal Rule of Evidence 502: New Safeguards and New Questions Concerning Waiver of Attorney-Client Privilege and Work-Product Protection, by Jon M. Talotta

On living in Appalachia

From the Richmond paper, Frank Kilgore explains Why Living In Appalachia Beats Just About Anywhere Else.

And, Frank would have you read this piece, which begins: "Virginia has established itself as a leader in land conservation by being one of only two states nationwide that has transferable state income tax credits as incentives for landowners who are interested in protecting their land from development."

Notable opinion in detainee death case

Notwithstanding the tragic facts, Judge Conrad's opinion in Harvey v. Roanoke Sheriff's Office is worth reading, for the wide range of issues addressed.

I wondered about a few that were not addressed, like the Eleventh Amendment, and how it is that the "sheriff's office" is an entity that can be sued - perhaps those were taken up in the earlier opinions.

On raising more than the one eyebrow

There are few editorials like here and here nailing Governor Kaine's funky remark about the demise in 2008 of "Ol' Virginny."

So, Ol' Virginny elected him? Or was it done gone before then?

The intramural season begins

There are few articles out there about Democrat vs. Democrat, and conservative vs. conservative, in the struggle to define who has the power and who gets the blame.

On Al Gore and civil disobedience in Wise County

According to this propaganda from Time magazine, Al Gore has been telling people to commit criminal acts like the ones for which people arrested lately at the Virginia City plant site in Wise County.

Truth is stranger than fiction

While the outcome is still being written in the Fifth District, speaking of fiction and that part of the Commonwealth, the New Times has a review here of The Wettest County in the World, a new novel by a fellow named Bondurant, about moonshiners in Franklin County.

Who will win Virginia? How will the vote go in the Southwest Virginia counties?

I'll be chatting up some people during the day.

I remember hearing the exit polls during the afternoon, four years ago, and it was all Kerry.

Rare day

The best two stories in today's Bristol paper are this one about roller derby in Johnson City and this one about Billy Wagner.

All stories about roller derby or Billy Wagner are good, but I also like the report on the Haysi game and the Wasps' game. I must be going soft in my old age, when the sports section of the Bristol paper starts looking good.

On registering the poor to vote in Virginia

This report describes efforts to get the government of the Commonwealth to get more poor people registered in compliance with the National Voter Registration Act.

Another provocative Daniel Gilbert story

This story in the Bristol paper lets the reader decide whether the son of a circuit court judge got some kind of preferential treatment in the handling of his DUI case. The odd part seems to be not the outcome - which is credibly explained by the prosecutor - but rather the conduct of the hearing in a different room away from the usual assembly of the huddled masses in district court - that's evidently what caused some editor to put this story on the front page, a decision which in itself is interesting and questionable.

If you write a lot of briefs and use Westlaw and Firefox like I do

You ought to try CiteGenie - it does what it claims to do.

The partial birth abortion case

Here is a Findlaw article on the rehearing in the case over the Virginia partial birth abortion statute, which was also described here in the Richmond paper.

And, I'm guessing the Fourth Circuit will go along with the district court and the panel decision.

When you must plead who

In U.S. ex rel. Radcliffe v. Purdue, Chief Judge Jones made a number of interesting rulings, including the issue of pleading fraud under Rule 9(b).

Should teachers be allowed to wear their Obama pins at school?

Julie Hilden opines here that they should.

She writes:

"Rather than pretending to a false neutrality, teachers should put their views on the table and let students challenge them. Otherwise, we'll be in the anomalous position of having English and History teachers instruct students about how writers and speakers convey their political views, explicitly and implicitly -- while at the same time forcing the teachers to falsely deny that they themselves ever hold or convey such views."

That would be fine, except that the teachers always get the last word - grades, the starting lineup on the ballfield, etc.

Oates, J.

They got John Oates as a last minute substitute for tonight's World Series game.

I wish that Johnny Oates had been there instead.

