Wednesday, January 30, 2013
Does Not Translate?: How to Present Your Work to Real People
Recently I've agreed to give talks on social media law issues to "real" people. For example, one of the breakfast talks I've been asked to give is aimed at "judges, city and county commissioners, business leaders and UF administrators and deans." Later, I'm giving a panel presentation on the topic to prominent women alumni of UF. My dilemma is that I want to strike just the right tone and present information at just the right level for these audiences. But I'm agonizing over some basic questions. Can I assume that every educated person has at least an idea of how social media work? What segment of the information that I know about Social Media Law and free speech would be the most interesting to these audiences, and should I just skip a rock over the surface of the most interesting cases and incidents, accompanied by catchy images? How concerned should I be about the offensive potential of talking about the real facts of disturbing cases for a general but educated audience? As a Media Law scholar and teacher, I'm perfectly comfortable talking about the "Fuck the Draft" case or presenting slides related to the heart-wrenching cyberbullying case of Amanda Todd that contain the words "Flash titties, bitch." But can I talk about this at breakfast? If I can, do I need to give a disclaimer first? And for a general audience, do I want to emphasize the disruptive potential of social media speech, or do I have an obligation to balance that segment of the presentation with the postive aspects for free speech? And do any of you agonize over such things every time you speak to a new audience?
Anyway, translation advice is appreciated. I gave our graduation address in December, and I ended up feeling as if I'd hit the right note by orienting the address around a memorable story from history that related to the challenges of law grads today. But the days and even the minutes preceding the speech involved significant agonizing, which you'd think someone whose job involves public speaking on a daily basis wouldn't experience.
Sunday, January 20, 2013
Think they can get it right this time?
No matter what day they're administering the oath.
Friday, January 18, 2013
Vilma lawsuit dismissed
U.S. District Judge Ginger Berrigan yesterday dismissed under FRCP 12(b)(6) the defamation suit filed by Jonathan Vilma, one of the Saints player suspended in "Bountygate,"against Roger Goodell (but not the NFL). The court concluded that Goodell made these statements in his role as commissioner exercising his investigative powers under the CBA, thus the claims were precluded by the anti-suit provision and other portions of the CBA and the Labor Management Relations Act. The court also concluded that Goodell could not have acted with actual malice because his statements came after an investigation, even if it was a procedurally flawed one.
The second of those conclusions is a bit dicey, although the first seems right (based on what little I know about the LMRA). The court was not always faithful in drawing all inferences in favor of the plaintiff and at times seemed to be making factual conclusions based on what she read in the newspaper about Bountygate. There also is some gratuitous "look at me" language that the case "feels as protracted and painful as the Saints season itself" and taking a potshot at Goodell that had he been less heavy-handed, the lawsuit could have been avoided. Lines like that always sounds better coming from Posner or Kozinski.
In any event, the timing of this decision is good for me. I gave my Civ Pro students Vilma as one of their sample pleadings (it lends itself to a great subject matter jurisdiction question) and we just started talking about 12(b)(6).
Wednesday, January 16, 2013
Fixing Pretrial Risk Assessment (in Florida)
For those of you interested in pretrial release, I thought I'd point you to a neat roundtable hosted in part by my colleague Sam Wiseman. Last week, FSU hosted the American Bar Association Roundtable on “Pretrial Risk Assessment and Community Supervision: Tools to Advance Public Safety.” The Roundtable featured panelists discussing a variety of pretrial tools to advance Florida public safety and reduce citizens’ tax burden. The event was co-sponsored by the Florida Sheriffs Association, the Florida Association of Counties, the Florida State University College of Law and the Florida State University Project on Accountable Justice. Video of the event is available here. The focus of the roundtable was on the collection and use of data in the pretrial process, both in individual release decisions and at the system level. Legislators, judges, sheriffs, prosecutors, public defenders, pretrial agency supervisors, commercial bondsmen, GPS monitoring vendors, and court administrators from around the state attended or appeared on panels.
Monday, January 07, 2013
It's Never Too Early To Think About 2016
Even though the presidential election is over and won’t return until 2016, election legislation is a year-round business. And that beleaguered institution, the Electoral College, is the object of recent legislative buzz. Some are shocked—shocked!—that politicians may write facially neutral rules that might improve their own political party’s chances.
The larger scheme to effectively abolish the Electoral College, the National Popular Vote, has slowed of late. It’s a process that fascinates me (and one I’ve written a little about), but it’s not the one I want to focus on here. Instead, I want to examine a smaller, more piecemeal effort.
Under Article II, state legislatures have the power to direct how they appoint presidential electors. Today, most states have adopted a winner-take-all system: the winner of a plurality of that state’s popular vote wins the whole slate of presidential electors. (It’s largely in their rational self-interest: a big chunk of electoral votes awarded to a single candidate makes the state more influential and attracts more attention from the candidates.)
Two states, however, use the “district method.” Thus, in Maine and Nebraska, the presidential candidate who wins each congressional district in the state earns one elector, and the statewide winner earns two electors. In Nebraska in 2008, for example, Senator John McCain won the 1st and 3d districts, Senator Barack Obama won the 2d district, and Mr. McCain won the statewide vote; that yielded four electors for Mr. McCain and one elector for Mr. Obama.
After the 2012 election, a few states are now considering adopting such a method. Legislators in Pennsylvania, Michigan, and Virginia have floated such an idea, as has the governor of Wisconsin and, in slightly more abstract terms, the Secretary of State of Ohio.
But there is a common thread—perhaps just a big coincidence. Each advocate is a Republican in a state with Republican legislative control and a Republican governor—in a state that has preferred the Democratic presidential candidate in the last two presidential elections.
There is, perhaps obviously, a serious advantage to the Republican presidential candidates if these states, previously winner-take-all slates of electors for the Democratic candidates, move to a system where the Republican candidate can win at least a portion of the electors. If enough states do it, pretty soon we’re talking real numbers.
Additionally, more Republicans than Democrats won House districts—Republicans hold a 33-seat advantage—despite the fact that Democratic candidates received more popular votes nationwide. (One slightly upset commentator called them “ridiculous gerrymanders.”)
For three reasons, I’m not that worried.
First, there often are House-President “mismatches.” Nebraska’s Second District in 2008, is one such “mismatch,” where the winner of the congressional seat was a Republican but a winner of the presidential vote was a Democrat. In 2012, Virginia’s Second District is another similar example. Granted, there aren’t many. But the mere fact that a district is gerrymandered to favor a Republican or Democratic member of Congress is no guarantee of the same result in a presidential election. (Moreover, such a change, if enacted, would prompt different behavior from presidential campaigns, which would likely yield more mismatches.)
Second, it’s been proposed before… and it generally has remained just that—a proposal. In 2012, Pennsylvania considered an identical plan, and it didn’t go anywhere. Republicans in California and Democrats in North Carolina considered (and rejected) the district method prior to the 2008 election. Colorado voters considered (and rejected) a plan for proportional allocation of electors in 2004. It seems as if all this has happened before, and will happen again.
Third, call it Rawlsian concern, to borrow a bit from Chad Flanders, that the partisans might not apply a rule today that might backfire on them tomorrow. Take the North Carolina proposal before the 2008 election. Had Democrats in North Carolina had their way, North Carolina’s electors would have been apportioned by congressional district because, so the thinking went, there was little chance that a Democrat would carry the state. Fast forward just a few months, and the Democratic candidate carries the state.
Despite partisan motives, legislatures will be slow to act given the uncertainty of what the next presidential election may hold. And so they are disinclined to make temporary partisan gains for an uncertain political future.
To be the wet blanket on this media fire, I don’t think there’s too much “there” there. But, perhaps you disagree? I’m interested to hear.
Tuesday, January 01, 2013
The Doc Fix Is In
I am grateful for the opportunity to visit as a guest blogger this month. I am, as you might imagine, all about health care finance and reimbursement today.
Roll Call is reporting -- citing anonymous Congressional aides -- that a one year Doc Fix is included in the fiscal cliff resolution package. This, of course, is unconfirmable. But I would be astonished were it not true. Kicking the can down the road on Medicare's sustainable growth rate formula (SGR) is what we are good at. Deciding whether we can ever have a coherent public conversation about Medicare physician reimbursement rates and the systematic undervaluation of primary care services, not so much.
The SGR's origins in the Balanced Budget Act of 1997, as part of an attempt to link Medicare physician reimbursement to the general growth rate of the economy, are almost lost to history.Some of this is because, as early as 2001, the Medicare Payment Advisory Committee (MedPac) was calling for its repeal. This first call for repeal, as with all subsequent ones, has gone unheeded. In 2002, the SGR formula triggered a 4.8% reduction in Medicare reimbursement for physician services. Physicians were displeased. And it is physician displeasure combined with Congressional inability to confront that displeasure that has kept us at an impasse ever since. It is not for nought, though perhaps an overly cynical insight, that the SGR is sometimes described as a Congressional fundraising vehicle. So long as Medicare physician reimbursement hangs in the balance, members of Congress will be in close communication with physician constituents.
Unable to implement, we have deferred SGR implementation through fourteen Doc Fixes since 2002, producing what Peter Suderman has described as the "permanently temporary" decision not to decide what we think about reining in Medicare physician reimbursement. Now you know why I would be astonished by any other news, despite the fact that SGR repeal is rumored to have been included in one of the fiscal cliff negotiating packages.
Why would the long-contemplated SGR repeal have fallen out of the fiscal cliff negotiations? I can only speculate that the fiscal and political complexity of developing an alternative reimbursement restraint played some role. So, here we are: continuously overriding a systemless system. Unable to move forward or backward, like crabs we scuttle continuously sideways.
None of this is news.
Thursday, December 27, 2012
The Majoritarian Senate
Many thanks to Dan Markel for allowing me to make a one-time appearance on this blog. Recently my co-author, Gregory Koger, and I completed a draft of a paper on the filibuster entitled "The Majoritarian Senate," which is now up on SSRN.
In the paper we demostrate that the a majority of senators can reform the filibuster at any time using ordinary Senate procedures. We show that reforming the filibuster does not require a supermajority of senators, the beginning of a new Congress, or any appeals to the Constitution (let alone judicial review). The argument is simple, and one that a lawyer would certainly appreciate. Just as one can change the meaning of the Constitution through interpretation, a majority of senators can change the rules that constitute the modern Senate filibuster by reinterpreting them.
Oddly enough, and this came as a surprise to me, the procedures for Senate rule interpretation cannot be filibustered, can be used at any time, and historically have been used by both the House of Representatives and the Senate to limit filibustering. In fact, the paper shows that the House abolished the filibuster by essentially using the same procedures for rule interpretation as the ones we describe in the paper.
The paper is still a draft, so I would welcome any comments you may have. Part of why we posted the draft now is hopefully to reach policymakers as they negotiate possible filibuster reform proposals. Even if filibuster does not happen in January, we hope that supporters of reform will recognize that they do not have to wait for a new Congress to try again. More broadly, the goal of the paper is to show that Senate rules and procedures are no obstacle to reform. All that is needed is the will of a determined majority of senators. In other words, when it comes to filibuster reform, don't hate the game, hate the players.
Saturday, December 22, 2012
A statement too far?
We live (thankfully) under a Brandeisian "remedy to be applied is more speech" model of the freedom of speech, which protects "verbal tumult, discord, and even offensive utterance" and accepts "verbal cacophony" as "necessary side effects of the broader enduring values which the process of open debate permits us to achieve." One underlying theory of that model is that eventually speakers will be exposed--one statement will go too far or be so totally tone-deaf, ungrounded in reality, insincere or cynical that the speaker loses all credibility.
