Friday, August 03, 2007

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."

Thursday, August 02, 2007

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."

Wednesday, August 01, 2007

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.

Tuesday, July 31, 2007

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.

Monday, July 30, 2007

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.