Wow

Thanks, Paul and Peter and Sherma and Deborah and Alan and the rest at VLW, for a great event.

To the rest of the Virginia blogosphere, especially my friends from the meetings way back when in Charlottesville and Martinsville, I say hey, look, a trophy for blogging!

Going to see some people

Here (again) is the list of people I might see this evening in Richmond - an impressive group:

• David Baugh. Took job as capital defender for Central Virginia.

• Mark D. Braley, Legal Services Corporation of Virginia. Sought filing fees statute to produce money for legal aid.

• Frank O. Brown Jr. Provided advice, delivered lectures on closing a practice.

• Jane Chittom, Appellate Defender. Successful efforts before Supreme Court of Virginia.

• Julie M. Cillo, Hall & Hall PLC. Work in collaborative law, bar activities including presidency of Metro Richmond Family Law Bar.

• Terrence L. Graves, Sands Anderson Marks & Miller. First African-American president of the Virginia Association of Defense Attorneys.

• Frank Kilgore. Community activism and environmental work.

• Gary D. LeClair, LeClairRyan. Firm growth within the past year.

• John E. Lichtenstein, Lichtenstein, Fishwick & Johnson PLC. Work with criminal bar groups, handling of high profile cases.

• Darrell Tillar Mason. Chaired Virginia State Bar mandatory insurance study committee.

• Jennifer McClellan, Verizon Corporation. Work as a member of the House of Delegates and as chair of the VSB Young Lawyers Conference.

• Wiley F. Mitchell Jr., Willcox & Savage. Pro bono work on behalf of a client in the wind farm case before the State Corporation Commission.

• David A. Oblon, Albo & Oblon. Community activities and firm development.

• W. Taylor Reveley III, College of William & Mary. Selection as the new W&M president, work on War Powers Commission.

• Carol Schrier-Polak, Bean, Kinney & Korman. Led effort to change therapist testimony statute.

• Mark E. Slaughter, Troutman Sanders LLP. Work on behalf of the Virginia Beach Bar Foundation, including organization of Law Day gala.

• Stephen E. Smith, Brain Injury Law Center. Leadership in field and work on behalf of brain injury clients.

• Rodney A. Smolla, Washington & Lee law school. Developed innovative third-year program at W&L.

• Thomas E. Spahn, McGuireWoods LLP. Chaired Virginia Bar Association Commission on Professionalism.

• Jacob P. Stroman IV, Spotsylvania County Attorney. Chaired committee that published pro bono manual for Local Government Attorneys.

• John L. Walker III, Williams Mullen. Work to establish Nuremberg courtroom at the Virginia Holocaust Museum.

• Jay M. Weinberg, Hirschler Fleischer. Work to establish Nuremberg courtroom at the Virginia Holocaust Museum.

On the case in the Sixth Circuit

In the case I argued for a Title VII plaintiff last month in Cincinnati, the Sixth Circuit has now issued its decision, reversing the District Court and sending the case back for trial.

The opinion by Judge Clay is here.

Someone asked me which did I prefer, the Sixth Circuit or the Fourth Circuit. And, the answer at least for this week is the Sixth Circuit, but that will wear off.

On representing plaintiffs

Here's an opinion by Judge Turk in a Title VII case denying in part the defendants' summary judgment motion, where we represent a fellow from Pulaski who has become a good friend of mine.

Oh, well

I talked to my mom this morning and she said they were going to what I understood her to say was an "Artesian center" wherever it is they are this week, but she seemed pretty cheerful about it.

I thought, hmm, maybe Dad is carrying his long-time hobby of getting water to the farm at Jonesville a bit too far, if he has found some kind of hydrology museum.

Mom went on to say, however, it's a crafts place, like Tamarack in West Virginia. Ah, that kind of artesian.

Fun items

Liberty's law school is bragging on its 90+% bar passage rate from this summer, as shown here.

The Episcopal Church vows here to endeavor to persevere, meaning more church law for the rest of us.

