Friday, October 24, 2003

The state of affirmative action at U.Va. law school

The Washington Post published this letter to the editor, from a third-year law student, about the state of affirmative action at the law school of the University of Virginia.

Another Democratic candidate for Attorney General?

Via Lawyers Weekly, this story in the Washington Post says that Del. Brian Moran from Alexandria has a hankering to run for Attorney General. According to Martindale, Brian Moran is with a two-man firm in Alexandria, and graduated in 1988 from the law school at Catholic University in D.C.

Briefs online in the Missouri municipal telecom case

At this site can be found the briefs for the Missouri municipal telecom case, including three - this one, this one, and this one - that I wrote.

How Muhammad screwed up his case in two days without a lawyer

This article from the Scripps Howard service points out how John Muhammad has probably botched his own case by acting as his own lawyer for a couple of days while the Commonwealth was putting on its evidence - mostly in that he was unable to make an effective cross-examination of the many witnesses the Commonwealth presented during that time.

Mild repercussions from Hokie loss in Morgantown

Two articles from the Kingsport paper (registration required):

1. it says here that Tech won't discipline Coach Beamer for swatting Ernest Wilford on the helmet

2. Senator George Allen now owes a West Virginia congresswoman a bag of peanuts for losing their wager on the game, as reported here.

More on the Motorola case

This article and this article have more news and reactions about the Fourth Circuit's ruling in the Newman v. Motorola case, where the plaintiff claimed he got cancer from using his cellphone.

Three stories on the wild, wild, world of telecommunications

From one day's Washington Post:

(1) this article about cable companies providing telephone service over the Internet, which asks: "So is an Internet phone the same as a phone? That's what regulators across the country are bickering over as they struggle to figure out what the emerging technology known as voice over Internet protocol (VoIP) might mean for consumers and the heavily regulated phone industry. Though Internet and traditional phones serve similar purposes, current regulations treat them differently."

(2) this article about rising cable subscriber rates, and how ESPN is fighting back against the accusations that it is responsible

(3) this article which says that Senator Lamar Alexander, of all people, favors an end to the ban on allowing states to tax access to the Internet. Bill Hobbs wants Tennesseans to tell the Senator this is nonsense.

No money for new judgeships?

This article about the recommendation of a new judgeship for Chesapeake by the State Judicial Council includes reference to a statement by Senator Stolle that there will probably be no money for new judgeships again this year.

Settlement in Wallens Ridge prisoner death case

The Roanoke paper reports here on the settlement of the wrongful death case brought by the estate of a Wallens Ridge inmate who allegedly died of injuries he incurred from the guards' use of a stun gun, after which he was allegedly denied timely medical care.

Personal data on the Internet from public sites in Virginia

The discussions of a legislative committee about public access to private information, mainly land records, is described in this article from the Richmond newspaper.

Thursday, October 23, 2003

On the AG's pledge not to discriminate against gays

This editorial in the Virginian-Pilot has it exactly right when it says that Attorney General Kilgore should not be criticized for his willingness to declare that he would hire none but the best to work in his office, even if that means a homosexual sneaks onto the government payroll.

The staunchest Democrat I know from over in Lee County sent me this story or something like it, for reasons I have yet to fathom - I'm guessing it is to lampoon what he sees as the nuttiness of "social conservatives."

Fentanyl patches the new drug being abused in Southwest Virginia

As reported here in the Coalfield Progress, the new thing that law enforcement officials in Southwest Virginia are finding is the abuse of pain patches.

Fourth Circuit to decide case about prayer at town council meetings

This article describes a case out of South Carolina now on appeal to the Fourth Circuit, where the issue is the use of references to "God" in the invocation at town council meetings. The article explains that "[p]rayer at public meetings cannot include words that endorse a specific religion, such as 'Christ' or 'Jesus,' a federal judge has told a South Carolina town council."

I went to Clemson, South Carolina, for the U.Va. football game a couple of weeks ago, never having been down there before, and everything about it (other than the final score) was delightful, including the prayer before the game, which among other things invoked God's blessing on "those who play, those who watch, and those who do push-ups in the end zone."

Profile of Judge Glen Conrad, newest judge in W.D. Va.

On Monday, the Roanoke Times published this article on Judge Glen Conrad, who was appointed by President Bush to succeed Judge Turk.

