A football case, from a few years back

Here's part of an old brief, apropos of the high school football season:

Plaintiff was in a fight on school property at the High School, where he is a student and was a member of the football team. The altercation occurred on the football practice field following football practice. Plaintiff has acknowledged that school rules prohibit such fighting. He admits his role in the fight. He does not dispute the essential details of fight that were represented by other witnesses.

Plaintiff told his side of the story to the High School principal. The principal dealt lightly in deciding that the appropriate discipline was only one day’s suspension for both students. Plaintiff appealed to the Disciplinary Committee and then to the School Board. Plaintiff presented his side of the story with the aid of counsel to the School Board. Both the Disciplinary Committee and the School Board upheld the punishment decided by the principal. After the School Board’s decision, Plaintiff sued in the Circuit Court, claiming that the one-day suspension would violate his rights under the U.S. Constitution. He obtained an ex parte temporary injunction. The defendants removed the case. (Pursuant to 28 U.S.C. § 1450, the injunction remains in effect, subject to further order of this Court.) The defendants now seek summary judgment and dissolution of the injunction.

ARGUMENT

In Goss v. Lopez, 419 U.S. 565 (1975), the Supreme Court decided what procedural protections are due under the United States Constitution in cases of student suspensions for 10 days or less. “[D]ue process requires, in connection with a suspension of 10 days or less, that the student be given oral or written notice of the charges against him, and if he denies them, an explanation of the evidence the authorities have, and an opportunity to present his side of the story.” Id. at 581. The Virginia Supreme Court applies the same standard. See Wood v. Henry County Public Schools, 255 Va. 85, 92, 495 S.E.2d 255, 259 (1998).

On the undisputed facts of this case, Plaintiff received all the process he was due under the Constitution, and more. The offense with which he was charged was clearly defined. Although Plaintiff disputes who was to blame for the fight and whether his actions were justified, he has never denied his involvement. Plaintiff had not one but three opportunities hear the charge against him and state his response, and he was represented by counsel at both the second and third stages.

The procedural due process contemplated by Goss is limited and informal, and “due process principles have never assured a successful defense.” Bystrom v. Fridley High School 686 F. Supp. 1387, 1394 (D. Minn. 1987). The Court in Goss refused to require “that hearings in connection with short suspensions must afford the student the opportunity to secure counsel, to confront and cross-examine witnesses supporting the charge, or to call his own witnesses to verify his version of the incident.” 419 U.S. at 583. Compare Bethel School District v. Fraser, 478 U.S. 675, 686 (1986) (“Two days’ suspension from school does not rise to the level of a penal sanction calling for the fully panoply of procedural due process protection applicable to a criminal prosecution.”). In essence, the student is guaranteed only the chance to alert the disciplinarian “to the existence of disputes about facts and arguments about cause and effect.” Goss, 419 U.S. at 583-84. “[T]he student will at least have the opportunity to characterize his conduct and put it in what he deems the proper context.” Id. at 584. As the Eleventh Circuit concluded, “once school administrators tell a student what they heard or saw, ask why they heard or saw it, and allow a brief response, a student has received all the process that the Fourteenth Amendment demands." C.B. v. Driscoll, 82 F.3d 383, 386 (11th Cir. 1996).

