The last to know

I finally noticed that the website of the W.D. Va. indicates that the Chief Judge is now Judge Glen Conrad, right next to where it says that Julie Dudley is the Clerk.

Judge Jones (like Jack Nicklaus) was born in 1940. Under 28 U.S.C. 136, no district judge gets to act as chief judge beyond the age of 70 if there are others who qualify to be chief judge.

On twenty years with Crohn's disease

In 1990, I was about to get married, and I knew there was something wrong with me, but didn't know what. I went to see old Dr. Shaffer, who referred me to a gastroenterologist, who figured out that I have Crohn's disease, and who has been my good friend and doctor for twenty years. The Crohn's diagnosis was more than confirmed in November 1996 or thereabouts when a Bristol surgeon removed eighteen inches of bad guts, that were tormenting me.

Over the years, I've taken some medicines that were gentle and did nothing, steroids that made me gain a pound day, other medicines that say on the label they can kill me, I've endured iron shots with the big needle, given myself B-12 shots with the little needles, munched on chewable children's vitamins, shared yogurt with my dogs almost every day. So far I've taken a pass on Remicade and Humira; maybe I get too many advertisements for plaintiff's products liability seminars.

Probably the last 150 pizzas have given me cause for regret, but I'll eat one every now and then. Green peppers, raw onions, orange juice, chocolate, bearnaise and hollandaise are all taboo, but I break bad and have some sometimes. My weight has fluctuated between 145 and 205, and so there are both fat boy and skinny man suits in my closet. I eat too fast, and often have dessert. On the upside, my blood pressure and cholesterol levels are no problem at all.

I've met some lawyers and witnesses with the same problem, and they are always relieved to find out what we have common. "Oh, I don't have to tell you about it," they say - about for example the perils of sitting around in a deposition for hours. Say, I flew to Europe and back a couple of times, imagine that. They could. One of my cousins has it. She and her lawyer husband Steve just flew to China and back to meet their new baby. When I heard this news, I thought about that plane ride.

I've been to a few meetings where the stomach rumblings were so loud I was surprised they were not made a part of the official minutes. ("... and Mr. Minor said grklbklmrkmogl.") One such occasion was at a VBA board meeting, when I was seated by Cheshire Eveleigh, who merely turned and gave me her broadest, crinkliest smile, leaving me no choice but to smile back. In this (and all matters, by the way), I recommend following her example.

A lot of my lawyer buddies or courthouse friends or even clients whom I see just every once in a while keep me up to date on how I'm doing, or at least whether I look better or worse than the last time they saw me. My assistant generally schedules my hearings and depositions for the afternoons, since the mornings are the iffiest part of the day (and I was a night owl even before). When I heard that a friend of mine's son was diagnosed with Crohn's, I said tell him it hasn't been fun but it hasn't held me back from doing what I wanted and going places. There are still some days though when the bad guts flat out betray me, like last November, and today, which gave me the notion to write this post.

Last night of Bluefield Orioles baseball, after 53 years

As reported here, tonight is the last home game of the Bluefield Orioles, ever.

The Bluefield Orioles figured prominently in a famous opinion by Judge Williams of the W.D. Va.

Justice Kinser to be the next Chief Justice

The Virginia Supreme Court has announced the selection of Justice Kinser as the next Chief Justice.

Justice Kinser clerked for Judge Williams, along with George Allen, who appointed her to the Supreme Court, after she had served for some years as magistrate judge for the W.D. Va. She was sworn in as a member of the Virginia Supreme Court in a memorable ceremony at the Lee High School in 1997, and many of the readers of this blog were there, as I was.

The funniest story I ever heard her tell was about the time she sat on a writ panel and some idiot lawyer (my words, not hers) kept addressing her as "Justice Lacy." She said nothing, but the lawyer persisted. Finally, unable to take it any longer, Chief Justice Carrico told the lawyer that in fact his colleague was Justice Kinser, not Lacy, whereupon the lawyer squinted up at the bench and said, "oh, you've changed your hair."