I wonder if Wayne LaPierre (if not necessarily the NRA as a whole) hit that point yesterday. Probably not, truth be told. But we can hope.
Tuesday, December 18, 2012
The Pathological Perspective, Guns, and Deinstitutionalization
I offer here an observation on some of the post-Sandy Hook debate. It doesn't have any clear policy implications one way or another, but it nonetheless struck me.
Almost 30 years ago, Vince Blasi famously argued that we should take a "pathological perspective" on the First Amendment. He argued that we should interpret the First Amendment such that it is best positioned to do maximum work in the "worst of times" -- the times "when intolerance of unorthodox ideas is most prevalent and when governments are most able and most likely to stifle dissent systematically." It seems to me that a lot (though far from all) of the advocacy of rights of gun ownership in this country takes a similar pathological perspective. Thus we hear that gun ownership is necessary to prevent tyranny, and that we have to be worried about the government disarming the populace.
Yet when we have a mass shooting, we often hear from gun rights advocates (again, far from all of them), that the problem is not lax gun laws but the deinstitutionalization of people with mental illness. David Kopel's op-ed in today's Wall Street Journal contains a few grafs making this argument. What's striking to me is this: Much (though, again, far from all) advocacy of deinstitutionalization in the 1960s particularly was itself driven by a pathological perspective. Some (though far from all) advocates of deinstitutionalization argued that the government would use its power to institutionalize as a means of detaining and torturing dissenters, outcasts, or peceived deviants. And they had then-current examples (from the Soviet Union) where governments were doing just that. (For a hint at these issues, see page 15 and note 63 of this article.)
Given the pathological perspective on these two issues, one might be tempted to ask gun rights advocates, What makes you think that a government that is so tyrranical that we will need to overthrow it by force can be trusted with the power of locking people up based on assertions of mental illness or predictions of dangerousness without the benefit of a criminal process? Okay, a bit of a cute question, and the policy issues for both gun and mental health laws are difficult and complicated ones on which reasonable people can disagree. For myself, I'm not sure that a pathological perspective on gun rights or deinstitutionalization makes a whole lot of sense. For one thing, it likely leads us to ignore the day-to-day threats to freedom that make far more of a practical difference to our lives in expected-value terms than does the exceedingly unlikely "worst of times." And if we do get to the "worst of times," I'm not sure how much value "parchment barriers" (or even pistols and rifles) will have for us in practical terms. But I thought the parallel in the arguments was striking.
Friday, December 14, 2012
On politicizing and making public policy
One of the many phrases that should be retired from all serious public discourse is "this is not the time to politicize a tragedy" (and similar ways of framing the same idea). Another way of saying "politicizing" a tragedy is "making public policy in light of" a tragedy, policy that, we hope, will prevent similar bad events from recurring. All law is made in a factual context or in response to some set of facts or circumstances, especially a unique, tragic event. That is inherent in the nature of law. So please stop suggesting that tragedies should not be a basis for public policy--they inevitably are.
Of course, making prospective legal rules in response to a special factual context, especially a tragic one, may not be the best way to do make law, as Fred Schauer argued. So rushing to enact new gun-control laws is not necessarily the answer--nor is it likely to produce wise policy that will succeed in preventing future tragedies. But reckless pejoratives such as "politicize" should not be used to short-circuit real policy discussion or to run from having the discussion at all.
Monday, December 03, 2012
The Arms Trade Treaty: A Response to the Second Amendment Critique
Shortly after the election, the Obama Administration announced its support for U.N. efforts to develop a new treaty regulating international trade in conventional arms. The terms are still far from settled, but draft provisions from a U.N. conference last summer provide a rough guide on how the treaty might work. I'd like to highlight some of the key provisions and then address a Second Amendment objection that I’ve heard from some treaty critics.
The latest draft suggests that the treaty would have several basic features. First, it would establish a limited number of categorically prohibited international transfers. These include transfers in violation of a measure adopted by the U.N. Security Council pursuant to the Council’s peacekeeping authority; transfers in violation of other international obligations; and transfers made for the purpose of facilitating genocide, crimes against humanity, or certain categories of war crimes. Second, the treaty would limit the power of states to export conventional arms by requiring assessments on whether proposed exports would contribute to or undermine peace and security. Mandatory considerations would include whether the arms could be used to commit a serious violation of international humanitarian law, human rights law, or an offense under international treaties relating to terrorism. In the event of an “overriding risk” of one of these consequences, the treaty would prohibit the exporting state from authorizing the transfer. The treaty would also require exporting states to “consider taking feasible measures” to make sure that the arms are not diverted to the illicit market, used to commit gender-based violence, or used by transnational organized crime. Third, the treaty would impose obligations on arms-importing states. These parties would be obligated to provide information to help their exporting counterparts complete the required risk assessments. Importing states would also have to “put in place adequate measures that will allow them to regulate, where necessary, imports of conventional arms,” and “adopt appropriate measures to prevent the diversion of imported conventional arms . . . to the illicit market or for unauthorized end use.” Other provisions impose restrictions on brokering and mandate record-keeping and reporting.
Some U.S. critics of the draft treaty have argued that it would violate the Second Amendment, but I think this objection has some major weaknesses. First, most of the restrictions would simply have no effect on the right to keep and bear arms. Here’s the proposed list of regulated items: battle tanks, armored combat vehicles, large-caliber artillery systems, combat aircraft, attack helicopters, warships, missiles and missile launchers, and “small arms and light weapons.” As Heller explained, the Second Amendment’s reference to “arms” applies only “to weapons . . . not specifically designed for military use and . . . not employed in a military capacity.” The result is that all but the last items on the list—“small arms and light weapons”—plainly fall outside of constitutional protection. Moreover, even to the extent that the treaty applies to arms covered by the Second Amendment, significant portions of the treaty would not interfere with the right to “keep and bear” those arms. For example, provisions that would restrict exportation—in a sense the very opposite of “keep[ing]” and “bear[ing]”—from the United States surely raise no constitutional problem. And as a practical matter, it’s hard to see how the prohibitions on transfers in violation of Security Council measures or for the purpose of facilitating genocide, crimes against humanity, or certain categories of war crimes would interfere with the right of U.S. citizens to keep and bear arms.
The only non-frivolous argument against the treaty focuses on its import restrictions. As explained above, the treaty would require states to “put in place adequate measures that will allow them to regulate, where necessary, imports of conventional arms,” and “adopt appropriate measures to prevent the diversion of imported conventional arms . . . to the illicit market or for unauthorized end use.” The opponents’ argument seems to be that these provisions would require the United States to adopt restrictive measures that would themselves infringe upon the right to bear arms. But several observations undercut that argument. First, it’s actually not clear that the provisions would require the United States to adopt any new restrictions. Federal law currently imposes permit and registration requirements on arms importers, bars some imports based on country of origin, mandates broker registration, and authorizes criminal penalties against violators. There is no textual basis for concluding that these measures are anything short of “adequate” and “appropriate.” As long as that’s the case, no new import restrictions would be necessary in the United States, and the treaty would violate the Second Amendment only if the existing federal restrictions do. Treaty opponents seem unwilling to challenge longstanding federal law in this way.
Second, even if the treaty were to require something more restrictive than current federal law, it’s still not clear that the additional restrictions would be unconstitutional. Post-Heller, lower courts have held that the level of scrutiny applied to a regulation depends on the degree to which the law burdens the right and the nature of the conduct being regulated. Where a regulation does not impose a severe burden or does not implicate the right’s core—i.e., “defense of hearth and home” by “law-abiding, responsible citizens”—courts have applied intermediate scrutiny. In doing so, they have upheld restrictions such as registration requirements and licensing fees. Critics of the ATT would have to establish that the contemplated minimum import restrictions would fail under this framework even while a variety of other regulations have survived. I have not encountered a persuasive argument about why that would be the case, particularly given the important national interests in favor of controlling transnational arms flows.
Finally, even assuming the contemplated import restrictions are constitutionally suspect, the United States could simply join the treaty subject to a reservation ensuring that the restrictions raise no constitutional problem. We did something similar with respect to the Genocide Convention and, more recently, entered a Constitution-based reservation to the Torture Convention. The reservation here would have to comport with the object and purpose of the ATT, but a Second Amendment-based reservation could meet that requirement, as several parts of the treaty draft reflect a purpose of respecting national laws.
The treaty text is far from finalized, so it’s possible that the drafting process will generate Second Amendment problems that are currently absent. But I think the real barrier to U.S. ratification won’t be the Constitution; it will be political: Practically speaking, fierce opposition from U.S. arms manufacturers is guaranteed. In 2011, U.S. arms-export agreements with developing nations amounted to $66.3 billion, or an astounding 78.7% of the total global market share. It is hard to believe that the Senate will be able to withstand the likely tidal wave of pro-export lobbying.
Wednesday, November 28, 2012
Inside the Mind of Mankiw: A Dialogue
Over the weekend Greg Mankiw was moved once again to speak out against increases in the top marginal income tax rate. Rather than threatening a massive withdrawal of human capital, Mankiw took a different approach. Instead he created an imaginary internal dialogue between a "moderate" Obama and a "liberal" Obama. I've always enjoyed this type of dramatic device, so I thought it'd be fun to imagine the dialogue between "libertarian advocate" Greg Mankiw and "rational actor" Greg Mankiw. Here we go!
LIBERTARIAN MANKIW: Oh boy -- it looks like the top tax brackets are about to get jacked up! This is terrible!
RATIONAL ACTOR MANKIW: Just like in 2008 and 2010, when we predicted that the John Galts of the world would deprive the world of their talents? Wake me in another two years.
LIB: But this time it might actually happen! Obama is talking tough, Boehner is showing signs of weakness, and most people actually think it's not a bad idea!
RAT: Sorry, but I can't get too worked up over this. Maybe we can just run that 2010 column again.
LIB: For a third time? I'm not sure it was so persuasive the first two times. I think we need a new strategy.
RAT: The Times doesn't pay us nearly enough for these columns. I don't get out of bed for less than $10,000.
LIB: But this is our chance to shape the minds of America!
RAT: You mean the minds of Times readers. These are folks who advocate for higher taxes while reading about "reasonably priced" Massimo Dutti fashions.
LIB: Yes, precisely! They're torn between an ideological desire for higher tax rates and a personal desire to have more money.
RAT: Everyone wants more money.
LIB: Exactly! So we have to come up with some excuse to get them off this line in the sand about raising the marginal rates for incomes over $250,000. Obama doesn't really want to raise taxes, either -- he wants some sort of Grand Bargain that shows compromise and bipartisanship. How do we do this?
RAT: This sounds too hard. Are you sure we can't three-peat?
LIB: Hmmm. We just need some literary device . . . .
RAT: How about a column set in the future, designed as a warning about the present? Those always have the subtlety of a sledgehammer.
LIB: We did that already.
RAT: I know -- but when has that stopped us?
LIB: Hmmm. . . . If I could only get inside Obama's mind, and know what would be most convincing . . . . That's it!
LIB: I'll write a column as if I'm inside Obama's mind!
RAT: But what do you know about Obama? You were an advisor to Romney.
LIB: It's a dramatic device! I can put words in his mouth, and they'll sound like he's saying them.
RAT: So we're going to have the President parrot our economic policies? Sounds convincing.
LIB: Don't be sarcastic. We'll have a "moderate" Obama who parrots our positions. But then we'll have a "liberal" Obama who represents the left.