The Goss standard continues to be applied to similar cases in Virginia and throughout the country. See Martin v. Shawano-Gresham School Dist., 295 F.3d 701, 705-06 (7th Cir. 2002) (affirming summary judgment); Ratner v. Loudon County Public Schools, 16 Fed. Appx. 140, 2001 WL 855606 (4th Cir.) (unpublished) (affirming dismissal for failure to state a claim, citing Goss); West v. Derby Unified School Dist. No. 260, 206 F.3d 1358, 1364 (10th Cir. 2000) (affirming summary judgment on due process claim); Smith on Behalf of Smith v. Severn, 129 F.3d 419, 428 (7th Cir. 1997) (affirming summary judgment); Brian A. ex rel. Arthur A. v. Stroudsburg Area School Dist., 141 F. Supp.2d 502, 508 (M.D. Pa. 2001) (granting summary judgment); Long v. Board of Educ. of Jefferson County, Ky., 121 F. Supp.2d 621, 628 (W.D. Ky. 2000) (granting summary judgment); Smith ex rel. Lanham v. Greene County School Dist., 100 F. Supp.2d 1354, 1367 (M.D. Ga. 2000) (granting summary judgment); Carlino v. Gloucester City High School, 57 F. Supp.2d 1, 28 (D.N.J. 1999) (granting summary judgment on due process issue); Achman v. Chisago Lakes Independent School Dist. No. 2144, 45 F. Supp.2d 664, 671 (D. Minn. 1999) (granting summary judgment); Broussard by Lord v. School Bd. of City of Norfolk, 801 F. Supp. 1526, 1532 (E.D. Va. 1992) (granting judgment as a matter of law); Granowitz v. Redlands Unified School Dist., 105 Cal. App.4th 349, 354, 129 Cal. Rptr.2d 410, 414 (2003); Floyd v. Horry County School Dist., 351 S.C. 233, 236-37, 569 S.E.2d 343, 345 (2002); Atcitty v. Board of Educ. of San Juan County School Dist., 967 P.2d 1261, 1263 (Utah App. 1998) (“Goss remains the guiding decision in public school suspension cases of ten days or less.”); M.M. v. Chesapeake City Schools, 52 Va. Cir. 356, 2000 WL 33261105, *2 (Va. Cir. Ct. 2000).

Plaintiff cannot conjure up a procedural due process claim based on some real or imagined violation of the letter of the School Board’s written policies or the student code of conduct. “[T]he failure to conform with the procedural requirements guaranteed by state law does not by itself constitute a violation of federal due process.” Martin, 295 F.3d at 706. Even if plaintiffs can show that school policies were not followed to the letter, his constitutional claim must be measured not by the code book, but by the law of due process. “Alleged violations of due process in the deprivation of a protectable interest are to be measured against a federal standard of what process is due and that standard is not defined by state- created procedures, even when those state-created procedures exceed the amount of process otherwise guaranteed by the Constitution.” Riccio v. County of Fairfax, Va., 907 F.2d 1459, 1469 (4th Cir. 1990); compare Gray v. Laws, 51 F.3d 426, 438 (4th Cir. 1995) (“The Constitution’s due process requirements are defined by the Constitution and do not vary from state to state on the happenstance of a particular state’s procedural rules.”).

Finally, the bill of complaint suggests that the School District had no authority to discipline Plaintiff because of when, where, and how the fight occurred. This argument sounds more like a substantive due process claim. Some courts view a school suspension as an “executive decision” that does not implicate rights of substantive due process if “proper procedural protections are afforded,” since public education is not a fundamental right. See C.B. v. Driscoll, 82 F.3d at 387. Others courts have concluded that school disciplinary decisions do not violate substantive due process so long as they are rationally related to the school’s legitimate interests, or do not “shock the conscience.” See Smith ex rel. Smith v. Half Hollow Hills Cent. School Dist., 298 F.3d 168, 173 (2d Cir. 2002) (teacher slapping student for no reason does not violation substantive due process, which protects “only against egregious conduct which goes beyond merely ‘offend[ing] some fastidious squeamishness or private sentimentalism’ and can fairly be viewed as so ‘brutal’ and ‘offensive to human dignity’ as to shock the conscience.”); Harris v. Robinson, 273 F.3d 927, 930 (10th Cir. 2001) (“shock the conscience” test applies to measure substantive due process in school discipline cases); Seal v. Morgan, 229 F.3d 567, 575 (6th Cir. 2000) (“In the context of school discipline, a substantive due process claim will succeed only in the ‘rare case’ when there is ‘no rational relationship between the punishment and the offense.’”) (quoting Brewer by Dreyfus v. Austin Independent School Dist., 779 F.2d 260, 264 (5th Cir. 1985)); Dunn v. Fairfield Community High School Dist. No. 225, 158 F.3d 962, 966 (7th Cir. 1998) (no substantive due process violation where the plaintiffs “freely conceded that they had violated a school rule, that the rule was designed to preserve discipline in the classroom and to punish student insubordination, and that these were legitimate interests on the part of the school district.”). In this case, there is no constitutional basis for the claim that the school’s disciplinary authority does not extend to these after-school events which occurred on school property, related to a school activity, and involved one student injuring another.