This post describes an ERISA case that went to the Fourth Circuit over a $40 dispute.

This post says John Fishwick is talking up a run for Attorney General; imagine a race between Fishwick and Brownlee, Roanoke v. Roanoke. I met John Fishwick just the other day in Charlottesville.

This article on Jim Gilmore says that when he was in high school, all he cared about was music. It is well-known that band geeks make better Senators.

On biking in the Shenandoah National Park

This piece says - don't ride two abreast in the Park.

No problem, I'm sure there's no one I could keep up with anyway.

On the J. Dickson Phillips Distinguished Professor of Law

Here the UNC Law School makes an announcement of the new J. Dickson Phillips Distinguished Professor of Law. Judge Phillips chaired the panel in my first federal appeal, fifteen years ago or more, and made me a fan.

More on the timber case

Here is the Bristol paper's report on the opinion from Magistrate Judge Sargent in our Wise County timber harvest case, including what strikes me as absurd statements from a Sierra Club lawyer.

In this case, the state agency was bypassed, and suit was filed to get the federal court to second-guess the federal agency's determination, and then plaintiffs' counsel accuses the defendants of taking advantage of a loophole in the law? I mean, really.

The Sierra Club case

Here is the latest recommendation and report from Magistrate Judge Sargent, in our timber-cutting case out of Wise County.

It begins dramatically:

"To a child of Appalachia, to see the mountains laid waste, whether by clear–cutting or strip mining, is to witness a dagger plunged into the very bosom from which you sprang and which has sustained you. Nonetheless, this court’s role in this case is not to pass judgment upon the policy decisions which allow such activities. Instead, its role is to decide the issue presented in this case – whether the court should issue a permanent injunction preventing continued logging activities on this property without a valid surface mining permit. For the reasons outlined below, I find that it should not, and I further recommend that the court vacate the preliminary injunction entered on August 4, 2008."

On being a "Leader in the Law"

Here the announcement was made that Virginia Lawyers Weekly has included me on a list of Leaders in the Law, with many distinguished people - because of this blog.

This kind of makes me wish I'd written something more interesting lately.

I thank the readers, old and new, including those at VLW.

That LA Times article on Obama and race in Southwest Virginia

I forgot to post here this LA Times story from October 5, titled "Frank talk of Obama and race in Virginia." The dateline is Whitewood, in Buchanan County, and the story begins:

"The isolated towns of Virginia's Appalachian coal region are home to strong labor unions and Democratic political machines that date back generations. Yet voters here who eagerly pushed Democrats into the Senate and the governor's office are resisting Barack Obama."

Back in May, Obama got less than 10% of the primary vote in Buchanan County.

On that cheesy guy from the Times winning the Nobel Prize

Here is Luskin's post on the announcement that Paul Krugman will get the prize.

That seems so wrong, to give a distinguished prize to a political shill, who looks so horrible on television.

On setting books free

According to this press release, an author from Bristol has a new book, called Murder Takes The Cake, and has set free one volume of it at the Bristol Starbucks, in the manner of BookCrossing.com.

On the late Judge Matney

Via Nancy and VLW, I saw this article in the Bluefield paper on the memorial for Greg Matney, a district court judge. I never knew him except as a voice on the telephone in a couple of cases.

If you wanted to be a judge and only got to be one for a short time, would that be better than not at all? I think so. I have reached similar conclusions about other life goals - even a little of the real whatever is better than none.

On having another birthday

It means that from yesterday until next February, I have the same years as Sarah Palin.

UPDATE: And, just as my birthday was October 6, the next day was the birthday of NOLA's own Ray Ward, of Minor Wisdom and the (new) legal writer.

"It's . . the bar exam!"

Here is the LA Times article on the passing of law professor and bar review lecturer extraordinaire, Charles Whitehead.