Justice Kinser is a soft-spoken, congenial person, who has been a free thinker on the Court, writing a fair share of separate opinions, including for example her dissent in Almy v. Grisham, with which I agree completely, no matter what the other six justices thought.

Two other college football favorites

A few of my other college football favorites:

1. Sharon Randall's account of taking her brother to a Clemson game, that starts off like this:

"Blind all his life, he has never seen a thing -- not a sunset or a baby's smile or even the nose on my face. Yet he often seems to "see" things the rest of us tend to miss -- things that light him up and make him smile in his own private delight.

You can always tell when he is especially happy because he flicks his hand back and forth really fast as if he's fanning off a big swarm of flies.

Joe's a huge fan of Clemson football. He wouldn't miss a game on the radio for anything -- not even, I suspect, to throw water on his sister if she burst, God forbid, into flames. But he had never been to a game.

So my husband, who is still new to the family and has a lot to learn, suggested that we fly to South Carolina, pick Joe up in Spartanburg, and take him to Death Valley to watch Clemson beat the fur off Furman, so to speak.

"What do you think of that?" I said, when I called my brother to tell him my husband's idea.

"Sister," he said, "I think you married a good man."

In the background, I heard his hand flicking up a storm.

Then I wrote a column about planning to take him to a game and I started hearing from all sorts of Clemson fans, who offered to give us their seats, if need be, and agreed that I had indeed married a good man."

2. Since I took a new member of the Highty-Tighties to Blacksburg a couple of weeks ago, I wonder whether he or his mother or his sister have any idea what the football team's entrance is like.

3. This post and this post and this post include some details about my own football-watching adventures, including hearing the prayer in Death Valley for "those who play, those who watch, and those who do push-ups in the end zone."

College football, for Jill and Joy Lee

This still tickles me, especially "we had some might good dogs." "Condredge Holloway hopping out of an ambulance to return to the UCLA game" in 1974 is about as far back as I go.
SRM, 8/30/2010.

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.

On Guy Tower

When The Virginia Bar Association hired Guy Tower as executive director, they got the right man, and so it's sad news to read that he is retiring, but happy news for him. Not many people can do so many things well, as the job requires and as he did, with good humor. I'm glad my time on the VBA board was while he was there.

Here he is on the left, with three other of my favorites - Patricia Epps, Judge Winship Tower, and John Epps.

NC nuisance law cannot be applied to TVA plants in Tennessee

Yesterday in State of North Carolina v. TVA, the Fourth Circuit in an opinion by Judge Wilkinson joined by Judges Shedd and Niemeyer held that North Carolina's common law of nuisance could not be applied to require the Tennessee Valley Authority to spend a billion dollars to retrofit its coal-powered generation plants in East Tennessee to comply with North Carolina's emissions laws.

Judge Wilkinson wrote, by way of introduction:

"If allowed to stand, the injunction would encourage courts to use vague public nuisance standards to scuttle the nation’s carefully created system for accommodating the need for energy production and the need for clean air. The result would be a balkanization of clean air regulations and a confused patchwork of standards, to the detriment of industry and the environment alike. Moreover, the injunction improperly applied home state law extraterritorially, in direct contradiction to the Supreme Court’s decision in International Paper Co. v. Ouellette, 479 U.S. 481 (1987). Finally, even if it could be assumed that the North Carolina district court did apply Alabama and Tennessee law, it is difficult to understand how an activity expressly permitted and extensively regulated by both federal and state government could somehow constitute a public nuisance. For these reasons, the judgment must be reversed."

Constitutional challenge to FOIA revived

The Virginia Freedom of Information Act limits the right of access to the public records of state and local government in Virginia to the citizens of the Commonwealth. Today in McBurney v. Cuccinelli, the Fourth Circuit in a somewhat split decision reversed the E.D. Va., concluding that some of the out-of-state plaintiffs have shown they have standing to bring a constitutional challenge to this limitation - but not against Mr. Cuccinelli.