RAT: You mean a caricature to which we can attribute extreme positions? Like a desire to raise taxes to 73%? To create a European-style safety net? To push the country into recession? To make the country more like California and . . . France?!?
LIB: You betcha! The "moderate" positions will look positively benign in comparison.
RAT: But the moderate policies will just be a warmed-over version on Romnomics, no?
LIB: Sure. What's your point?
RAT: I'm sure that'll be convincing. I better go make some real money before the tax rates go up. I'm extremely sensitive to those, you know. Oh, one last thing -- are you sure this won't sound like a stilted version of a sixth-grade play?
LIB: Well, these imagined dialogues are tough to pull off. I'll do my best. Let's see --"It’s fun to make the plutocrats squirm." That's great -- liberal Obama would totally say something like that.
RAT: Hey, if this thing actually does take off, make sure we own the rights to these characters. I can see "liberal and moderate Obama" T-shirts, mugs, salt and pepper shakers . . . . Can we start a couple Twitter feeds?
LIB: "Are you nuts? I don’t want to become France." You get 'em, moderate Obama!
Tuesday, November 20, 2012
My daughter is well past Sesame Street age, although she spent a year (from 20 months to 32 months) carrying a stuffed Elmo everywhere. But given the news that the man who created Elmo, Kevin Clash, has resigned from the show in the wake of two separate allegations of child sexual abuse, a question:
Can Elmo survive as a character? Sesame Street producers insist he can, that other puppeteers are trained to do the character and that "Elmo is bigger than any one person." But can parents separate Elmo the character from the person who played him, given how much attention Clash himself has received? And there are two aspects to this question. First, will parents allow their kids to like, watch, and play with Elmo? Second, what do the show and parents do with the fact that most of the 2013-14 season (the show's 44th) has been taped, meaning Clash will be playing Elmo well into 2014?
Monday, November 19, 2012
Final sports/election link
One final sports "predictor" of the presidential election: The winner of The Game--a Harvard win means a Democratic president, a Yale win means a Republican president. This held form this year, as Harvard won 34-24.
More broadly, since they have been playing since 1875, we actually have some data to work with.
• Since the origins of the rivalry, there have been 35 presidential elections and 32 games (no games in 1888, 1894, or 1940), this has held 20 times (62 %--not that impressive). That includes the Harvard Beats Yale 29-29 tie in 1968. Maybe that election should have gone to the House of Representatives.
• Over the last 18 elections and 17 games going back to 1940 (again, no game in 1944 because of World War II), it has held 14 times (82 %--much better).
• In my lifetime, going back 12 elections and 12 games to 1968, it has held 9 times (75 %).
• Over the last 9 elections going back to 1980 (call it my political lifetime), it has held 8 times (89 %); the only miss was W's reelection in 2004.
Of course, since The Game usually is played in mid-to-late November, this is less a predictor than an ex post correlation. Except in 2000, that is, when they played while the Florida debacle was playing out. Maybe we should not have been so surprised when Bush v. Gore came out as it did.
Friday, November 09, 2012
Making and Taking
David Brooks is not my favorite New York Times columnist, though he’s certainly not the worst (I’m looking at you, Gail). And sometimes he says things that are both right and really important. He said something like that today, when he advised Republicans to start thinking about ethnic groups (in my own experience, Latinos) in ways that transcend this foolish and disgusting makers-takers/"they want stuff" theme that is oozing into the post-election discussion.
What he points out is that many ethnic groups (again, I’m thinking personally about Latinos) have immense respect for hard work, but also immense appreciation for the good government can do. Without spilling too much of my unabridged biography here I’ll just say that I have a lot of personal experience with people working exceptionally hard. And valuing it. My father used to tell me that his father, a barber, would say “If I don’t cut hair, we don’t eat.” My father got that lesson. My other grandfather started as a dishwasher in a hotel restaurant and eventually bought a Mexican restaurant: he used his wife and his daughter (my mother) as waitresses and cashiers, and he did all the cooking and purchasing himself. The only outside person who did any work there was a bookkeeper he used at tax time.
But a lot of whatever success we achieved as a family could not have happened without government programs. I’ll start with the biggest program of them all: the military, which, while nearly killing my father more than once, nevertheless ended up providing us housing, discounted groceries, education (from first grade to, in the case of my father, vocational education), and yes, the biggest evil of all, government-run health care (which was excellent, by the way). We also benefitted from food stamps, Pell Grants and guaranteed student loans, state universities, Medicare, and Medicaid. I’m sure I’m leaving something out.
Anyway, enough detail. As a matter of setting the record straight I’m glad David Brooks explained all this to the blowhards and self-righteous titans of white American industriousness who think that a vote for Obama was a vote for government cheese and a chance to sit around and keep sucking on the government teat. Although personally I don’t really care if they get the message: if they keep talking like they talked this time around (and are still talking) at least I won’t have to spend two months every four years refreshing 538.com rather than, well, working. Because I won’t have to worry about how the election will turn out.
Thursday, November 08, 2012
Interesting News Out of FloridaAccording to this Miami Herald news story it seems like President Obama nearly won the Cuban-American vote in Florida. (Thanks to Pedro Malavet for the tip.) I'm not sure how big a deal it is that the President lost by "only" 52-48, but the people quoted in the article think it's significant. Any thoughts from people who follow this issue on how significant this is, either this time around or long-term?
Wednesday, November 07, 2012
Some thoughts on the election
My political views have been made obvious in this forum in the past, so I'm pretty happy this morning. A couple of random thoughts.
1) My confidence level picked up around 5 p.m. yesterday afternoon when I picked my daughter up from school; that's when I heard the results of the "election" at her school, which went 125-75 for Obama. As we all know, as Temple Beth Am Day School goes, so goes the country.
2) We had a split decision on sports predictors. A National League team won the World Series, which means a Democratic President; this is now 17/27 (62.9%). On the other hand, the Redskins lost at home on Sunday, their final home game before the Election, but the incumbent party retained the White House; this is now 17/19 (89 %). I have to admit, my anxiety level actually rose after that game.3) Does this result suggest that independent expenditures by outside groups are not all there is to elections? And that Citizens United is not the death knell of democracy and otherwise the root of all that is wrong with the country? Republican Super PACS threw big money at six races--five Senate races and the presidency--and lost all six. Perhaps running non-stop ads for two months is not the way to appeal to voters, so simply throwing lots of money into the mix does not ensure electoral success. Or is Obama uniquely successful in organizing on the ground and at gathering large numbers of small donations? So while that organization could overcome unlimited individual and corporate PAC money, perhaps massive spending will make all the difference in four years, when Obama leaves the scene.
4) What happens with the Supreme Court? Do Scalia and Kennedy try to hang on until 2017? Does Ginsburg step aside after OT 2013 (in June 2014) to give Obama the appointment? And does Obama (potentially with 56-seat support and the possibility of filibuster reform in the Senate) make judgeships a higher priority in his second term?5) Speaking of the Court: A comment on one poll-aggregation blog said that Obama owed his reelection to John Roberts. While the direct causation is dubious, of course, there is a point there. Popular or not (and I still believe the law will increase in popularity as it is implemented over the next several years), this was a signal legislative achievement; to have it invalidated would have left a gaping hole in his record that the public might not have forgiven. Unless he had run against the Court (something Democrats don't do well), he would have been hit hard with charges of "he rammed through this unpopular law that also was unconstitutional."
6) Finally, I must admit to one personal/professional perspective on this election. FIU's outstanding dean is Alex Acosta, an Assistant Attorney General and U.S. Attorney under George W. Bush. He might have been (I'm guessing at this completely--he and I have never spoken about it) a potential short-lister for either a high executive position or a judgeship under a President Romney (Alex is a pragmatist and, I believe, would be a great trial judge). So I'm happy that this election means four more years--of our current deanship and thus continued advancement for this law school.
Thursday, November 01, 2012
In a Galaxy Far, Far Away...They All Lived Happily Ever After
Yesterday's news that Disney will be absorbing Lucasfilm -- and releasing "Episode 7" of the Star Wars series in 2015 -- has prompted strong reactions along multiple fronts. I've never thought of myself as a "fan boy," and I've never been to a convention. Still, the original Star Wars series certainly was a formative part of my childhood -- helping to define a generation and a moment in history. Empire was the first movie I ever saw in a "theater" (although it was a second-run on a military base, so it was some time after the original screening). I had the Millenium Falcon toy and an imperial walker, and a number of little plastic humanoids that provided hours of entertainment.
Like most people of a certain age, I hated the "new" trilogy (although I personnally didn't really have any feelings about reworking of the originals). Frankly, if there is going to be a new trilogy set in the Star Wars universe, the fact that anyone other than George Lucas would call the shots is a good thing.
But Disney isn't just anyone. This is Team Rodent.They say that parenthood changes one's worldview. I am still too sleep deprived three and half years into that adventure to have a worldview. But I will say that parenting changes one's view of Disney.
Without Baby Einsteins, I don't think I could have ever convinced my 10 month old to eat food. Without Jake and the Neverland Pirates, my three-year-old would be far less handy to have around for boarding parties.
One thing I will say about Disney movies is that, even though they are "family oriented," these things are dark. (And the DVD settings aren't aligned perfectly to allow fast-forwarding past, say, the kidnapping scene in Tangled or the "bad bear" attacks in Brave). So I think we can expect some of the sadness of the original Star Wars and less of the silliness of the prequels.
And wonderfully, we will now perhaps have a trilogy of Star Wars movies that merits "The Force and the Law" conferences and speculation about the impact of a personhood amendment on Wookiees.
Mrs. Coach speaks
Still more on the dust-up over Mitt Romney using Clear Eyes, Full Hearts in his campaign and speeches: Actress Connie Britton (who played Tami Taylor, a/k/a Mrs. Coach) and Sarah Aubrey (an executive producer on the show) wrote an op-ed in USA Today criticizing Romney for using the slogan, insisting that the women of Dillon, Texas would not approve. The piece particularly focuses on issues of health care and women's rights--ACA, equal pay, the future viability of Planned Parenthood (they point out that the single mother of star running back "Smash" Williams worked there, a detail I did not know or remember).
Anyway, draw your own conclusions.
Wednesday, October 24, 2012
Recently I've been researching the antitrust and communications law issues posed by various league sports' broadcast contracts (that's broadcast with a little "b" for you telecom wonks (and you know I say that with affection)). One of the more interesting developments in the arena is the birth of the University of Texas' Longhorn Network (LHN). LHN provides hook 'em viewers total access to all things Longhorn, including team practices and interviews with coaches.
LHN is managed and delivered to distributors by ESPN. In exchange for content, ESPN will pay UT $300 million over twenty years. Now since the academy may just be the last place where that's still considered real money; it was with a bit of disbelief that I read an article in which Longhorn coach, Mack Brown, listed some "first world problems" LHN was causing him. Here are some brief excerpts:
[Problem 1, the opponents]: "We know they (opponents) have it for a fact," Brown said. "Lots of them do. And people are taping it across the country and sending it to the coach if they don't have it in their area. . . . "It's in Waco. Baylor sees every practice. So it's not like it used to be. We're a little overexposed." [ed. note - the LH's only transmit the exercise portion of their practices, not the actual plays].
[Problem 2, the time commitment]: Brown said he's spending six hours a week minimum preparing, participating or traveling to the studio for shows that air on LHN. [As Brown says] ,"And I do have three shows over there that take you 20 minutes to get there and 20 minutes to get back and an hour to do them. So there's no question it takes away some of your time."