The article says in part:

"Evidence of the professor's popularity can be found in a Facebook group called 'Charlie Whitebread Rocks My World.' It has more than 1,600 members, some of whom discovered him through lectures he often gave for a popular bar-exam preparation course."

Another voice heard from

"The Virginia Supreme Court’s recent declaration that the state's anti-spam law is unconstitutional was flat-out wrong."

Ken Magill, in this commentary - which is somewhat at odds with the net neutrality principles usually espoused here.

Two more mostly negative takes on the opinion in the spam case can be found here and here.

Judge Goodwin denies class certification in DuPont case

Yesterday, in Rhodes v. DuPont, Judge Goodwin of the S.D.W.Va. denied class certification to a claim about an alleged contamination of the public water supply.

The Court observed: "The fact that a public health risk may exist is more than enough to raise concern in the community and call government agencies to action, but it does not show the common individual injuries needed to certify a class action."

Another W.D. Va. opinion on causation

In Boysaw v. Purdue Pharma, Chief Judge Jones granted summary judgment on claim against the manufacturer of OxyContin, because the plaintiff could not prove causation. The opinion cites the earlier ruling in McCauley v. Purdue Pharma L.P., 331 F. Supp. 2d 449 (W.D. Va. 2004).

They said it

"To do a decent job, the president of the United States needs to be vastly more educated and knowledgeable than the average American."

Paul Campos, here in the Rocky Mountain News.

"Our leaders are making up their responses from day to day because old ideas of how the economy works have failed them."

Robert Samuelson, on Real Clear Markets.

So, perhaps being "vastly more educated and knowledgeable" - isn't everything?

Ouch

The Bristol paper has this account of the post-trial rulings taking away the verdict in favor of Buchanan County in the Big Coon Dog case, with various philosophical quotes from me.

Not too long ago, Chief Judge Jones took away a verdict on my motion, in another case. Such is the ebb and flow of this profession.

Why Montgomery County is suing over the proposed intermodal facility at Elliston

This press release states the County's position.

The constitutional provision at issue, Art. X, section 10, provides:

"Neither the credit of the Commonwealth nor of any county, city, town, or regional government shall be directly or indirectly, under any device or pretense whatsoever, granted to or in aid of any person, association, or corporation; nor shall the Commonwealth or any such unit of government subscribe to or become interested in the stock or obligations of any company, association, or corporation for the purpose of aiding in the construction or maintenance of its work; nor shall the Commonwealth become a party to or become interested in any work of internal improvement, except public roads and public parks, or engage in carrying on any such work; nor shall the Commonwealth assume any indebtedness of any county, city, town, or regional government, nor lend its credit to the same. This section shall not be construed to prohibit the General Assembly from establishing an authority with power to insure and guarantee loans to finance industrial development and industrial expansion and from making appropriations to such authority."

They'd better watch what they ask for, as some people think that this part of the Constitution is most commonly violated by . . . cities, towns, and counties, doing economic development deals.

On that Kansas City firm

This article on the Shook Hardy firm explains the firm's origins:

"The firm traces its roots back to 1889, when Frank Payne Sebree, a Marshall, Mo., lawyer looking to build his practice in a bigger city, moved to Kansas City and set up shop in a third-floor walkup with another solo practitioner. Over the years, the firm attracted a small stable of lawyers, including name partner Edgar Shook, who joined in 1934, and name partner Charles L. Bacon, who came on board in the mid-1950s.

However, it was David R. Hardy, a skilled trial lawyer with a larger-than-life personality, who did more to change the firm’s fortunes than anyone.

Hardy made a name for himself in the late 1950s by winning a $200,000 verdict—then a state record—on behalf of a motorcycle cop who had been badly injured in a collision with a cement truck. And when the first anti-smoking suit against a tobacco company in Mis­souri went to trial in 1962, Hardy was asked by Philip Morris to lead the defense."

My good friend and college roommate Sam Sebree, and his dad and brother - two more Frank Sebrees, have worked for this firm, and so I root for it and for them.