By law, the School Board has control over school property, without limitation as to the time of day. See Va. Code §§ 22.1-79, 22.1-125; compare New Jersey v. T.L.O., 469 U.S. 325, 339 (1985) (recognizing the “substantial interest of teachers and administrators in maintaining discipline in the classroom and on school grounds”); Lovern v. Edwards, 190 F.3d 648, 655 (4th Cir. 1999) (“School officials have the authority to control students and school personnel on school property”). The School Board has an obligation to provide a safe environment for its students. See, e.g., Va. Code § 22.1-279.6 (school boards will have “policies on alcohol and drugs, vandalism, trespassing, threats, search and seizure, disciplining of students with disabilities, intentional injury of others”) (emphasis added); 8 VAC 20-131-260 (requiring schools to have procedures “for responding to violent, disruptive or illegal activities by students on school property or during a school sponsored activity” as part of their program for student safety); compare Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls, 122 S. Ct. 2559, 2565 (2002) (“the school has the obligation to protect pupils from mistreatment by other children”) (citation omitted). The School Board’s enforcement of its policy against fighting in this case “furthers the district’s legitimate interest in maintaining a safe environment and is rationally related to that interest.” Peterson v. Independent School Dist. No. 811, 999 F. Supp. 665, 673 (D. Minn. 1998). Compare Escatel ex rel. Escatel v. Atherton, 2001 WL 755280, *7 (N.D. Ill. 2001) (“Given that there is no fundamental right to an education, the defendants’ policy permitting expulsion must be sustained if it is rationally related to a legitimate state interest”); Craig v. Selma City School Bd., 801 F. Supp. 585, 595 (S.D. Ala. 1992) (upholding suspensions and expulsions of students who fought after a football game on school proper, noting that “[t]he purposes of the defendants in seeking to enforce school regulations and to protect other students as well as school property from violence are certainly legitimate”).

The District Court granted summary judgment in the case.

Don't I post this every year about now?

Here's my alltime favorite piece of writing about college football in Tennessee. Probably I posted it last year and will again next year, until the IP police tell not to do it any more:

It's Football Time in Tennessee
by Jake Vest -- Orlando Sentinel -- Jake Vest is the creator of the comic strip That's Jake.

Re-printed in Knoxville News-Sentinel January 14, 1996

I grew up just down the river from Knoxville's Neyland Stadium in the poor direction -- out toward the rock quarries, dairy farms and tobacco patches.

On a crisp mid-October Saturday you could climb a hill, and if the wind was just right, you could hear the rich people booing Bear Bryant and the Tide.

I spent a lot of time climbing those hills and listening.

Football was the second favorite sport out in the greater Forks of the River metropolitan area, right behind squirrel hunting -- which you didn't need a ticket to do.

Sometimes the squirrel hunters would carry transistor radios so they could listen in on John Ward, the Voice of the Vols, calling the shots for that other sport. If Tennessee was driving for a score, there would be a general, temporary cease-fire.

Now that is devotion. Anything that gets a Tennesseean s mind off hunting is something special.

If it was a particularly big game, even the dogs would stop barking. They knew Ward's voice, and they could tell when he was getting serious, a fact that may seem like a stretch to some but you've got to remember we had some mighty good dogs.

Out in my part of the woods, an affection for the Big Orange was something you took up early in life and held onto.

One of my first memories is of sitting on the front porch in a swing with my grandfather, that s Pappaw in East Tennessean, listening on the radio to Tennessee play Ole Miss. That was back in the days when the forward pass was considered an alternative lifestyle, something you did if you weren't man enough to play real football, and both teams rushed about 300 times for a total
of about 150 yards.

Every time Ole Miss would gain a step, Pappaw would cuss and spit tobacco juice. By halftime, the side yard looked like an oil spill.

