The Court of Appeals of Virginia recently handed down its opinion in Tatusko v. Commonwealth, 79 Va. App. 721 (2024). It’s a reckless-driving case where the defendant was clocked doing 103 in a 60 mph zone. Tatusko doesn’t strike me as especially interesting on the merits; many of the issues raised were discretionary rulings, and
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NYT: The Crisis in Teaching Constitutional Law
Jesse Wegman has an editorial in The New York Times about the challenges of teaching constitutional law in the current environment. This should give you a flavor of the proceedings:
Under the pretense of practicing so-called originalism, which claims to interpret the Constitution in line with how it was understood at the nation’s founding, these…
Words I’m Afraid to Say at Oral Argument
I am an introvert and a try-hard. This makes me a lot of fun at parties. (Just kidding I never get invited to parties.) It also means that I encounter most of the words I see in print as opposed to real life. So I’m not always 100% sure about how they are supposed to…
New CAV Opinion Confuses Preservation and Endorsement Rules
The Court of Appeals of Virginia handed down its opinion in Ho v. Rahman today. Ho is an adverse-possession case and a published opinion, but I’m not so interested in the merits. I’m much more interested in the opinion’s treatment of a preservation question.
As a threshold matter, the court addressed the appellee’s claim that…
VBA Panel on Perspectives in Appellate Advocacy
Last week, the VBA’s appellate practice section put on a top-notch panel on perspectives in appellate advocacy. The panelists were Judge Friedman of the CAV, Erin Ashwell, and Matt McGuire, with Kendall Burchard moderating.
Judge Friedman, in particular, stressed a few themes:
- Competition for judges’ time and attention. Judge Friedman reported that the CAV has
…
What I’m Reading
Christmas is always a super-stressful time of year for me, but not for any of the normal reasons that plague sane people. My problem is that the people who know and love me tend to get me books–which makes sense, because books and bicycles are basically the twin obsessions of my sad life. The trouble…
Motions to Reconsider and the Creeping Misreadings of Wal-Mart Stores East, LP
An anonymous reader asks if Virginia’s appellate courts are ratcheting down on the use of motions to reconsider to preserve error.
Here’s the background: Traditionally, appellate counsel have used motions to reconsider to clean up the record and preserve new arguments for appeal. It was fairly normal for an appellate lawyer to be hired after…
Links and Stuff
Happy Thanksgiving! In no particular order, here are a few things I’ve been enjoying:
- Hyemin Han’s play-by-play of the D.C. Circuit argument in the Trump gag order case. Credit to longtime De Novo favorite Judge Millett for this hypo: ““Okay. But he can’t say that that person is an ‘un-truth speaker’?”
- Jeannie Suk Gersen’s take
…
Implications of Holding Conferences After Oral Argument
A friend recently pointed out something that should have been obvious, but wasn’t. Like many other appellate courts, the Court of Appeals of Virginia holds its decision conference immediately after oral argument.
I knew this, but I don’t think I appreciated what it meant until we started taking about it. Obviously, appellate judges are well-prepared.…
Unpublished Orders from the CAV
Over the last two months, the Court of Appeals has issued almost 160 opinions. The vast majority of those opinions are unpublished; the court is issuing about 7 unpublished opinions for every published opinion. So the default rule seems to not to publish opinions.
This is interesting for several reasons. First, Code § 17.1-413(A) says…