Watch what you ask for

In MCI Constructors v. City of Greensboro, the Fourth Circuit in an opinion by Judge Duncan joined by Chief Judge Traxler and Judge Davis affirmed an arbitration award in favor of the City and against the contractor for over $14 million, arising under a $29 million contract for the construction of a wastewater treatment facility.

The case began when the Contractor filed suit against the City and its Engineer, then the City counterclaimed for breach of contract. The District Court granted summary judgment for the City on the counterclaim, in the amount of $13 million, but the Fourth Circuit reversed and remanded, in 2005.

On remand, the parties agreed to arbitration. The arbitration was heard in 2006, the arbitration panel decided the merits of the contract claim in 2007 and awarded $14 million as damages in 2008. The panel refused to modify its award and refused the Contractor's request for a "reasoned award." Back in District Court, the parties filed twenty-two briefs, including such issues as whether the $14 million award included or did not include the $9 million that was still owed to the Contractor for other parts of the contract.

It doesn't sound like the Contractor's decisions to file the suit and then to choose arbitration turned out well - and I've been there.

One for probation officers and riders of public transportation

Today in U.S. v. Alvarado Perez, the Fourth Circuit in a published opinion by Senior Judge Arthur L. Alarcon of the Ninth Circuit, joined by Judges Gregory and Shedd, affirmed an enhanced jail sentence in a gun case for an illegal immigrant gang member and sex offender who took a loaded revolver with him on a city bus to a meeting with his probation officer, where immigration officials seized him and found the pistol in his backpack.

Judge Alarcon, so it says here, "was the first Hispanic appointed to the Ninth Circuit Court of Appeals when former president Jimmy Carter named him to the bench in 1979. He previously served as Chief of Staff and legal counsel for Governor Edmund G. Brown and as chair of the California Parole Board."

On Kagan and Byrd

One of the raps on the Supreme Court nominee being considered this week, Elena Kagan, is that she has never been a judge, never tried a case, and never argued an appeal until just recently.

Off the top of my head, the last couple of Supreme Court justices who were not judges before they went on the Supreme Court were William Rehnquist and Virginia's own Lewis Powell, who were appointed by Nixon. Rehnquist was in the Justice Department after several years of private practice in Arizona, while Powell the former ABA president was with Hunton & Williams, as it is now known. I don't think that either of these two suffered from lack of influence on the Supreme Court on account of their lack of prior judicial experience.

The passing of Senator Robert Byrd from West Virginia reminds me that in his book, he claims that President Nixon considered him for the Supreme Court, before the "surprise" nominations of Rehnquist and Powell in 1971. Evidently having a lot of free time on his hands, Byrd graduated from law school in D.C. while he was a senator, but never took the bar examination. I'm almost certain that Elena Kagan is every bit as qualified as Robert Byrd was to be on the United States Supreme Court.

On Kagan and McChrystal

This morning I saw this article which says among other things: "The solution to a less politicized military can be accomplished via dilution, but for this to happen more political centrists and liberals would have to join the military. I doubt this will happen. According to tens of thousands of surveys conducted by University of Virginia social psychology professor Jonathan Haidt, politically conservative individuals disproportionately value both respect for authority and loyalty — values that perfectly align with military culture. By contrast, those on the political left disproportionally value caring for others and fairness. These are admirable preferences, but they don't immediately comport with a military career."

And, it reminds me of some things I've thought about before. One is that there is nothing wrong with making lawyers to change the world, notwithstanding for example the views of the critics of the law schools at Liberty and Regent. There are a few posts here about the start-up of the Liberty law school, a few years ago.

The Rumsfeld v. FAIR case always struck me as an outrage, both because it was legally unsustainable and because the means never fit the end. In the FAIR case, the law schools claimed that the Solomon Amendment that punished schools for banning military recruiters violated the First Amendment rights of the law school, or some part of it. The Supreme Court rejected this claim, 8-0.