What's most remarkable about this is that I don t think Pappaw had any notion of what a football game was. It wasn t mentioned in the Bible, so he had no reason to have ever read about it; and he sure had never attended a game. He had no idea what those Mississippians were doing. But he knew they were doing it to us. And he was against it. He never set foot in the University of Tennessee campus in his life, but he was a Vol and a mighty good one if I say so myself.

If you can understand my Pappaw, you can probably understand the relationship between Tennessee football and Tennessee football fans. If you can't, there's not much reason to try to explain it.

It's an us vs. them proposition. If you're one of us, you know how we feel; if you're not, I'm not sure you want to know.

Some people make the mistake of separating the game from all the stuff that surrounds the game and therefore can't see what's the big deal. College football in general, Southern college football in the particular and Tennessee Volunteer Go Big Orange college football, to be precise, is much much more than that.

It's crisp autumn afternoons with chicken barbecuing, bands playing and trees trying to out-pretty each other. It s riding down the river as part of the Vol Navy and singing Rocky Top 400 or 500 times in an afternoon. It s a cold beer and a turkey sandwich at Sam & Andy s down on Cumberland Avenue before the game. It s tailgating around Kent Boy Rose's orange and white motor home -- one of the hundreds of that color that line Neyland Drive on game day, right outside Neyland Stadium where General Neyland used to coach. It's memories of Tennessee Walking Horses strutting the sidelines and of cannons in the end zone. It's Old Smokey howling for a touchdown. It's John Ward hollering GIVE HIM SIX when the good guys score and hollering STOPPED BY A HOST OF VOLUNTEERS when the bad guys get stuffed. It's Bobby Denton calling the play by play and telling a fired-up crowd "It's fooootball time in TENN-E-SSEEEEE!" It's old women and little babies decked out in orange. It's African-Americans and redneck farmers high-fiving, hugging and saying "How bout them Vols?" after a touchdown.

It's touchdowns.

It's road trips to Birmingham, radio talk shows, shakers, and flags flapping in the wind. It's dancing to the Tennessee Waltz after the game and sipping illicit Tennessee whiskey during it.

It's memories: The time we beat the unbeatable Auburn and the unstoppable Bo Jackson couldn't go anywhere but backward; the undertalented Daryl Dickey shutting the overactive mouths of a Miami team in the Sugar Bowl we were supposed to lose by 22 but won by 28; holding Larry Csonka and Floyd Little out of the end zone to preserve a bowl victory over Syracuse; reminding Ken Stabler that left-handers can lose football games too; Condredge Holloway hopping out of an ambulance to return to the UCLA game and rally the troops to a tying touchdown; Jack Reynolds cutting his car in half after a loss and earning the nickname Hacksaw.

It's Doug Atkins, the Majors boys, Bob Johnson, Charlie Rosenfelder, Karl Kremser, Richmond Flowers, Herman "Thunderfoot" Weaver, Dewey "Swamp Rat" Warren, Tony Robinson, Curt Watson, Steve Kiner, Willie Gault, Carl Pickens and Reggie White and all our other heroes running through that big T while the Pride of the Southland band plays and over 100,000 of us holler and carry on like free-will Baptists having a spell. It's also memories of my daddy sitting on the front porch during the last autumn Saturdays of his life listening to the game on the radio and cussing and spitting tobacco juice every time an opponent gained a step on us. He would understand what I'm talking about.

So would Pappaw.

I could go on, but you probably get the picture. If you don't, you won't ever so there's no reason to go further.

I guess it's the kind of feeling that just runs in the family.