At first I thought Mack sounded a bit like a whining 1L but I quickly abandoned that analogy as being unfair to 1Ls -- after all 1Ls pay us, Mack is paid millions. If Mack feels he (or his staff) is now personally obligated to do more under the new regime I have just two words of advice: "contract modification." But then again, I'm not a Longhorn follower--and I don't watch LHN--so I may be missing the wellspring of fear that the network will reveal team secrets and strategies so important $300 million is simply inadequate compensation. If I am missing such a point, I have a strange suspicion you just may tell me about it.
The Wrong Way to PSA
People have been discussing Bridget Mary McCormack’s recent, 4-minute web ad in support of her candidacy for the Michigan Supreme Court – a video which features the reunited cast of The West Wing. The ad is clever enough for what it is – a way to raise McCormack’s profile in a down-ballot race where citizens are less likely to vote. And it says all the things a judicial candidate must say to win over voters: McCormack favors “justice for ordinary people, for families with sick kids, for victims of domestic violence.” She has "fought to free innocent men and women, and put the actual criminals behind bars." Reciting these qualities is somewhat trite, of course – what judicial candidate would ever come out as soft on crime or against families and victims? – but otherwise, it’s all well and good. As an advertisement for a particular candidate in a contested race, it seems quite effective.
However, a shorter version of the ad – pitched as a nonpartisan public service announcement – fails spectacularly. That version retains the identical West Wing “walk and talk” setup but omits any specific mention of McCormack’s qualifications. Instead, it positions itself solely as (in CJ’s words) “a gentle reminder for people to look for the nonpartisan section on their ballot and go vote there.” Voting is important, the ad tells us, because state supreme courts rule on issues that affect millions of Americans, like civil rights, workplace rights, and the environment.
These are certainly issues where an informed vote matters. But in the short-form ad, the Bartlett Administration braintrust offers no guidance whatsoever on how citizens might actually cast such a vote. Indeed, the ad doesn’t even recommend that citizens learn anything about the candidates before stepping into the voting booth. The cognitive dissonance is jarring: your vote is critically important, the ad suggests, but not so important that you should take the time to enlighten it in any way.
The short-form PSA is all the more troubling because it deliberately targets citizens who engage in straight-ticket voting for legislative and executive races (i.e., checking one box to vote for all Democrats or all Republicans). As Meryl Chertoff and Dustin Robinson recently highlighted, this “check one and you’re done” approach raises significant accountability problems in states with partisan judicial elections. In nonpartisan judicial races, the dangers of voter ignorance are exacerbated even further: without any readily available information, voters who otherwise rely on party affiliation are apt to choose among candidates based on factors like gender, perceived race or ethnicity, a familiar-sounding last name, or even complete whimsy. Toby, Josh, Donna and the gang may as well look into the camera and say, “Go into the booth and flip a coin. People’s lives depend on it.”
There are better ways to get out an informed vote in judicial elections. Two years ago, the Colorado Bar Association sponsored this lighthearted PSA which encouraged voters to actually learn something about their judges before deciding their fates in the voting booth. To be sure, Colorado benefits from some structural advantages over Michigan, including retention elections and a formal judicial performance evaluation program (the benefits of which I discuss here). But at least the message in Colorado was the right one: if you’re going to vote in judicial elections, be responsible enough to learn something about the people on the ballot before you do. Regardless of how your state chooses judges, that’s a good message for all of us to take into Election Day.
Tuesday, October 23, 2012
Outsourcing NCAA enforcement
An excellent and thoughtful essay in The Atlantic from my friend and law school classmate Stephen Miller, arguing that the NCAA should charge an outside body with conducting major investigations and punishments. Steve is a former Scalia clerk and AUSA; his practice now includes representing athletes in NCAA proceedings. He also is a lifelong Kentucky fan, so he is personally familiar with the vagaries of NCAA enforcement.
This is an interesting take, especially if we begin from the premise that the NCAA is here to stay, that there is good reason to regulate intercollegiate athletics and the conduct of student-athletes (in terms of amateurism, academics, etc.), and that self-regulation, given the structure of college sports, is unworkable.
Thursday, October 18, 2012
F-Words: Fairness and Freedom in Contract Law
I am participating in a online symposium on Concurring Opinions, where we are discussing Larry Cunningham's fantastic new book, Contracts in the Real World, and where you should check out the rest of the commentary.
As I read "Facing Limits," Larry's chapter on unenforceable bargains, I had to pause and smile at the following line:
People often think that fairness is a court's chief concern, but that is not always true in contract cases (p. 57).
I still remember the first time someone used the word "fair" in Douglas Baird's Contracts class. "Wait, wait," he cried, with an impish grin. "This is Contracts! We can't use 'the f-word' in here!"1 Of course, Larry also correctly recognizes the flip side of the coin. If courts are not adjudicating contracts disputes based on what is "fair," we might think that "all contracts are enforced as made," but as Larry points out, "that is not quite right, either" (p. 57).
Pedagogically, Contracts in the Real World is effective due to its pairings of contrasting casebook classics, juxtaposed against relevant modern disputes. In nearly every instance, Larry does an excellent job of matching pairs of cases that present both sides of the argument. I don't mean to damn with faint praise, because I love the project overall, but I feel like Larry may have missed the boat with one pairing of cases.
As I mentioned, the chapter on Facing Limits is in part about the difficulty of balancing fairness, or equitable intuitions, against freedom of parties to be bound by their agreements. Larry pairs In re Baby M, a case where the New Jersey's highest court invalidated a surrogacy agreement with Johnson v. Calvert, a case where the California Supreme Court upholds such an agreement. As I discuss after the break, I'm troubled that the Court in Baby M could be on the wrong side of both fairness and freedom.
Facing Limits on Surrogacy Agreements
In re Baby M was arguably the first case on surrogacy agreements to reach national prominence. The court found unenforceable a surrogacy agreement between William and Elizabeth Stern, who hoped to raise a child that Elizabeth could not bear, and Mary Beth Whitehead, who wanted to give another couple "the gift of life" and agreed to bring William's child, Baby M, to term. Mrs. Whitehead and her then-husband Richard were in tight financial straits, and the surrogacy deal promised $10,000, "on surrender of custody of the child" to the Sterns.
Once she gave birth, Mrs. Whitehead found it difficult to part with the baby girl she called Sara Elizabeth, but the Sterns planned to name Melissa. To avoid relinquishing the child, the Whiteheads fled to Florida with the baby. When Baby M was returned to the Sterns and everyone made it to court, the trial judge determined that the interests of the baby were best served by granting custody to the Sterns. The Supreme Court of New Jersey agreed with that assessment, but on its way to that conclusion, rejected the validity of the surrogacy contract itself, in which all parties stipulated, prior to the birth of Baby M, that it was in the child's best interest to live with the Sterns.
The Supreme Court's decision ostensibly turned on the unenforceability of the contract because, even in America, "there are, in a civilized society, some things that money cannot buy" (p. 55). But the decision is full of language suggesting that, in the Court's opinion, Mrs. Whitehead didn't know what she was doing. In the very paragraph that the Court assumed that she could consent to the contract, the Court marginalized her capacity to consent.
The Court bought into two tropes often trotted out by those who aspire to protect the poor from themselves: the coercive effects of money, and the inability of the poor to fully understand the consequences of their decisions. The Court was troubled that Mrs. Whitehead, "[t]he natural mother," did not "receive the benefit of counseling and guidance to assist her in making a decision that may affect her for a lifetime." The Court was perhaps suspicious she could not. After noting the distressing state of her financial circumstances, the Court posited that "the monetary incentive to sell her child may, depending on her financial circumstances, make her decision less voluntary."
Fairness and Freedom
It strikes me as unfair to conclude that a mother of two is incapable of considering what it might mean to give birth to a third. Holding the surrogate to the bargain can seem unfair at the difficult moment where she hands over the baby, but I struggle to see how it is any less unfair to allow the parents to invest their hearts and energy into planning for a baby that will come, but will not become theirs.
Turning to the question of the coercive effect of money, the problem with paternalistic protections is they often protect the neediest from the thing they ostensibly need the most. Many interested parties find ways to make money on adoption and surrogacy. It's puzzling, if we are truly serious about protecting the needy, that we would protect them from also acquiring some of the money that we seem to assume they so desparately need.
Here's another way to make the same point: in the wake of Baby M, some states allow surrogacy contracts, and some don't. Hopeful parents who can afford to enter into surrogacy contracts will go to states, like California, where those contracts are enforced. Surrogacy providers who hope to make their money as an intermediary will focus on markets where their contracts will survive judicial scrutiny. Our potential surrogates, however, are more likely to be tied to the jurisdictions in which they reside, at least if the assumptions about poverty in the Baby M opinion are generalizable. So altruistic surrogates will be able to carry a child to term in every state, but those who desire to make a bargain can do so only in those states willing to recognize them. To me, that sounds neither free nor fair.
Larry takes some comfort in the common law inquiry into the best interests of the child, and with that I take no issue. In a case where the contract and the child's interests are at loggerheads, it seems appropriate in the abstract for the best interests to be a heavy thumb on the scale, or even to trump the prior agreement. I'm just not sure that In re Baby M -- a case where the Court knocked out the contract even though the contract terms and best interests were essentially in line -- is a case where the value of the best interest test are best brought to light.
1 I may have slightly dramatized this exchange, although my classmates assure me I did not invent it from whole cloth.
The Presidential Election and the Lower Federal Courts
Over at the Volokh Conspiracy, Ilya Somin wonders why no one is asking the Presidential candidates about judicial nominations during the debates. I sympathize with the concern but find it a bit misplaced: in any of the typical debate formats, the responses will inevitably tend toward vague descriptions of “strict constructionists” or individuals with sufficient “empathy.” This may rally the base but otherwise offers little insight. (The problem isn’t limited to Presidential aspirants: in their second debate, Massachusetts senate candidates Elizabeth Warren and Scott Brown offered two of the least illuminating answers ever when asked to name their model Supreme Court Justice.)
One way to get better answers on the candidate’s view of the relevance and importance of judicial nominations is to focus on the lower courts. The Supreme Court captures public attention, of course, but it is the lower courts where most citizens have contact with the federal judiciary, and where a President can leave a more lasting legacy. To that end, here are two questions I would like to see posed to the candidates before Election Day:
President Obama, you inherited 41 federal district court vacancies on Inauguration Day 2009, yet during the entirety of your first year in office you nominated a mere 21 people to fill those vacancies. (Fuller details here.) Today there are 62 vacancies in the district courts, representing a shortfall of almost 10 percent. Despite this crisis, and even though you enjoyed a significant Democratic majority in the Senate for your first two years in office, your overall pace of lower court nominations has lagged significantly behind your two immediate predecessors. Why?
Governor Romney, during your time as Governor of Massachusetts you established a Judicial Nominating Commission to vet judicial candidates and send the most promising individuals to you for further consideration. The Nominating Commission was heralded as a model for the country, particularly since it relied on a blind review that did not consider the candidate's party affiliation. Yet some have complained that you stripped the commission of many of its powers toward the end of your term in order to put a more partisan stamp on the judiciary. What lessons did you learn from the Nominating Commission experience, and as President, would you favor the expanded use of senatorial screening committees to help select qualified candidates for nomination to district court judgeships?
Sunday, October 14, 2012
Clear eyes, full hearts, can't lose (the election)
A mini controversy has sprung up over Mitt Romney adopting the slogan "clear eyes, full hearts, can't lose" from the tv show Friday Night Lights as a campaign rally slogan. Peter Berg, the show's creator, wrote a letter to Romney telling him that his "politics and campaign are clearly not aligned with the themes we portrayed in our series" and asking him to "[p]lease come up with your own campaign slogan." No word, at this point, whether the campaign is going to acquiesce.
