Friday, October 07, 2005

Monkey no. 997,043 liked this one

Here's a quote:

"We've heard that a million monkeys at a million keyboards could produce the complete works of Shakespeare; now, thanks to the Internet, we know that is not true."

Hey, I got one of these, too

Norman reacts here to an invitation to include his blog in the archives of the Library of Virginia.

I got the same invitation, thinking at first that it was spam.

So, the two things blogging has got me this week: (1) an invitation to the archives, and (2) I recognized Mark Rubin on the street in Richmond on Thursday.

No right to get footloose on town property in the Fourth Circuit

In Willis v. Town of Marshall, the Fourth Circuit in an opinion by Judge Traxler, joined by Chief Judge Wilkins, affirmed in part and vacated in part the District Court's disposition of a section 1983 brought against a North Carolina town which had barred the plaintiff from unruly dancing at concerts at the town community center. Judge Williams wrote a separate opinion concurring in part.

The District Court denied the plaintiff's motion for preliminary injunction and granted summary judgment in favor of the town, concluding that the dirty dancing was not constitutionally protected. The majority agreed with the District Court that the plaintiff's style of dancing at the community center was not protected by the First Amendment, but she might have an equal protection claim for being singled out by the Town.

Your tuition dollars at work

Here it says a gang of Virginia Tech students are trying for a good cause to make the Guinness Book of World Records for biggest pillow fight.

The latest Certworthy

Here Ray Ward has linked to the latest Certworthy, the publication of the DRI Appellate Practice session.

The shame of it all is that I argued an appeal yesterday, and although it may have gone well enough, I was thinking after reading this latest Certworthy that I wish I had read it before we wrote the briefs - I could see how to make them better. And, perhaps the argument went better, although it was not a complicated case.

Read it, write better, argue better.

One of my pet peeves in briefwriting lately has been all sentences starting with the indefinite "it", as in "It is fundamentally unfair." What's the case cite for that fundamental unfairness doctrine, anyway?

P.S. Dad, check out the bit at pp. 26-27 with my name on it, as the reporter for the Fourth Circuit.

Thursday, October 06, 2005

Did the local government really have authority for this?

Here is a picture of a monument to Judge Dillon, originator of the Dillon Rule.

The dim bulb test

Ross MacKenzie says here:

"Harriet Miers lacks the heft of many in the judicial monastery - e.g., J. Harvie Wilkinson, Karen Williams and Michael Luttig of the Virginia-based Fourth Circuit Court of Appeals, or Chief Justice Leroy Hassell of the Virginia Supreme Court."

He concludes, however:

"And if Bush is not the dim bulb those who detest him insist he is, then the rest of us might be well advised, through faith and intellect, to believe in his nominee."

Those incredibly generic Marching Cavaliers

This article says do the right thing and bring back the Pep Band.

At least, they should ban all future performances of "Jungle Boogie."

I've paid money to see marching bands, but the Marching Cavaliers can't hold my interest.

The Royal family

I read this story about Virginia Tech's WR Eddie Royal and his sister, the cadet commander at Tech, and his brother, who plays in the secondary for Marshall (Tech's upcoming football opponent) this morning and thought it was great.

(I only read USA Today, it seems, at hotels like this morning at the Omni in Richmond.)

Metadata opinion from U.S. District Court in Kansas

Here, via Steve Emmert and others, is a must-read opinion in a federal court case from Kansas, where the defendant tried to get away with scrubbing the metadata from Excel files it was ordered to produce, related to a reduction in force.

Wednesday, October 05, 2005

Sandra Day O'Connor follows Burger et al. to become Chancellor of William & Mary

The Washington Post reports here that retiring Supreme Court Justice O'Connor will become chancellor of the College of William & Mary.

A lawyer I know, who served on the board of the College, told me once that he had heard somehow or another that retired Chief Justice Warren Burger was bummed when he learned that he was term-limited out of the job of chancellor, that he had enjoyed the idea and wanted to keep the "job" longer.

Dillard on Harriet Miers

Feddie says here that Ms. Miers may have run out to buy a Con Law study aid.

Bainbridge on Harriet Miers

Professor Bainbridge says here that if President Bush is not going to come across on Supreme Court nominations, then what's the point?

Tuesday, October 04, 2005

Sixth Circuit judge throws down on the death penalty

In Moore v. Parker, Judge Martin in dissent unloaded his accumulated views against the death penalty.

More fun than the Harriet Miers nomination

I liked this image so much I stole it. Posted by Picasa

The original of this fantasy slate for 2009 with commentary can be found here.

Monday, October 03, 2005

Nobody from the Fourth Circuit gets nominated to the Supreme Court

Instead, the nomination went to a graduate of Southern Methodist University, previously known for its football players, up until the NCAA shut down the program.

My old friend Jim Green went to SMU Law. I'm sure he would view this development as further evidence of the destiny of SMU alumni to rule the world.

Sunday, October 02, 2005

Judge Luttig pulls ahead on Tradesports line

Dethroning Judge Williams from her top rank as yesterday's betting favorite, as of this hour on Sunday night, Judge Luttig of the Fourth Circuit has zoomed to the top of the Tradesports bidding at 18.7, with Judge Williams down to 10.0.

What these numbers mean I can't say for sure, as I am not planning to place any wagers.