You can't negligently misrepresent your own intentions

I don't remember if I knew this or not, but in the case that was tried in July and continues on, one thing that I wrote about was the Virginia Supreme Court has concluded it is impossible to state a constructive fraud claim based on a misrepresentation about one's intention to do something in the future:

"Under no circumstances ... will a promise of future action support a claim of constructive fraud." Supervalu, Inc. v. Johnson, 276 Va. 356, 368, 666 S.E.2d 335, 342 (2008). Supervalu cites and is based on the Court's prior statements in Richmond Metro. Auth. v. McDevitt Street Bovis, Inc., 256 Va. 553, 560, 507 S.E.2d 344, 348 (1998); Blair Constr. v. Weatherford, 253 Va. 343, 347, 485 S.E.2d 137, 139 (1997); and Colonial Ford Truck Sales v. Schneider, 228 Va. 671, 677, 325 S.E.2d 91, 94 (1985), all of which recognize a distinction between actual and constructive fraud in connection with promises of future conduct. In a footnote, the Supervalu majority specifically overruled a statement in Eden v. Weight, 265 Va. 398, 578 S.E.2d 769 (2003), "[t]o the extent that this statement implies that an action for constructive fraud may lie if the evidence demonstrates a present intent not to fulfill a promise of future action."

The federal courts have observed this distinction in deciding like cases. See RBA Capital, LP v. Anonick 2009 WL 960090, *4 (E.D. Va.) ("Since '[u]nder no circumstances, however, will a promise of future action support a claim of constructive fraud,' and the Anonick's basis for the fraud claim involves a promise of future action, their allegations clearly will not support a claim for constructive fraud") (granting motion to dismiss, quoting Supervalu); Barrigan v. Elite Funding, 2009 WL 54514, *4 (E.D. Va.) ("an unfulfilled promise of future action . . . cannot form the basis for a successful constructive fraud claim.") (granting summary judgment, citing Supervalu, McDevitt, and Colonial Ford); White v. Potocska, 589 F. Supp.2d 631, 656 (E.D. Va. 2008) ("there is no claim of constructive fraud under the 'present intention' theory of fraud") (granting summary judgment, citing Supervalu); GIV, LLC v. International Business Machines Corp., 2007 WL 1231443, *5 (E.D. Va.) ("Such a misrepresentation, however, is not actionable as a constructive fraud," emphasis in the original) (granting motion to dismiss, citing Blair Constr.).

On Batson and earrings

The VLW Blog has a post up about non-discriminatory reasons that have passed muster under a Batson challenge to the use of peremptory strikes.

I tried a case back in January before Judge Turk, where I represented a African-American claiming racial discrimination and retaliation. The only black man in the venire was a distinguished, well-dressed gentleman of about 60, wearing a big gold earring. He was probably the most distinguished-looking, best-dressed person in the building that day. I thought that striking that guy on account of his earring was surely a pretext for race. Unfortunately, Judge Turk had already addressed the issue in the Claytor case cited by VLW, and every other case I found goes the same way - an earring-based strike does not violate Batson. In Claytor, "[t]he prosecutor explained that the earrings suggested to him that the prospective juror had made a life-style choice that was not consistent with mainstream society."

I wanted to cite to Judge Turk this Ebony article from 1998, but I don't guess it would have been relevant to what the lawyer was thinking.

Nomination of Tim Heaphy announced today

In this press release, the White House announced the nomination of Tim Heaphy as the next U.S. Attorney for the Western District of Virginia. That's all to the good, as he is a fine fellow (haven't I said that before?). He was looking forward to the nomination when I saw him and kids enjoying dinner al fresco on the downtown mall in Charlottesville, earlier this summer.

That jury trial earlier in the week

On Wednesday and Thursday, I tried a case in the W.D. Va., representing two fellows from Texas who were sued for fraud, where the amount in dispute was fixed at $2.3 million, and we got a defense verdict. The jurors deliberated for over three hours, counting the time they were eating pizza for dinner. My opposing counsel were Hunter Sims and Johan Conrod from Norfolk.

I had not met Mr. Sims before the end of the case. We had a laugh about his being the No. 2 Virginia SuperLawyer. I don't know if there are any "super" lawyers, but I am impressed that the best Virginia lawyers I've ever met, like Mr. Sims and maybe fifty others I could name off the top of my head, are all gentlemen (and gentle ladies) to the core. And, I expect that whenever I see Mr. Conrod from now on we will enjoy retelling our adventures from this case, of which there were a few.