This is just the latest in a repeated story--GOP candidate uses some pop culture theme (song, show, slogan, character, etc.) and its creator complains and asks him to stop. And to the extent Berg is correct that Romney's politics are contrary to the show's message, that, too, is par for the course. Politicians (and others) have long been using Mellencamp's Pink Houses and Springsteen's Born in the U.S.A. as "rah-rah, America is great" songs, completely missing the songs' obvious theme that America has ignored and abandoned segments of society--the working class, Viet Nam vets, working-class Viet Nam vets.
Several media critics have argued that it is not clear whether the show's political message is consistent or aligned with the campaign's message, because the show's politics are not clear. The show, they suggest, was both liberal and conservative--"bi-partisan," as one critic writes. Slate's David Plotz argued last year that the show's politics are "communitarian;" it values the communities that we create of whatever form--families, friends, schools, small towns, teams, team boosters, churches, etc. It's an interesting insight, although I would counter that the central institutions depicted--the school, the football booster club, and the town that loved its team--all were corrupt and influenced by wealthy individuals with questionable motives and all screwed over Coach and Mrs. Coach at just about every turn. Anyway, the argument now seems to be that a show with political universality should not be coopted by one side or the other.
The question is whether it matters. Putting to one side any intellectual property issues and whether a political campaign can claim fair use of the song/slogan/show, what difference does it make whether the candidate's use of the song/slogan/character is consistent with its original or intended message? In fact, isn't the "fair use" argument stronger if the candidate can argue that he is giving new or altered meaning to the culture referent? Plus, whatever the message of FNL itself, the "clear eyes" slogan has little or nothing to do with any of that.
Thursday, October 11, 2012
Coming soon?: All-You-Can-Watch Local Sports (whether you want it or not)
I teach antitrust and communications law--both filled with meaty, topical issues that can generate complex questions--but a perennial student favorite is "Why can't I watch my hometown team on TV?" This question typically elicits a dry recital of specific league rules, FCC blackout regulations and a varied assortment of broadcast deals. But I've been pleasantly surprised that recent developments are changing that answer--and may soon even eliminate the question. For example the NFL has relaxed its blackout rules, designed primarily to bolster gate receipts, in an apparent nod to evolving league economics. The FCC's sports blackout rules, are also up for reconsideration, as changing economics and video delivery preferences have arguably undercut the underlying rationale for the rules. Finally, there has been a flurry of new contracts, new channels and new methods of bringing you your local team--at a price; sometimes a price paid whether or not you're interested.
The latest deal to hit my area is a new Laker/Time Warner Cable contract. Now if you live in official, Laker Nation territory, all regular season Laker games that are not nationally broadcast (that's about 53 out of 82, although reports vary) will be brought to you on Time Warner SportsNet. Not a Time Warner Cable customer? (There are about 3.1 million Angelenos who aren't.) No problem! Go to iwantmylakers.com, type in your zip code and Time Warner will show you which provider can bring you SportsNet (spoiler alert: in all zip codes you can get the channel from only one operator: Time Warner Cable). The site also allows you to email/tweet your provider directly to demand that they add the new channel for only $3.95 per month, per subscriber--yes, even you non-Laker watching subscribers will pay (at least some of) that fee. Compare that to the most expensive national channel, ESPN--rumored to command $4.69 per subscriber--and, depending on your persepective, it either looks like ESPN has paved the way for competition or some cable/satellite customers are being highjacked. Either way, the Pac-12 asking price of $0.90 suddenly looks like a bargain basement sale.
Later I'll take a closer look at some intriguing antitrust and regulatory implications of these new trends--and I would love to hear your comments--but for now, since I don't have Time Warner Cable, I guess I'll just go watch some Los Angeles professional football . . . oh . . ..
Wednesday, October 10, 2012
The political is the personal
One of the venerable "predictors" of a presidential election is the World Series winner--American League team means Republican president, National League team means Democratic president. It has held 16 out of 26 times (when I first learned about it in a freshman poli sci class in 1986, it had held 13 out of 20 times).
Now, I'm a Cubs fan, so my rooting and political interests generally align (not that anyone is worrying about the Cubs playing in the World Series). My wife, however, is an Orioles fan and I have been watching and rooting for them (and wearing a '70s-era bird hat) as a show of spousal support. But with the election fast-approaching, Obama's polls tanking, and Andrew Sullivan losing his mind, I am beginning to wonder if I should continue rooting for an AL team right now. What should I do?By the way, if you are looking for other sports-related predictors, try this: If the Redskins win their final home game before the election, the incumbent party retains the White House. This has held in 18 of the last 19 elections. The 'Skins play the Carolina Panthers on November 4.
Tuesday, October 02, 2012
What were they thinking? or Not so bad?
A colleague sent me this story from the Jewish Daily Forward: Amazon will no longer sell a 250-piece Jigsaw puzzle featuring a picture of Dachau Concentration Camp. The puzzle, marketed as appropriate for ages 8-and-up, met with objections from German legislators, as well as the head of the Dachau memorial.
I want to raise two points and I ask them honestly, not trying to be provocative.
1) I was struck by the comment that the head of the memorial wanted an investigation into whether prior sales of the puzzle were unlawful under German law, once again demonstrating how the U.S. departs from other countries on the subject of the freedom of speech. We can debate whether the puzzle is offensive or in bad tatse. But unlawful?
2) Is this really that offensive? The picture was taken by Robert Harding, a well-known international travel photograph who has had many photos made into puzzles. He also has taken a number of photos of Dachau. The picture itself is not disrespectful (at least reports don't suggest that it is); it is an image of a historical place where something awful happened, something that we should remember. I assume no one would object to anyone selling the photograph (although maybe I am wrong on that).
It seems to me that puzzles are simply one way of creating or presenting a picture or photograph. There is nothing wrong with having that picture be somber or meaningful or emotional, as long as the picture created is respectful or tasteful. We have puzzles of great works of art; why not also of photos of historically significant places or events. There were comments in the story about a "toy" being a "trivialization" of the events there. But this is not Dachau action figures or Dachau trading cards. Perhaps it is inappropriate for children and eight is too young as the target audience for the puzzle. But the call was for a total ban on (and suggestion of illegality of) all sales, not just a change in marketing.
Update: I am guesting at CoOp this month and I cross-posted this. One commenter over there suggested that anything that facilitates "never forget," even in the form of a jigsaw puzzle, serves a beneficial purpose. He also poses a great hypo: What would our reaction have been if Iran had banned those puzzles because they acknowledged Dachau as a special place, thus acknowledging the Holocaust? Would we be troubled by a combination of denial of free expression and denial of the Holocaust?
Monday, October 01, 2012
Media coverage of the Court
Something to watch for in the mainstream media coverage of the the new SCOTUS term this week: Mainstream reporters are going to be talkng about the end of last term, the leaks surrounding the ACA decision, and supposed conservative rage at the Chief. I expect there will be a lot of tea-leaf and body-language reading about whether they seem to be getting along, whether there are signs of leftover tension, and how hostility may affect the big cases this term.
Thursday, September 27, 2012
Over the summer, Dan and I wrote a short piece for The Atlantic arguing for the creation of "Fan Action Committees," through which fans could collect and give money to free agent players to lure them to join fans' favorite team. We currently are working, along with Michael McCann, on a longer version of the piece.
As even non sports fans probably know, this week's Monday Night Football game between Green Bay and Seattle ended on a touchdown on the final play of the game, in what most people outside Seattle believe was one of the worst calls, and worst-handled calls, in NFL history.* Several Green Bay players took to Twitter to express their dispelasure, notably offensive linement T.J. Lang, who tweeted ""Fine me and use the money to pay the regular refs." Shortly after that, a fan posted on the site Indiegogo (the page has been taken down, unfortunately) encouraging fans to send money to Lang to help him pay the fine that most believed was inevitable, as the NFL routinely fines players, coaches, and executives who criticize officiating. As it turned out, the league announced it would not impose fines for any comments related to Monday's game, no doubt a concession to the egregiousness of the mistake.
Still, this is our FAC idea in action--fans paying money as a show of fandom and of support for their favorite players. Although we primarily discussed the idea only in the context of free agency, this shows that fans may support players through money for a number of difference reasons in a number of different contexts. And it shows that fans instinctively understand this as a legitimate way to express support for their favorite players and teams.
See, scholarship can have a practical effect.
* Which, it turns out, will be the last call ever by the replacement referees, at least in this labor dispute.
Friday, September 21, 2012
The Simpsons "love" Mitt Romney
Take a quick look at this obviously fantastic election-related clip from "The Simpsons":
Romney's horse may have totally "choked in the Olympics," but at least Homer gets outsourced to China with "a steady job." Too bad "Stupid" Flanders is there next to him. Romney "has a house in your state" and the "government paid him taxes the last five years." But, it's ok. After all, Romney "did invent Obamacare."
Homer didn't have an ID when he arrived to vote, so the Rich Texan (a Republican stooge in most episodes) wanted to stop him from voting, that is, until he learned that Homer was white, middle aged, relatively uneducated, and gets his news from TV screens at gas stations. The Rich Texan, though, gives us the best line: "Stopping all Americans from voting is for the protection of all Americans."
Governor Romney may think 47% of us are "takers" and dependent on the government and not worth caring about, but although all that is great fodder for politics and the media, the real tragedies of this election are those brazen attempts to suppress voter turnout in traditionally Democratic locations and among traditional Democratic constituencies. In Ohio, the Republican state leadership tried to end early voting in just the Democratic counties; in Indiana, the state is taking away voting locations in urban areas and adding them in rural ones. On the other hand, states like New York and California are allowing people to register to vote online and making it easier for people to find their voting centers and get to them.
Homer was lucky. Too many voters may not be.
Wednesday, September 19, 2012
The One Year Anniversary of the End of "Don't Ask, Don't Tell"
Yesterday, I had the opportunity to attend the Servicemembers' Legal Defense Network's (SLDN) party on the Intrepid to celebrate the first anniversary of the repeal of "Don't Ask, Don't Tell" (DADT). Many of the usual suspects were there: Admiral Mike Mullen, the retired Chair of the Joint Chiefs of Staff who championed open service; Major Margaret Witt and Colonel Victor Fehrenbach, the officers who successfully challenged DADT in federal court; Eric Alva, the first American injured in the latest war in Iraq; Captain Stephen Snyder-Hill, the openly gay soldier who was booed at a Republican debate months ago and has since gotten married; Joseph Rocha, the repeal activist and young sailor who suffered abuse at the hands of his commander and colleagues in his elite explosive detection unit; City Council Speaker Christine Quinn;MSNBC anchor Thomas Roberts
Admiral Mullen spoke at the VIP reception, reminding us that gay service members are just as honorable and brave as their heterosexual peers, and was honored during the official program. The former congressman and veteran Patrick Murphy, the author of the Repeal Act in the House, worked the room and expressed genuine humility and satisfaction that he had the honor to play a role in ending such odious discrimination.