Among other things, the article notes that Judge Turk wanted Judge Conrad to have his seat on the bench, and describes the ties between the two and the late Judge Dalton, all from Radford:

"The ties between Conrad and Turk go back to Radford, where Conrad's mother, Selma Conrad, taught elementary school for decades. She taught several of Turk's children, Turk said. Conrad's father, James Conrad, worked at the post office in Radford. Both have since died.

Conrad first spoke at length with Turk while writing his senior thesis on the Republican Party in Virginia while attending the College of William and Mary. During his time at the university, Conrad also donned a costume to work at Colonial Williamsburg.

After Conrad graduated from law school, Dalton and Turk hired him as a federal probation officer and law clerk.

Soon after, Conrad was named U.S. magistrate in Abingdon. He worked with Allen and Cynthia Kinser, now a Virginia Supreme Court judge. He then moved to Charlottesville, where he met his future wife, Mary Ann. She is prominent in the Republican Party, Turk said."

Funding for Blue Ridge Parkway covers only 60% of costs

This AP article describes the funding shortfalls for the Blue Ridge Parkway, which runs from through Southwest Virginia into North Carolina.

Virginia apartment dwellers banned from grilling on wooden decks and balconies

My wife read this AP story about a new Virginia law banning grilling on wooden decks and balconies, and said she missed the part about the exemption for single and dual family dwellings.

On cameras in the courtroom

This commentary in the Washington Times notes that "[t]he trial of sniper suspect John Allen Muhammad has reignited the debate in Virginia courts over whether cameras in courtrooms inform the public or distract from the business of administering justice."

Loosening the AG's ruling on what are lawful political activities of electoral board members

As reported here in the Richmond paper and here in the Roanoke paper, Attorney General Kilgore has clarified his opinion to make clear that electoral board members are allowed to engage in some limited political activities, concluding that "Virginia law prohibits members from serving as paid campaign workers, but not as volunteers."

Recording the sale of flood-damaged cars

According to this AP report, "Virginia law requires the DMV to be notified before selling cars with more than $1,000 in water damage."

What is sufficient disability to toll the statute of limitations?

In Varney v. CONSOL, Inc., Judge Jones of the W.D. Va. noted that plaintiff's claim for benefits under ERISA was subject to the five-year Virginia statute of limitations for written contract claims that is "borrowed" under ERISA, declined to rule on the very interesting question raised by the plaintiff's claim that the limitations period was tolled on account of his physical impairments, upheld the plan's initial decision that plaintiff was limited to 24 months of benefits for depression under the terms of the plan, and rejected the plaintiff's new disability claims based on sleep apnea.

On the suit between Client-Centered Legal Services and LSC

In Legal Service Corp. v. Client-Centered Legal Services, the Fourth Circuit in a per curiam opinion for the panel of Judges Luttig, Michael, and Gregory upheld this decision by Judge Jones of the W.D. Va. to grant summary judgment on the LSC's claims to the building formerly used by Client-Centered Legal Services in Castlewood.

The sushi memo and local counsel

We had some fun in this office reflecting on "the sushi memo," which Howard Bashman has discussed here and here, and which was the subject of this Oct. 22 article in the NY Times (registration required). Unlike the paralegal who reported on where to find the good sushi in Manhattan, it is sometimes the role of local counsel when we are hosting the big-city lawyers who come to Southwest Virginia to point out were the good food is, or where the strong drink may be found, or both at the same time. (Or, another time, the out-of-towners wanted directions to the Virginian, since our federal court hearing ended in time for them to make their tee time.)

Rejection of testimony linking cellphones and brain cancer affirmed

In Newman v. Motorola, Inc., the Fourth Circuit in a per curiam opinion for the panel of Judges Widener, Michael, and Shedd affirmed the dismissal of the plaintiff's claim that he got brain cancer from using his cell phone, where the district court had excluded the testimony of plaintiff's experts applying the standard of Daubert and Rule 702 of the Federal Rules of Evidence.

The AP had this article on the case.

One thing that is interesting to me about the case is that the opinion came out so soon, the case was argued on September 26 and decided October 22. The original argument date was postponed because of Hurricane Isabel.

$200,000 verdict upheld where old employer faxed bogus non-compete that caused job loss

In Greenlee v. Godlan, Inc., the Fourth Circuit in a per curiam opinion for the panel of Judges Niemeyer, Williams, and Shedd upheld the $200,000 verdict against the plaintiff's former employer for tortious interference with contract under South Carolina law, where the old employer faxed a copy of an invalid non-compete clause to her new employer, which caused the new employer to fire her.