Fourth Circuit en banc upholds Virginia's partial-birth abortion statute by 6-5 vote

Today in Richmond Medical Center v. Herring, the Fourth Circuit en banc upheld the Virginia law on partial-birth "infanticide," with the six including Niemeyer, Chief Judge Williams, Wilkinson, Shedd, Duncan, Agee, and the five including Motz, Michael, Gregory, King, and Traxler. The opinion writers were Niemeyer and Michael. Earlier, the District Court and the panel of the Court had ruled that the statute was unconstitutional.

The case was argued back in October, 2008. And, if the case was argued in October 2009, with one or more of the Obama administration's nominees to the Fourth Circuit on the court, the opposite result would have been most likely.

Speaking of the Fourth Circuit, I might yet roll up to the Greenbriar for part of the Judicial Conference, which is this week, at least for Saturday morning's remarks by the Chief Justice.

Why I'm voting for Brownlee

Why I'm going to Richmond this weekend to vote at the Republican convention for John Brownlee:

1. He was the U.S. Attorney for the W.D. Va., the head lawyer for the United States of America in (the better) half of Virginia. That's more like being Attorney General than about any other law job there is. If you look'em up on Westlaw, Mr. Brownlee's name is on Westlaw hundreds of times, just like the Attorney General's name is on every case the Commonwealth appeals or defends in federal court.

2. In the Purdue Pharma case, the Pocahontas murder cases, the Bedford fundraiser case, the Dr. Knox case, among others, that office made some gutsy calls, I think - not all of them right necessarily but none based on expediency. The buck stops with the boss when decisions about high-profile cases are made - fairly or not.

3. We've debated before whether prosecutorial experience is better than not for an Attorney General. It is. It might even be better than patent litigation experience or antitrust litigation experience.

4. The newspapers were usually on his case. The newspapers are usually wrong.

5. I first met Brownlee in federal court in Big Stone Gap in 1995 - he's lived all over Virginia, as a student in Fairfax County and Lexington and Williamsburg, as a law clerk and lawyer in Abingdon and Roanoke and Northern Virginia. I doubt that Southwest Virginia will ever be much of a priority for the other fellows.

6. His wife and the girls - lovely. He must be doing something right. And - she is on a first-name basis with Johnny Wood, from her time on TV here in Bristol.

7. He is a veteran of the military, and clerking for Judge Wilson, and working for Woods Rogers, and which of these was the more demanding I couldn't say - probably clerking for Judge Wilson. I'd vote for anybody who clerked for Judge Wilson, as those ex-clerks feel the influence of their old judges, always. The Woods Rogers litigators (including alumni) I've known all share a high level of diligence and competence, and you want them with you rather than against you.

8. He's a conservative but a free thinker, with a sense of humor. I've spent a little bit of time with him, as he came to our blogger meeting in Martinsville and one of our bar meetings in Bristol when I was running those and more recently we've met at campaign events, and he speaks well and laughs easily. I rate him as a good guy, besides everything else.

9. OK, I'll add this one - he supported the effort of my client Buchanan County to get $1 million in forfeiture money from the Big Coon Dog case remitted from the United States Department of Justice.

On the next U.S. Attorney for the W.D. Va.

The Roanoke paper reported earlier that Tim Heaphy will be the U.S. Attorney for the Western District of Virginia.

As I wrote here, I knew Tim Heaphy a little back in the day. And, I've seen him a few times since, at VBA meetings and in the Abingdon courthouse, a fine fellow and excellent lawyer. He and Toby Vick got the acquittal for the defendants in the Byrd Brothers trial that I watched a bit of, December before last.

Watch what you ask for

VLW Blog cited to this opinion by Judge Moon, in McIntyre v. Aetna, wherein Judge Moon refused to grant the parties' motion to vacate a final judgment on appeal to the Fourth Circuit. Judge Moon held, consistent with any number of prior W.D. Va. cases, that if the parties burn the court's time by taking a case to final judgment, they're stuck with it. To similar effect were Judge Jones's rulings in Evans v. Mullins and U.S. Trustee v. Equipment Services.