On watching college football thirty-some years ago

Watching Saturday's Alabama win over Florida, I noticed that the home team had a running back wearing No. 10, which caused me to recollect that as a child, not knowing any better, I used to root for Bear Bryant and Alabama football - because they were on television all the time. The first bowl game I can remember was the Sugar Bowl on New Year's Eve, 1973, when they lost to Notre Dame, 24-23.

They had a good running back named Wilbur Jackson, who went on to play a few years in the NFL. In college he wore No. 80, as shown in the picture on this page, with an article in which a former assistant SID discusses the fact that in 1970 Jackson was the first black football player signed to a scholarship at Alabama.

The local team I pulled for was Virginia Tech. When I saw them play sometime around 1974 or 1975, they were running Alabama's wishbone offense with three black running backs, including Phil Rogers from Gate City and Paul Adams from Castlewood. (It says here that in the fall of 1970 a fellow from Radford named John Dobbins became the first black football player for Tech.)

In the world as I knew it in the early 1970s, I had no idea that anyone had ever objected to black men playing college football, but I knew for sure that it was weird for a running back to wear No. 80.

Details of JIRC complaint against general district court judge in the Tidewater

The Norfolk paper reports here on the Judicial Inquiry and Review Commission's complaint against General District Court Judge Archie Elliott.

On the October Sky festival

The Bluefield paper reports here on rocket boy Homer Hickam's return to Coalwood for the 7th Annual October Sky festival.

On Goose Pimple Junction

Rex Bowman writes for the Richmond paper about How Goose Pimple got its name.

Goose Pimple Junction is conveniently situated at the bend in the road between the Bristol Country Club and The Virginian.

More on Judge Karen Williams

Via How Appealing, The State in South Carolina has this article with different points of view on whether President Bush should nominate Judge Karen Williams to the U.S. Supreme Court.

On that Ninth Circuit judicial misconduct opinion

References to this opinion from the Ninth Circuit have been booted about the law blogs, most particularly because of this quote from Judge Kozinski's dissent, which will live forever: "Throughout these lengthy proceedings, the judge has offered nothing at all to justify his actions - not a case, not a statute, not a bankruptcy treatise, not a law review article, not a student note, not even a blawg." (Emphasis added.)

I never heard much about the facts, however, until I read this creepy Beldar post. Read it, for the complainant's point of view. What the district court judge did in the case doesn't make any sense.

As an aside, Beldar does jump on the bandwagon having fun with the "blawg" reference, as he says: "oh, how I aspire to someday approach the credibility, or even the popularlity, of a bankruptcy treatise!" Apropos of this topic, beSpacific links here to this Findlaw article by John Dean, of all people, on the use of blogs for legal research.

132,000 people in prison for life in the U.S.

Professor Berman links here to this NY Times article about the population of persons sentenced to life in U.S. prisons.

The article says there are 132,000 lifers in the U.S., and explains:

"But now, driven by tougher laws and political pressure on governors and parole boards, thousands of lifers are going into prisons each year, and in many states only a few are ever coming out, even in cases where judges and prosecutors did not intend to put them away forever.

Indeed, in just the last 30 years, the United States has created something never before seen in its history and unheard of around the globe: a booming population of prisoners whose only way out of prison is likely to be inside a coffin."

What can you say as a judge candidate in Kentucky

Via this Marcia Oddi post, the Louisville paper has this article on the new rule allowing free speech for candidates for judgeships in the Commonwealth of Kentucky.

The article says:

"The new rule says judicial candidates must not 'intentionally or recklessly' make a statement that could be perceived 'by a reasonable person' as committing them to rule a certain way on an issue they could hear."

The article suggests that Kentucky conservatives are seeking to challenge even this limit on judges, to make it easier for them to ferret out the liberals.

Your top 100 intellectuals

I was amused to read, via this ACS post, a list of top 100 intellectuals, of whom I could place perhaps 20.

ACS notes the controversy that so few were women were included. Others might question why so many NY Times columnists were included, particularly Krugman, of whom Gail Collins wrote in yesterday's Times:

"A classic case of correction run amok involved a column that Paul Krugman wrote on Aug. 19 about the Florida recount in 2000 in which he said that two different news media groups reviewed the ballots and found that 'a full manual recount would have given the election to Mr. Gore.' That was incorrect. Paul tried to clarify things in his next column, but the public editor, Byron Calame, objected that since nothing in the second column was labeled a correction, the original error would survive in the permanent record.

Paul published a correction in his next column. Unfortunately, the correction was based on information published in The Miami Herald that was wrong and had never been formally fixed. Paul appended another correction to the Web version of his column, but asked if he could refrain from revisiting the subject yet again in print.

I agreed, feeling we had reached the point of cruelty to readers. But I was wrong. The correction should have run in the same newspaper where the original error and all its little offspring had appeared. Here it is:


In describing the results of the ballot study by the group led by The Miami Herald in his column of Aug. 26, Paul Krugman relied on the Herald report, which listed only three hypothetical statewide recounts, two of which went to Al Gore. There was, however, a fourth recount, which would have gone to George W. Bush. In this case, the two stricter-standard recounts went to Mr. Bush. A later study, by a group that included The New York Times, used two methods to count ballots: relying on the judgment of a majority of those examining each ballot, or requiring unanimity. Mr. Gore lost one hypothetical recount on the unanimity basis."

So, your top 100 intellectuals include one fellow who can't quite come out and say that 2 + 2 = 4, or something like that.