Summary judgment on discrimination claims of Roanoke police officers affirmed

In Altizer v. City of Roanoke, the Fourth Circuit in a per curiam opinion for the panel of Judges Widener, Shedd, and Duncan summarily affirmed without oral argument this decision by Judge Wilson of the W.D. Va. to grant summary judgment on the employment discrimination claims of the plaintiffs, Roanoke police officers who claimed that they were victims of reverse discrimination based on their race.

$300 personal injury verdict against Wal-Mart in W.D. Va. affirmed

In Hall v. Wal-Mart Properties, Inc., the Fourth Circuit in a per curiam opinion for the panel of Judges Wilkinson, Michael, and Shedd affirmed a $300 verdict over the plaintiff's challenges to the outcome and the conduct of his trial, which was conducted by Senior District Judge James C. Turk of the W.D. Va. in Roanoke. Appeals specialist Monica Taylor Monday argued the case before the Fourth Circuit for Wal-Mart.

Constitutional challenge to Va. statutory limit on tow charges dismissed under 11th Amendment

In Va. Ass'n of Towing and Recovery Operators, Inc. v. Commonwealth of Virginia, the Fourth Circuit in a per curiam opinion for the panel of Judges Motz, Gregory, and Shedd affirmed the dismissal of the towing association's constitutional challenge to the statutory limit on nonconsensual towing charges under Va. Code § 46.2-1233.1, where Judge Hilton of the E.D. Va. had concluded that the relief sought against the Commonwealth was barred by the Eleventh Amendment.

Student loan discharge reversed

In U.S. Department of Health & Human Services v. Great Lakes Higher Education Servicing Corp., the Fourth Circuit in an opinion by Judge Motz, joined by Judge King, with Judge Michael dissenting, reversed the district court's decision that student loan debt could be discharged based on unconscionability. The majority held that the district court applied an improper, too lenient standard in determining what was "unconscionable." Judge Michael concluded that even under the correct standard, the debtors should have been let off the hook.

On mandatory minimum sentences

In U.S. v. Rice, the Fourth Circuit in a per curiam opinion for the panel of Chief Judge Wilkins, Judge Traxler, and Senior Judge Hamilton explained:

"We understand what the district court was trying to accomplish here. Rice was a relatively minor participant in the August 14, 2001 drug transaction and participated in this transaction not to make money but rather only to obtain some crack to fuel his unfortunate addiction to the drug. The district court understandably was compassionate, trying to give a break to an individual whom it deemed unworthy of a mandatory life sentence. The mandatory life sentence in this case may well reflect some of the inequities involved in the imposition of mandatory minimum sentences and any argument here is with the mandatory life sentence mandated and not with the compassionate rationale of the district judge. Indeed, mandatory minimum
sentences are designed to ensnarl the most culpable, but all too often they capture many who are considerably less culpable. Moreover, mandatory minimums often do not take into account the defendant’s role in the offense, which more accurately reflects the dangerousness and the culpability of the defendant. However, even though we may feel that the district court ultimately imposed a just sentence of 293 months’ imprisonment, we are not at liberty to disturb a mandatory sentence of life imprisonment that is consistent with the Sentencing Guidelines, the will of Congress, and the proportionality principles laid down by the Supreme Court and this court."

Hey, I got my Blogger sweatshirt

Those in the know about Blogger know that they sold us something, then decided to give it away for free, and those of us who paid for it get a sweatshirt instead of a refund, or something like that. Well, I put in for the sweatshirt, and it arrived at the house today.

Now, I don't remember how much money was involved, and anyhow, where else could I get a Blogger sweatshirt for any price? It even says Google on the sleeve.

Years ago, the old law firm had a picnic, and when I arrived there, one of my bosses said to me, "Steve, only you would wear a law review t-shirt to a firm picnic." My response was: "in this group, only I would have one." Maybe I'll find an appropriate venue one of these days to have some fun wearing my new sweatshirt.

Sunday, October 19, 2003

How do Howard Bashman and Tom Goldstein do it?

I'm trying to finish three amicus briefs to be filed in the Supreme Court of the United States before Friday - and as usual it appears that the work may expand to fit the time available. So, no new blogging until the fun is over.

My two favorite lawyer jokes relate to writing on a deadline. One is about the lawyer who asks for 30 days to write a brief, and the judge asks if so much time is really required. Well, the first 27 days are that important, the lawyer answers, but those last three I can't do without.

In response to this, an Abingdon lawyer once told me of the lawyer who said to the judge, "I'm sorry, Your Honor - I didn't have time to write a shorter brief."