We got Judge Glen Williams to grant vacatur in a case one time, following the steps set forth in Fobian v. Storage Tech. Corp., 164 F.3d 887 (4th Cir. 1999), but it seemed kind of a close-run thing. It is the only context I know of where the District Court gives an advisory opinion, so the Court of Appeals knows to remand the case to it to act on the motion.

On rural broadband

The Washington Post article that weighs the merits of rural broadband against the stories of Rose Hill and Lebanon cites my sister Joan.

Article on SVLAS

This article begins: "A six-year increase in legal aid for victims of domestic abuse in Southwest Virginia has been a success. The Southwest Legal Aid Society (SVLAS) greatly increased its outreach over that period, and the result has been a dramatic 35-percent decline in the number of requested protective orders; a much greater decline than seen statewide."

On the Irish literary form

Responding to one of my posts about a notorious Virginia Supreme Court case, a reader once sent me this:

There once was a couple named Zysk
Who did quite a bit more than just kiss
She sued him for herpes
He said, "I demur, please.
I think it was your *."

This limerick led to another -

From: Steve Minor
Date: Thu, 26 Aug 2004 01:39:12 -0400
Subject: Re: Zysk

Yours deserves a "punctual" reply:

There can be no worse destination
For sodomy or fornication
Than here in Virginny
For instead of sin, we
are only allowed "!"

Hello Bristol Republicans

Come and say hello to Lee Ann Necessary on Thursday, lunchtime at K.P. Duty.

And, if you were making a list of good reasons to support John Brownlee, wouldn't she be one of them?

On the connection between the Uniform Arbitration Act and the Federal Arbitration Act

Today, in A & G Coal v. Integrity Coal Sales, Chief Judge Jones of the W.D. Va. held that the parties' dispute was subject to arbitration.

His analysis began with this point: "Since the purchase orders at issue involve interstate commerce,1 the Federal Arbitration Act (“FAA”), 9 U.S.C.A. § 1-16 (West 1999 & Supp. 2008), applies."

Is that right? My answer would be, yes, but . . . . I made this more complicated in Penn Virginia v. CNX case, arguing that the state arbitration act applied unless and until it was preempted by the FAA, and that it was not where state law was more pro-arbitration even than the FAA (to overstate the point, slightly).

On being a Super Lawyer

Here the VLW posts a motion filed by Mr. Bondurant, opposing the opposing counsel's motion for continuance, and noting among other things that after all, counsel holds himself out as a "Super Lawyer."

Well, I'm a "Super Lawyer" - super enough not to buck heads with Mr. Bondurant when I can avoid it.

Oof, Supreme Court rejects FDA preemption in Wyeth case

In Wyeth v. Levine, decided today, the United States Supreme Court rejected the argument that federal law regulating the labelling of drugs does not preempt state law tort claims against drug manufacturers related to the sufficiency of the labelling of their products.

The vote was 6-3, evidently, with Roberts, Scalia, and Alito on the losing side. I think that if the vote had gone the other way, Congress would have changed the law promptly, or tried to, as in the Ledbetter case.

Still, the preemption arguments makes an awful lot of sense, when the government controls what can and cannot be said in the drug labels, down to the period and comma.

On replacing Judge Blankenship

The Wytheville paper has this article that says some Southwest Virginia legislators might take a second swipe at picking a successor to Judge Keith Blankenship, who resigned from office, leaving a vacancy on the district court for the 27th District. The article says Del. Crockett-Stark is throwing her support behind Dawn Cox, a Republican from Grayson County.

On picking judges in Virginia

Today's Washington Post has this article about a citizen group that is ticked off over the way Fairfax County Judge Gaylord L. Finch Jr. was appointed in this session of the General Assembly.

The group "is advocating term limits for judges and an overhaul of the state's process of evaluating judges. It also wants public participation in judicial selection from start to finish, hearings that are open to the public and anonymity or immunity for those who testify against sitting judges."

The cow chase case

Rex Bowman reports here on the Floyd County trial against the animal control officer who chased a cow and killed a farmer.