I spent the evening with some friends, catching up with colleagues at my old law firm (I am proud that Winston & StrawnLLP was a supporting sponsor of the event), and asking random people the following question: How does the repeal ofDADT impact progress on other gay rights issues like the marriage, employment discrimination, and DOMA? My sample was too small and too biased to constitute a reliable study (many people declined to respond, the attendees were overwhelmingly white and male), but it gives us an indication of the personal and political meaning of the end of DADT'swork.A member of the Marines said the end of DADT "meant the world to" him. His friend, a civilian who admitted he "never even considered spending one second in the military," nevertheless felt "proud" that his friend could finally be "an equal member of the Marines." A sailor in uniform said, "The end of DADT is the beginning of the end for everything else. If we can fight and die for our country, it's hard to justify discriminating against us." Another young man in our little circle disagreed, arguing that "there's a lot more to do, even in the military. We shouldn't get complacent." The two men started a civil discussion about it as I walked away.
Three women in uniform agreed that repeal was "the greatest moment of [their] lives." When I asked about discrimination faced by women, they demurred. But a veteran standing nearby followed up: "Sure, there's discrimination. There probably always be. But, you don't understand. DADT wasn't just any old discrimination. It forced you to lie about who you are. It compromised your honor and made you sick to your stomach. It told you that who you are is somehow wrong. How would you feel if someone told you that every hour of every day?" A well-dressed young man came over and said, "And, that's how gays feel in most of this country anyway. We can't marry, we can be fired for who we are."
Many civilian commentators repeated this theme and others expressed feelings of satisfaction; phrases like "the sky didn't fall" came up more than a few times. Most military commentators were simply happy. You could sense that a collective weight had been lifted from the room, that, for the first time, freedom is at hand and more is on the horizon. Men in uniform abounded, no longer worried about being identified as gay. Still, there was a hint of uncertainty: many refused to give their names, others shied away from the bright yellow name tag the indicated PRESS.
So, what, if anything, does this tell us? First, many people declined to answer the question, focusing instead on their happiness at the end of DADT and desire to celebrate a great victory. I can't blame them. Second, the end of DADT is not the end of the story. Some service members may be worried about harassment and more subtle discrimination, or they may not be the kind of men and women who want to be in the spotlight. I can understand that.
But, we cannot deny that the end of sexual orientation discrimination in the military can be persuasive in the fights to end other antigay discrimination. As one VIP attendee noted, it is hard to justify discrimination against people who are fighting and dying for their country with honor. The argument goes further: The conclusions Judge Phillips made in Log Cabin Republicans v. United States, the federal challenge to DADT that declared the entire law unconstitutional, and the statements from congressmen and senators are indicators of official judicial and legislative opinions on the merit of any kind of discrimination against gays. That is, we now have court records and legislative history to prove that discrimination on the basis of sexual orientation is pointless, ridiculous, and disgusting. The end of DADT will advance the cause of marriage recognition: openly gay service members will want to enjoy the right to marry, in uniform and on base; it will force us to confront the denial of federal benefits to the legally married spouses of gay service members; it will be incontrovertible proof that treating gays equally is not only not harmful but also part of our constitutional tradition.
Monday, September 10, 2012
Gee, that's big of you
"Upon reflection, he has his First Amendment rights," Del. Emmett C. Burns Jr., a Baltimore County Democrat, said in a telephone interview. "And I have my First Amendment rights. … Each of us has the right to speak our opinions. The football player and I have a right to speak our minds."
Glad we got that straight. Still, it is frightening that it took "reflection" for a public official to realize that "the football player" has First Amendment rights and the same right as him to speak his opinion. This does show that Hadar was onto something in her comment to the first post--Burns does regard football players as objects and not fully informed members of society.
Saturday, September 08, 2012
Activist athletes, tone-deaf politicians
Now here's a fun free-speech controversy.
On Thursday, the story got out that Emmett C. Burns, Jr., a member of the Maryland House of Delegates, had sent a letter to the principal owner of the Baltimore Ravens, expressing horror that a member of the Ravens, Brendan Ayanbadejo, had spoken in support of a pending ballot initiative that would establish marriage equality in Maryland. Burns asked the team to "take the necessary action . . . to inhibit such expressions from your employee and that he be ordered to cease and desist such injurious actions." Ayanbadejo responded on Twitter by saying "Football is just my job it's not who I am. I am an American before anything. And just like every American I have the right to speak!!!" (wow, maybe you can make good points in 140 characters). Vikings punter Chris Kluwe defended Ayanbadejo on Deadspin and has been getting some attention for his response, which mostly hits (in an inimitable style) the key points.
Burns obviously should not be taken seriously or given too much credit for having put any real thought or principle into the letter. What I find disturbing is the stated belief that, as a football player, Ayanbadejo has less of a right to speak out on public issues--that it is wrong for him to "try to sway public opinion one way or another" simply because he is a professional athlete. I haven't heard of Burns sending letters to other employers in the state (such as Johns Hopkins University, the largest employer in Maryland) asking them to tell their employees to concentrate on their jobs. Modern athletes are frequently criticized for not being political and not taking a stand on public issues (recall Michael Jordan's infamous comment that "Republicans buy shoes, too"). Now, when an athlete is willing to take a stand, a public official insists that he is engaging in "injurious behavior" and should be silenced.
We have not heard any response from Burns since the story became public and my guess is we won't. As an unknown and not influential state legislator, he no doubt is basking in the attention, even if it all makes him look like a complete fool.
Update: The New York Times has a short piece on the controversy, mentioning a number of current and former players who have come out in support of marriage equality and arguing that it reflects a shift in the NFL's political culture.
Thursday, August 30, 2012
Global Warming Yuks
President Obama promised to begin to slow the rise of the oceans . . .
Har har har!
. . . and heal the planet.
Ho ho ho!
MY promise is to help you and your family.
(Glub, glub, glub.)
Tuesday, August 21, 2012
I have argued before against political discourse demanding apologies from people who stay stupid things, as well as against people who say stupid things feeling the need to apologize for saying those stupid things. I would prefer that everyone own their words and we move on from there. Maybe I'm just too much a believer in the Kinsley Gaffe. Or maybe I'm too convinced that any apology, if subjected to scrutiny, will be utter, incomprehensible bullshit.
Exhibit 502 is GOP Senate Candidate Todd Akin. He has a new 30-second ad apologizing and asking for forgiveness (not sure from whom--voters? GOP funders? Mitt Romney?) over his recent comments about "legitimate rape" never leading to pregnancy because women's biology shuts down and prevents pregnancy if it really is rape. In the ad, Akin says he "used the wrong words in the wrong way" and "The fact is, rape can lead to pregnancy. The truth is, rape has many victims. ... The mistake I made was in the words I said, not in the heart I hold."
Let's break this out.
• "Wrong words in the wrong way"--Akin already clarified that by "legitimate rape" he meant "forcible rape," a common rhetorical move among anti-choice activists and representatives as a way to justify limiting rape exceptions for abortion restrictions. Not sure what that changes, other than returning to code that low-information voters won't recognize.
• "The fact is, rape can lead to pregnancy"--So why did he say otherwise? Can you really call what he said a misstatement? It's not like he was trying to explain some complex nuance of economics. If you say "X" as a hard scientific fact, it is hard to believe you really meant to say (or really believe) "Not X."
• "The mistake I made was in the words I said"--Again, what words did he mean to say?
I will give Akin credit for not blaming the media and Democrats for playing "gotcha" or for taking his comments out of context. He is owning that he said something he regrets. I wish he would own meaning what he said, because it seems pretty clear that he does.
Friday, August 17, 2012
Early tort reform
From Atul Gawande's piece on Big Med in the new New Yorker:
In the eighteenth century B.C., Hammurabi’s code instructed that a surgeon be paid ten shekels of silver every time he performed a procedure for a patrician—opening an abscess or treating a cataract with his bronze lancet. It also instructed that if the patient should die or lose an eye, the surgeon’s hands be cut off. Apparently, the Mesopotamian surgeons’ lobby got this results clause dropped.
Kind of makes sitting for a deposition seem tolerable.
Friday, August 10, 2012
Women's Sports and the Olympics
A few of thoughts and questions on a good morning to talk about women's sports and Title IX, in the wake of 1) yesterday's gold medal win by the U.S. women's soccer team before 80,000 at Wembley Stadium (and millions more live on some medium--are you listening NBC) and 2) the Second Circuit's decision earlier this week holding that Quinnipiac University violated Title IX by trying to eliminate the women's volleyball team.
First, there has been talk in the last few days about US women earning more medals, and more golds, than their male counterparts. Yesterday's wins in soccer and water polo add to that, as might a gold in today's women's volleyball final (the men were eliminated in the quarters).
Second, here is a nice essay by Slate/NPR's Stefan Fatsis about the women's soccer match and its "meaning," arguing that it actually has no deeper meaning other than that a bunch of women's teams played an exciting tournament that in every way (from playing hard to bitching about the refs) resembled a men's tournament, was watched by a lot of people, and can be evaluated on its own terms. He does consider briefly what the large audience for Olympic soccer tells us about the sustainability of a professional women's league (a point I addressed here). I do like his broader point--that women's sports is, slowly, becoming less of a cause and a simply a matter of good competition.Third, the Second Circuit decision received some attention because Quinnipiac had sought to make up the lost volleyball spaces by creating a competitive cheerleading team; this required the court to consider whether cheerleading is a sport, concluding it was not (although not for the reasons I would offer--it had to do with how well-established and well-organized something was as a competitive event, meaning cheer could become a sport some day).
A question: Would a more purposivist take on Title IX uniformly favor opportunities in volleyball or soccer over opportunities in cheer, given the statute's goal of creating new opportunities for women in sports? Cheerleading predates Title IX by many years, obviously, and it seems to me it would undermine the statute if schools could satisfy their statutory obligations by increasing the number of opportunities for women/girls to do what they have been doing all along rather than providing genuinely new athletic opportunities.
Saturday, August 04, 2012
Defining sport: Intrinsic and Instrumental (not utilitarian) Values
I have written before about defining sport and distinguishing sport from other athletic competitions. My preferred definition of sport includes four elements: 1) Large motor skills; 2) Simple machines; 3) Objective scoring (distinct from subjective judging); and 4) Competition. Of these, # 3 has proven to be most difficult, controversial, and contested, as the comments on this post show. Watching the Olympics (count me among the many who detest the NBC Primetime productions) has lead me to a different way of thinking about # 3, using a line familiar to legal scholarship--the difference between intinsic and utilitarian instrumental values. Hear me out.
Everything involves the performance of particular skills (dives, flips, swimming strokes, running strides, throwing, putting the shot, whatever), with the hope of performing those skills as correctly as possible. The difference is why the athlete performs those skills.
Sometimes they are done for utilitarian instrumental purposes--to enable the athlete to swim or run faster or to put the shot further or to put the ball in the basket. And the better or more perfectly the athlete performs those skills, the more likely he is to do well in the competition. But ultimate evaluation is not on the skills themselves and correct performance is not essential to success. A shot-putter still can have a good throw even if his performance on that throw is not technically correct; a swimmer still might swim fast even if his stroke is off; a jump shot in basketball may go in even if the form on the shot is off. Each of those scores is worth the same as one done with perfect form. Other times, those skills are performed for their intrinsic value and utlimate evaluation is on the correctness and form of the skill itself. An Inward 2 1/2 that is not done correctly will score less than an Inward 2 1/2 done correctly; a backflip not done correctly will score less than a backflip done correctly.
This is our new third element. Sport is utilitarian instrumental; skills are performed toward some other end and outcomes are determined by the result of the skill rather than by evaluating the skill itself. It is not sport if it is intrinsic; skills are performed for their own sake and outcomes are determined by evaluating the skill itself. We no longer care about objective or subjective evaluation, about scoring or judging. Instead, we focus only on the thing being evaluated to determine outcome--the skill itself (not sport) or the results of the skill (sport).