One of the law school administrators at the front of the military recruitment ban was Supreme Court nominee Elena Kagan, whose hearings are this week. If people like her really wanted to change the military, they should have taken a page from Jerry Falwell and Pat Robertson's playbook and been trying to get more Harvard lawyers in the JAG corps, rather than less. The military recruitment ban was unjustified and unjustifiable, legally and practically. If it's true that liberals and centrists are less likely to choose the military of their own accord, then would-be liberal reformers like Ms. Kagan should have been trying to do more not less to encourage them to pursue military careers. It would appear that General McChrystal could have have used a few on his staff, so that he might at least have had more of a clue when he or others around him were saying stupid things.

The Goodlatte Building?

Rep. Goodlatte opposes the renovation of the federal building in Roanoke, named for former Congressman and Supreme Court Justice Richard Poff, preferring instead the construction of a new building.

Chief Justice Hassell on the state of the judiciary in Virginia

Here are the remarks of the Chief Justice to the assembled judges of the Commonwealth last month in Norfolk.

He discussed the problem of the various programs and funding challenges, and then a bit about himself, since it will be his last judicial conference as the chief judge:

"I was born in Norfolk, at Norfolk Community Hospital, which is about 20 minutes from this hotel, adjacent to the campus of Norfolk State University.

I went to elementary school in Norfolk. Judge Jerrauld Jones and I were among 14 black kids who voluntarily integrated Lake Taylor Junior High School in Norfolk. I was one of the first in a group of students who was bussed across town in an effort to integrate the Norfolk public schools.

I attended church in Norfolk, and my great faith in God was birthed, developed, nurtured and matured in Norfolk. My parents met in Norfolk; they were married in Norfolk; and I was raised in Norfolk.

My grandmother, who was a widow with five children at the age of 20 – she was married, but her husband, after whom I was named, died unexpectedly – came to Norfolk in search of work because she had to support her children. She was a domestic worker, and she worked for a Norfolk lawyer whose name appears on probably more deeds of trust than any other lawyer in Virginia, that being Samuel White. He was very kind to my grandmother, and not only did he provide legal help to her, but he helped her acquire real property, which in turn improved her standard of living.

The first time I ever met a lawyer was in Norfolk, Judge Joseph Jordan, who was a member of the Norfolk City Council, and who later became the first black general district court judge in Norfolk.

I have many wonderful memories of Norfolk. I also had the pleasure of attending a hearing in which a young lawyer by the name of Henry Marsh successfully argued to the federal district court in Norfolk that in order to achieve meaningful integration, bussing was a necessary tool. Henry Marsh won his case, and henceforth, I and thousands of other Norfolkians who were enrolled in the public schools began the experiment of racial integration in our public school system.

Some of my mentors are also from Norfolk: Judge James Benton, who was the first judge of color on the Court of Appeals of Virginia, Justice John Charles Thomas, who was the first judge of color on the Supreme Court of Virginia. They were my mentors, they are my friends, and they encouraged me throughout my career. As a matter of fact, when I was a student at the Harvard Law School, John Charles Thomas, who was then a lawyer at Hunton & Williams, would regularly write letters to me. I guess he thought he was my older brother, and he made sure I was attending class and completing my studies."

You knew that was coming one of these days

It says here that some Southwest Virginia landowners have filed suits in Abingdon federal court seeking to have class actions certified against Equitable and CNX for cheating landowners out of billions of dollars in connection with the production of coalbed methane.

Among other things, the Complaints seek judgment that Virginia Gas Act is unconstitutional.




UPDATE: The Equitable complaint is here and the CNX complaint is here.

Former Justice Souter's graduation speech at Harvard

In this speech, former U.S. Supreme Court justice David Souter tries to debunk criticisms of liberal judicial activitism, the gist of which is that not all Constitutional questions are as simple as the minimum age of U.S. Senators.

Eat a good breakfast (or not)

This story about the Duke law student who fainted during oral argument in the Fourth Circuit reminds me of court appearances when I wished I had eaten less for breakfast.

The sheriff said it

This story from the Galax paper describes how the Sheriff of Grayson County tackled a fleeing suspect in a field of Christmas trees.

The article concludes: "Sheriff Vaughan stated that Proverbs 28:1 is correct in that 'only the wicked flee when no man pursueth.'"

What is the interstate commerce nexus of the health care reform bill?

The lawsuit filed by Virginia's Attorney General challenges the authority of Congress acting under the Interstate Commerce clause of the U.S. Constitution to require the purchase of health insurance. The Complaint cites a report by the Congressional Research Service, which analyzes the constitutionality of such a requirement.

What the so-called "Patient Protection and Affordable Healthcare Act" says about the nexus between interstate commerce and the so-called "individual responsibility requirement" is this:

(a) FINDINGS.—Congress makes the following findings:
(1) IN GENERAL.—The individual responsibility requirement
provided for in this section (in this subsection referred to as
the ‘‘requirement’’) is commercial and economic in nature, and
substantially affects interstate commerce, as a result of the
effects described in paragraph (2).
(2) EFFECTS ON THE NATIONAL ECONOMY AND INTERSTATE
COMMERCE.—The effects described in this paragraph are the
following:
(A) The requirement regulates activity that is commercial
and economic in nature: economic and financial
decisions about how and when health care is paid for,
and when health insurance is purchased.
(B) Health insurance and health care services are a
significant part of the national economy. National health
spending is projected to increase from $2,500,000,000,000,
or 17.6 percent of the economy, in 2009 to
$4,700,000,000,000 in 2019. Private health insurance
spending is projected to be $854,000,000,000 in 2009, and
pays for medical supplies, drugs, and equipment that are
shipped in interstate commerce. Since most health insurance
is sold by national or regional health insurance companies,
health insurance is sold in interstate commerce and
claims payments flow through interstate commerce.
(C) The requirement, together with the other provisions
of this Act, will add millions of new consumers to the
health insurance market, increasing the supply of, and
demand for, health care services. According to the Congressional
Budget Office, the requirement will increase the
number and share of Americans who are insured.
(D) The requirement achieves near-universal coverage
by building upon and strengthening the private employerbased
health insurance system, which covers 176,000,000
Americans nationwide. In Massachusetts, a similar requirement
has strengthened private employer-based coverage:
despite the economic downturn, the number of workers
offered employer-based coverage has actually increased.
(E) Half of all personal bankruptcies are caused in
part by medical expenses. By significantly increasing health
insurance coverage, the requirement, together with the
other provisions of this Act, will improve financial security
for families.
(F) Under the Employee Retirement Income Security
Act of 1974 (29 U.S.C. 1001 et seq.), the Public Health
Service Act (42 U.S.C. 201 et seq.), and this Act, the Federal
Government has a significant role in regulating health
insurance which is in interstate commerce.
(G) Under sections 2704 and 2705 of the Public Health
Service Act (as added by section 1201 of this Act), if there
were no requirement, many individuals would wait to purchase
health insurance until they needed care. By significantly
increasing health insurance coverage, the requirement,
together with the other provisions of this Act, will
minimize this adverse selection and broaden the health
insurance risk pool to include healthy individuals, which
will lower health insurance premiums. The requirement
is essential to creating effective health insurance markets
in which improved health insurance products that are
guaranteed issue and do not exclude coverage of preexisting
conditions can be sold.
(H) Administrative costs for private health insurance,
which were $90,000,000,000 in 2006, are 26 to 30 percent
of premiums in the current individual and small group
markets. By significantly increasing health insurance coverage
and the size of purchasing pools, which will increase
economies of scale, the requirement, together with the other
provisions of this Act, will significantly reduce administrative
costs and lower health insurance premiums. The
requirement is essential to creating effective health insurance
markets that do not require underwriting and eliminate
its associated administrative costs.
(3) SUPREME COURT RULING.—In United States v. South-
Eastern Underwriters Association (322 U.S. 533 (1944)), the
Supreme Court of the United States ruled that insurance is
interstate commerce subject to Federal regulation.

H.R. 3590, section 1501(a)(1)-(a)(3).