Combined with elements 1, 2, and 4, above, we may have a winner.
I accept Patrick's friendly amendment in the comments and have changed "utilitarian" to "instrumental."
I am trying to figure out whether this new element solves the conundrum of boxing. Boxers are throwing punches to score points, although the vagaries of judging sometimes hint that judges are evaluating the punches themselves.
Thursday, August 02, 2012
Minority religions and the Olympics
My colleague Tom Baker linked me to this story on the Jews, Muslims, Sikhs, and other minority religious groups taking special rooting interest and pride in the Olympic success of their co-religionists, even if they are competing for other countries. The author seems surprised by this, although I am not sure why. American Jews always have been very conscious of the existence and success of Jewish-American as well as Israeli athletes (while never being afraid to recycle the old joke "Do you have some light reading? Here's a pamphlet of great Jewish athletes"). What is new here, if anything, is the way that other religious groups in the U.S. are catching on.
For what it's worth, my sense with Jews and Jewish athletes is that it always has been more ethnic/cultural than religious. People knew gymnast Aly Raisman is Jewish because of her name and her floor routine done to "Hava Nagila." The issue was never whether she was particularly observant (although her rabbi is quoted in the story, so we somewhat know), but that she identified as Jewish. That has always been enough.
Compelling patients to listen
On the heels of wave of state laws requiring doctors to provide and narrate ultrasounds and spout state-mandated speeches about medically dubious consequences of abortion comes the new policy regarding use and distribution of baby formula in New York City hospitals, part of the City's "Latch On" campaign to promote breast feeding. The new regs require hospitals to keep formula locked away and to sign it out to patients who take it, prohibit hospitals from giving away free samples to departing parents, and, most problematically, give parents who want formula a mandatory talk about why breastfeeding is best (even if not to come right out and say, as the doctor did here, that "forumula is evil").
The last prong is problematic, for the same reasons that the abortion speeches are problematic. It forces a one-sided message down the throat of a female (as always) patient, in a vulnerable position, presumed not to know any better or to be able to make decisions. Of course, we are not hearing any First Amendment complaints because the compelled speakers--the medical professionals--are on board with giving these speeches about nursing, in contrast to their views about ultrasounds and the abortion-suicide link.
The answer lies in a First Amendment liberty of the patient not to be compelled to listen to government-ordered messages, at least within certain conditions, such as the face-to-face intimacy of the doctor-patient relationship. I have not thought through the details, limits, or implications of this liberty (so any help is appreciated). But it seems to me that it partakes of some aspects of the captive audience and some aspects of Paul's institutional focus on how the medical profession should function and should be allowed to function. There also is a problem of one-sidedness; while breastfeeding may be the better option, the alternative is not affirmatively harmful to a child and should not be presented to patients as such. This liberty recognizes that there is a second party to doctor-patient conversations whose First Amendment interests should not be disregarded, particularly in a way that assumes lack of agency. Again, I welcome suggestions on how this liberty might take shape.
Recognizing this liberty still leaves it to be balanced against the government's interests in promoting public health positions. But it seems that there will be ways for government to gets its message (whether about abortion or the benefits of breast milk) across without compelling participation in a one-sided conversation.On a personal note, I come to this question having made a deliberate decision with my wife, with the full support of our pediatrician, to give our daughter formula, for a variety of reasons. I am happy to say she shows no deficit in any of the areas that breast milk is supposed to enhance. I also can say that hearing a speech suggesting that we were hurting her by our decision would have been incredibly harmful at the time. Of course, for every story such as ours there is a story going in the other direction. But maybe that means a one-size-fits-all speech is not the appropriate public-health solution.
Wednesday, July 18, 2012
Two Perspectives on "You Didn't Build That"
Quintessentially American: Suing the Lethal Presidency
I've been a bit frothy over at FB and here lately about the secret source or explanation of law that ostensibly authorizes Obama to kill citizens abroad without any familiar signals of due process. Charlie Savage has some news about new lawsuits that pick up on the related themes advanced in the important reportage/polemic by Tom Junod in Esquire. And along the same vein, via SSRN today, I came across a new student note from Vandy LR about the due process issues facing the killing of citizens without notice or hearing. I haven't read it yet, but you'll dimly recall, perhaps, that I raised similar concerns the other day, to the effect that the knock list ought, in most cases not involving dire imminence or immediacy, not be operationalized until an American citizen on foreign ground's been given adequate notice and a chance to surrender and have a hearing of some sort with counsel. If the person turns down the opportunity, then the strike might be permissible under various conditions establishing some form of treason or calamitous danger.
In any event, the Junod piece and his Esquire blog posts, which are just outstanding, raise great questions for our fellow law profs. It might be unfair to ask David Barron and Marty Lederman by name what they think about this, since they purportedly had a hand in this policy's development and justification (I think I read that somewhere but if I'm wrong, let me know and I'll fix it). But anyone, please: what's the justification for keeping secret the memos detailing the President's authority to execute a knock list that provides no notice or hearing for citizens? And if Al-Awlaki's son was really just collateral damage, then what's the danger to saying so afterward, as Junod recommends? At the very least: let us have the chance to be persuaded to this aggressive point of view. At this point, I can't see how one can (on legal grounds) disagree with the ACLU's Jameel Jaffer (also a friend from law school), who explained to Junod why the ACLU is representing the American family of Al-Awlaki in the damages suit against Obama's officials:
"The main reason we're bringing the case," Jaffer continued, "is to get some kind of accountability, in the most basic sense of the word. The government has killed three of its citizens and we think the government has to account for its actions, first to acknowledge, then to explain. We believe that if you accept that the government has the authority to kill its own citizens without acknowledging its actions, you have set up an authority that will one day be abused. Once you create this power, this power will sit around available to every single future president.
That's the long game I'm most worried about. It's somewhat easy to think Obama won't grossly abuse this power from my perspective. (It's hard to think the power wasn't misused vis-a-vis the 16 year old, however.) But what if Sarah Palin were freakin' President? Also, in case you missed it, Junod reported on an interesting conversation he had recently with an unnamed official intimate with the counter-terrorism procedures. According to that conversation, the justification for silence had to do with preserving diplomatic and security cooperation with other nations--the requirement of non-acknowledgment. If that's the operating rationale, we need to know more about it so it can be scrutinized. Ok, daily froth is over, for now.
Tuesday, July 17, 2012
Is the Availability of the Insanity Defense Constitutionally Required?
Yes, or at least that's what an amicus brief I signed argues in connection with whether cert in the Delling case should be granted. (And yes, my signature signals that the brief meets my Fallon-inspired standards for amicus participation.)
The brief argues to the Supreme Court that the very few (four) states without an insanity defense are in violation of the Constitution and that the problem is not cured by merely allowing challenges to the mens rea elements that are predicated on mental illness. The amicus brief warrants two short observations.
First, it's a very diverse (and present company excluded) distinguished group of legal academics who have signed on to it: from Slobogin the leading schmancy anti-retributivist (as well as a leading scholar on the issue of mental health and criminal law) to, well, a bunch of schmancy retributivists...
So, in addition to the brief's arguments, I hope the fact of who has agreed to sign this brief helps the cert petition generate the sustained attention from the Court that the issue warrants.
Second, the brief advances the claim under the due process clause, but I am told by Stephen Morse, the principal academic author of the brief, that the Eighth Amendment argument is also being advanced by Jeffrey Fisher and his team from Stanford's appellate clinic. I was glad to hear this since I think the Eighth Amendment is an equally clean doctrinal device to ensure that punishments are not visited upon those who were insane at the time of their crimes. For those two of you interested, I've given some reflection to the issue of the Eighth Amendment and the punishment of the presently incompetent. To my mind, much of what I wrote there -- in the Panetti v. Quarterman context -- that retribution cannot properly be inflicted on the presently incompetent -- applies squarely to situations in which someone was incompetent at the time of the crime's commission.
Monday, July 16, 2012
Public memorials and Penn State
Legal historian Al Brophy of UNC and the Faculty Lounge writes some interesting stuff on public memorials and monuments, particularly in the South. This has become the new locus of discussion at Penn State, as the trustees and others try to figure out what to do with the Paterno iconography that dots Penn State and State College. These include a statue, the family name on the university library, and a famous mural in town (the mural artist recently removed the halo from over Paterno's head).
The current sentiment on the Board of Trustees is to leave the statue, at least for now and pending a broader public discussion. I was struck by the comment of one trustee, who insisted "The statue represents the good that Joe did. It doesn't represent the bad that he did." Can they have it both ways like that? Can a monument to someone with a divided legacy (as Paterno now has) simply remain in place, pretending there was no bad? Do the trustees at least have to acknowledge in the public conversation that they are determining that the good Paterno did outweighs the bad and thus warrants keeping the statute (a reasonable position)? I actually don't particularly care what they do with the statue; I'm more interested in how the conversation about the statue honestly addresses that Paterno genuinely did something wrong and the statute represents that part of him as much as it represents everything else.
I am far more disturbed by the announcement that they are going to renovate the locker rooms and shower areas where some of Sandusky's assaults took place. While this has been described as an attempt to "erase the legacy of Sandusky's crimes," it also strikes me as an actual and symbolic attempt to erase the past in a way that covers the university's role in those crimes. I am not suggesting they have to turn the shower into a shrine or a museum. But their first response is to whitewash the crime scene and, in some sense, the evidence of their collective misdeeds. And to also get a shiny new athletics facility out of it, when the special treatment of athletics is a major element of this entire mess, is especially offensive.
[Update, July 18: Brophy, who happens to be in Pennsylvania, comments]
Boards of Trustees Irony
Penn State's Board of Trustees took a minor beating in the Freeh Report last week, criticized for failing to exercise oversight and to have in place procedures for gathering information from university officials, especially the President and General Counsel. This was tempered somewhat by the much sharper criticism of former President Graham Spanier for failing to keep the Board informed; Spanier is the real bad guy, so the Board's misdeeds are somewhat mitigated. The point is that Board is the potential white knight--had the Board known, it would have done s0mething at least in 2001 and perhaps in 1998 and many of these problems (and perhaps the further assaults of children) would have been avoided. In other words, the narrative is we needed more active involvement by the Board of Trustees, which should have done more to check the President and to run the university.
Wait. Wasn't the narrative of the University of Virginia mess (less than a month ago) that the Board of Visitors was meddling and interfering with the school's academic mission and that they should leave Teresa Sullivan alone to run the school and not impose their anti-intellectual vision on the university?
Sunday, July 15, 2012
Follow up on Pretrial Release Conditions
I've rec'd some interesting emails in response to the oped/post from yesterday on abusive pretrial release conditions.
Bryan Dearinger wrote to let me know of a paper he wrote about how Congress, in the context of sex offenders, has stripped away the judicial discretion to fashion appropriate release conditions. The paper notes that "a particular, undesignated provision of the Amendments requires that every defendant charged with one of an enumerated list of offenses be subject to a prescribed set of pretrial release conditions, even if the district court would find those conditions unwarranted during a bail hearing." The paper is forthcoming. I haven't read it yet and in truth I didn't know about these provisions until Bryan mentioned them to me. I have to say, I'm intrigued by but not persuaded yet by Congress' approach here. As a general matter, I like judges to be given guideposts and constraints, but I wouldn't say that a mandatory imposition of legislatively concocted conditions is the smartest approach unless there were various procedural safeguards in place along with some kind of check in place to ensure that the government's intrusions were minimally reasonable. Anyway, I look forward to reading Bryan's paper.
I also received a couple emails from judges who identified with those folks we criticized, arguing in particular that addressing drug addictions or imposing curfews or alcohol consumption was an important component of ensuring public safety. FWIW, I can't speak for Eric off the cuff here, but my quick sense is that the cases mentioned by the judges I heard from are *not* related to our critique. We weren't saying such restrictions on alcohol or curfew or drug treatmen were never reasonably imposed. Rather we were concerned that they sometimes aren't related to the crimes or the offenders but were still imposed.
To use one example that is in the news: George Zimmerman. His claim of self-defense in the killing of Travyon Martin may be wrong or correct. But his shooting of Martin had little to do with alcohol abuse and there's no reason to think that Zimmerman is specifically more likely to commit more crimes if he has access to any alcohol or if he's able to eat dinner at a restaurant or shop for groceries after 6pm. The imposition of a curfew or alcohol restriction on him is entirely unnecessary in terms of how it facilitates substantial reduction in flight risk or crime prevention. Indeed Judge Lester's court order specifically states that he doesn't think Zimmerman's a risk to public safety. So that leaves flight risk, and there's no connection to flight risks from curfews or a glass of hooch. (I suppose if the thinking is that lots of alcohol might lead GZ to think it's a good idea to flea, but then Judge Lester should simply prohibit more than 2 drinks within X hours in the day.)
Obviously, if a defendant has a history of drug- or alcohol-fueled or related crimes, then restricting his access to such substances is more easily explained in terms of crime prevention or risk to public safety. I wouldn't have a problem with ensuring some kind of response to drugs or alcohol (treatment, testing, etc) in those contexts because of the putatively tight causal connection between the substance abuse and the various resulting crimes. But in Zimmerman's case, there was no established tie b/w alcohol abuse or a penchant for mayhem at night that would have required such restrictions. As mentioned above, the judge stipulated that Zimmerman wasn't a risk to public safety.
By the way, Zimmerman's counsel has now asked to have Judge Lester be disqualified from the case. The brief is here, and to my mind, has substantial weight. Curious for others' reactions on this. I doubt O'Mara, GZ's lawyer, would have asked to disqualify Lester unless he thought there was strong grounds to do so, since it's a pretty high-risk tactic otherwise.
Saturday, July 14, 2012
Not yet tried, and sentenced to Red Lobster
Eric Miller (SLU) and I have an oped in today's NYT on the quiet scandal of abusive pretrial release conditions. I've reprinted it after the jump. This is a piece that grew out of a some discussion here on Prawfs, and the next thing you know, well, acorns and oak trees and all that. My special thanks to Eric for being such an excellent co-author. (And while I have SLU on the mind, note that Anders Walker, Eric's colleague, has started a new blog on faculty productivity. It's called Faculty Flow.)
Btw, we tried to insert hyperlinks to your scholarship (really, all of you!), but the Times has a rule about capping hyperlinks. Odd. (And my sense is that this rule is actually, um, inconsistently applied. In any event, sorry about that.)
IN May, a federal judge ordered the pretrial release of an alleged robber on the condition that he read and write book reports for 90 minutes daily. Earlier this year, a trial judge directed a domestic violence defendant, again as a condition of pretrial release, to buy his wife flowers and take her out for bowling and supper at Red Lobster. And just last week, in Florida, a county judge’s new bail order forbade George Zimmerman, who claims self-defense in the death of Trayvon Martin, to drink alcohol or go out after 6 p.m.
Before anyone is proven guilty in a court of law, the Constitution extends the presumption of innocence. That presumption is at odds with the kinds of pretrial conditions described above.
To be sure, the presumption of innocence is not a guarantee against pretrial detention or other restrictions on liberty. As the Supreme Court has acknowledged, a defendant’s pretrial freedom can, upon a hearing, be limited in various ways when it comes to addressing substantial and reasonable fears having to do with flight risk or danger posed to the community (or danger to the judicial process itself, like in cases of witness tampering). So we don’t dispute that defendants can be, say, monitored by tracking devices while they are released.
But flight risk and crime prevention don’t justify bail conditions requiring book reports or bowling, which have far more to do with punishments or moral education techniques. While such sanctions could be permitted after conviction, they are flat-out unjustified before adjudication.
The more peculiar the conditions, the more likely they are to garner media attention and public scrutiny. Indeed, an appellate court overturned the book reports decision last month (though on the grounds that the defendant should not have been released at all). Unfortunately, the vast majority of these improper release orders fly under the radar. Indeed, the use of bail conditions as a means of engaging in low-level punishment and rehabilitation is more widespread than is generally understood. Drug testing, desisting from alcohol, as well as attendance at rehabilitation programs and mandatory job training programs have become all-too-familiar requirements of pretrial release, even for cases, like Mr. Zimmerman’s, that are unrelated to substance abuse.
This judicial paternalism persists in part because state and municipal judges, who handle the overwhelming number of criminal cases, face less public scrutiny than federal judges. But a bigger problem is that there is no widely established right to counsel at the bail stage. Accordingly, the judge gets to interact directly with the defendant, without the interference of “pesky” lawyers. Even when defense lawyers are present, they don’t make a stink over these improper conditions to avoid the risk of having bail for their clients denied altogether. They figure that at least the defendants will get out of jail, rather than having to cool their heels inside.
It’s understandable for judges to want to attack the social problems they see in the criminal justice system. The problem — besides the obvious issue of assigning punishments to people who might not even be convicted of crimes — is that they are thinking up untested responses on a case-by-case basis. This leads to disparities and fragmentation of penal policy even within jurisdictions; increased scrutiny of suspects at a stage when they should be free to build their defense against the government; and an imposition of the values of the temperance movement on the criminally accused (since even lawful and moderate consumption of alcohol is frequently prohibited). Perhaps most disconcerting is how easy it becomes for regular people to violate these unreasonable bail conditions, which leads to unnecessary arrests and even more overcrowded prisons.
Pretrial release raises complicated legal and policy issues in every case. Still, our core concern is that many judicial release orders exhibit confusion about or disregard for the distinction between pretrial release and post-conviction punishment. Judges determining pretrial release are not authorized to act as social workers or agents of public retribution. They need to stop pretending otherwise.
Wednesday, July 11, 2012
Armstrong tries again
It only took a day from getting slapped down by a federal district judge to refile his lawsuit against USADA and its CEO, again with claims for tortious interference, common law due process, and Fifth Amendment Due Process. The new pleading is 25 pages and 82 numbered paragraphs--truly short and plain. This suggests that the original complaint was 55 pages and about 180 paragraphs of snark and vitriol.
I want to break down the Fifth Amendment claim because I do not believe it can succeed. I have been writing about state (and federal) action for the past few days, so this story links well to my current work. Here goes.First, to the extent Armstrong is seeking money damages for the Fifth Amendment violations, this is a Bivens action. But the Supreme Court has in the past decade made clear that neither a private entity nor its employee can be subject to Bivens liability, at least where state remedies are available (as there are here--Armstrong is pursuing them in the same case). Now both Malesko and Minneci were Eighth Amendment claims involving privatized prisons, so maybe this is a different circumstance. But there is a good argument that Bivens now runs only against government officers and joint private-federal participation does not create constitutional liability against private persons as it does under § 1983.
Second, even if a Bivens action is possible, I doubt it works here. The complaint alleges four sets of facts aimed at showing joint private-federal participation; most of them do not work. I cannot make this case fit into any of the recognized tests for action under color of law.
1) Congress was "instrumental" in creating USADA and USADA receives 2/3 of its funding from Congress. Nope. Receipt of government funds, even in large amounts, does not make a private entity a government actor. Think of how much money private hospitals get from Medicare and Medicaid.
2) "Defendants exercise powers traditionally exclusively reserved to the State." Nope. Regulating sports is not a traditional government function, nor one it alone has historically done.
3) USADA conducted its investigation of Armstrong in conjunction with several federal agencies, including DOJ, the FBI, and the FDA. The USADA's case is based on the evidence jointly gathered. This one is closer, because this type of joint operation can be sufficient to make a private actor public. The problem for Armstrong is that the connection must be between the government and the challenged conduct. Armstrong does not challenge the joint investigation itself; he is challenging USADA instituting internal procedures against him for doping. But the federal government plays no role in those procedures or in the establishment of the rules that USADA follows. That the adjuducation relies on government-gathered evidence is not sufficient.
4) USADA has been delegated authority to regulate and monitor drug-testing, exercising an express power grant of Congress and carrying out federal treaty obligations. Again, closer, but I am not convinced. Mere delegation of power or authorization to act in some area, even to the point of having exclusive power, is not sufficient. Nor is the simple fact that the private entity is doing something the has public import. That USADA is ensuring that the U.S. complies with treaty obligation point is a nice fact, but I do not believe it is enough.
I leave discussion of the tort, contract, and arbitrability issues to smarter hands. In the meantime, is there something else I am missing?
Tuesday, July 10, 2012
Lance Armstrong gets sua sponte Twiqbaled
Yesterday morning, Lance Armstrong filed a lawsuit and motion for a TRO in federal court in Texas against the United States Anti-Doping Agency and its CEO, seeking to halt USADA's doping investigation. The lawsuit claimed tortious interference with contract and violation of Fifth Amendment due process. The lengthy (80 pages, 261 paragraphs), rhetorically loaded complaint derides USADA's "kangaroo court" and its belief that it is "above the United States Constitution, above the law, above court review, free from supervision from any person or organization, and even above its own rules." And those are the mild parts.
Upon initial review, I questioned the Fifth Amendment claim because I doubt USADA or its CEO acts under color of federal law (assuming the concept even still exists for private entities after Minneci). It certainly is not a federal actor based on the facts contained in the pleading.
In any event, we may have to wait a few days to find out. Yesterday afternoon, District Judge Sam Sparks sua sponte dismissed the complaint without prejudice. Judge Sparks said the complaint is "far from short" and the claims not "plain," buried in "excessive" rhetoric; the court was "not inclined to indulge Armstrong's desire for publicity, self-aggrandizement, or vilification of Defendants." He noted that "[c]ontrary to Armstrong's apparent belief, pleadings filed in the United States District Courts are not press releases, internet blogs, or pieces of investigative journalism. All parties, and their lawyers, are expected to comply with the rules of this Court, and face potential sanctions if they do not." A complaint, the court said, requires facts, not a "lengthy and bitter polemic against the named defendants."
This is an extraordinary order. I have written before about pleading as press release (Elizabeth Thornburg coined the term). The district court in the Duke lacrosse lawsuits took the plaintiffs to task for ther overly long and overly overheated complaints, but that was in the course of ruling on 12(b)(6) motions and was done largely in passing and as a reminder to the lawyers going forward. I have never seen a court preemptively and unilaterally reject a complaint for overdoing the rhetoric. Especially since, while Armstrong unquestionably was speaking to the sports media and the world, I am not sure the rhetoric here is so much more excessive than in many other pleadings I have seen.
I am not a fan of this sort of over-the-top pleading, but it is becoming more common. So while I am surprised by the order, I am glad to see a judge halting these practices. Perhaps this is judicial order as press release. Judge Sparks knows the world is watching this lawsuit and he is proactively seizing control over the case and making clear to the parties and attorneys that they litigate for the court, not for the press.
One final question: Did Judge Sparks go too easy on Armstrong's lawyers? He never even hints at sanctions, although we can see this dismissal as functionally equivalent to a non-monetary sanction imposed sua sponte. But the admonitions about following the rules and not using litigation for PR purposes seemed primarily directed at Armstrong, even though his lawyers (and he is represented by Patton Boggs and Williams and Connolly) obviously wrote that paper.