Saturday, March 08, 2014
Gambling v. PEDs and the Baseball Hall of Fame
Warning: Another sports-and-law post, this focusing on the internal rules of baseball as a business
Kostya Kennedy has a new book on Pete Rose, titled Pete Rose: An American Dilemma, excerpted in this week's Sports Illustrated cover story. Kennedy states that Rose's Hall-of-Fame worthiness has come under "renewed discussion" as players linked to PED use (Mark McGwire, Barry Bonds, Roger Clemens) come up for Hall consideration. TThe excerpt (and presumably the book) present the arguments that Rose' gambling is a lesser crime than PED use, so he should be a more worthy candidate for the Hall than a juicer. Will Leitch at Sports on Earth responds and basically blows up the argument, by pointing out the serious problems that gambling creates and the moral panic that surrounds PEDs.
But there is a different, more legalistic reason Kennedy's article gets Rose's Hall eligibility wrong, one I discussed eight years ago, just as the major PED suspects were beginning to retire. Rose is ineligible for the Hall because he voluntarily accepted a lifetime ban from baseball and placement on baseball's permanently ineligible list. Under Rule 3E of the BBWAA voting rules, "Any player on Baseball's ineligible list shall not be an eligible candidate." And that ends the inquiry. It actually does not matter whether Rose bet on baseball or on the Reds (he admitted gambling on baseball, although never on games involving his team)--he accepted the ban and thus the collateral consequence of the ban. On the other hand, no suspected steroid user has ever been assessed a lifetime ban or placed on the permanently ineligible list, thus none is subject to Rule 3E. Steroid users are being kept out of the Hall by the principled insistence (or priggish obstinance, depending on your perspective) of BBWAA members.
Of course, we might reconsider this ordering, which would require reconsideration of the comparative evil of steroid use and gambling. Under present rules, a person is banned for life for a third positive test or finding of PED use, but banned for life on one finding of having bet on games involving his team. Perhaps that should be flipped, or at least treated on equal footing. (On this, I agree with Leitch that we have the order right, that gambling is a far greater sin than taking drugs designed to help you play better and for longer). But none of that changes anything for Rose given the current rules and the rules under which he operated.
Friday, March 07, 2014
The problem with PowerPoint
Thursday, March 06, 2014
More on the Civil Rights Division
Dahlia Lithwick basically gets it right: The "notion that the head of the Justice Department’s Civil Rights Division should have ever fought for civil rights has now become disqualifying."
But this is not anything new--Senate Republicans have been doing this to Democratic nominees to the Civil Rights Division for 20 years. As Bill Clinton's first nominee for the position, Lani Guinier famously faced strong Republican opposition based largely on her academic writings; Clinton withdrew the nomination when it became clear she could not be confirmed. And Bill Lan Lee served Clinton's entire second term without Senate confirmation--2+ years as acting head and one year as a recess appointee. Senate Republicans explicitly opposed Lee because he was and would be "activist" on civil rights. (And I would add that using that word to describe a lawyer and an executive-branch official reveals just how utterly meaningless it is).
Wednesday, March 05, 2014
More Honest Bob Casey
[But any attorney who seeks to help guarantee that right, in a case in which I believe the crime is sufficiently heinous, becomes per se unqualified for high public office. So, hey attorneys, feel free to help guarantee that right to citizens.]
Monday, March 03, 2014
In Why We Need More Judicial Activism (the subject of a great Green Bag micro-symposium), Suzanna Sherry identified the eight universally condemned Supreme Court decisions (Spoiler Alert: Bradwell v. Illinois, Minor v. Happersett, Plessy, Abrams, Buck v. Bell, Gobitis, and Hirabayashi and Korematsu). The unifying theme is that all have been, if not overruled, certainly discredited, such that none remains good law.
But are there cases that remain genuinely good law that are similarly disliked by both sides of political and constitutional debates and that both sides would like to see overruled? Two come to mind.
One is DeShaney. Liberals would like to see the Fourteenth Amendment impose affirmative obligations on government to protect the public; conservatives see affirmative government obligations to protect the public as a possible route to prohibiting abortion (my thoughts here were triggered by Steve's post about North Dakota's personhood amendment, which, as I said in the comments there, arguably overrules DeShaney at the state level and imposes some sort of affirmative obligations on government). A second, I think, is Slaughterhouse. Both sides would like a textually sounder basis for incorporation through Privileges of Immunities (although Due Process incorporation is so well-established at this point that the issue is more formalist). And since that was an economic liberty case, conservatives would like to see it come out differently.
What other cases might fit the bill? And am I wrong about these?
An Empirical Analysis of the Infield Fly Rule
The third piece in my "Infield Fly Rule Trilogy," titled An Empirical Analysis of the Infield Fly Rule, is up on SSRN. As the title suggests, I (with the help of seven FIU students, who all seemed to enjoy themselves) conducted an empirical study of the past four MLB seasons to find out the frequency of Infield Fly calls and the effectiveness of the rule in avoiding dramatically inequitable cost-benefit exchanges.Legal scholars have written extensively about baseball’s Infield Fly Rule -- its history and logic, its use as legal metaphor, and its cost-benefit policy rationales. This paper now conducts the first empirical analysis of the rule, exploring whether the rule’s legal and policy justifications are statistically supported. Based on a review of every fly ball caught by an infielder in the relevant game situation in Major League Baseball from 2010-2013, this paper measures the frequency and location of Infield Fly calls and the effect the rule has on individual games, all to determine whether the feared cost-benefit disparities that motivate the rule would, in fact, result absent the rule. Ultimately, the merits of the Infield Fly Rule cannot be measured empirically, at least not without resort to some ex ante value judgments; the normative conclusion one draws about these data depends on where one starts -- a supporter of the rule and a skeptic both will find confirmation in the information gathered in this paper. Nevertheless, the numbers shed specific and interesting light on the realities of baseball’s most unique and famous (or infamous) play.
Wednesday, February 26, 2014
The other side of corporate speech
There are reports that the NFL is monitoring Arizona's SB 1062, which gives private businesses the right to refuse service to anyone if providing service would violate their religious beliefs. Phoenix is scheduled to host next year's Super Bowl, but the league stated that such a bill would be inconsistent with the league's (stated and purported) policies of tolerance, inclusiveness, and non-discrimination for all sorts of reasons, including sexual orientation. The fear among Arizona business and political leaders now is that the NFL may move the game if this bill becomes law (it has passed both houses and is waiting the governor's signature). And there is precedent for this--the league moved the 1993 Super Bowl from Arizona (theme warning!) when it failed to recognize Martin Luther King Day as a state holiday.
But isn't this corporate speech? Isn't the NFL, a powerful entity, engaging in First Amendment expressive activities by using its economic influence to affect public policy? Isn't this exactly what critics of the "corporations have First Amendment rights" meme object to? (The NFL is not a corporation but an unincorporated association of associations, but I doubt that matters much for most arguments). Liberals and progressives and supporters of LGBT rights--the very groups most likely to be criticsl of Citizens United, are now quite pleased with, and supportive of, the NFL's stance and the (hoped-for) effect it could have on this horrific piece of public policy. But other than the valence of the political position at issue, how is this different than a large company trying to affect environmental policy or elections (which, in turn, will define policy)?
This gets at what I always have regarded as an inconsistency in many anti-corporate-speech arguments. We like businesses that are socially conscious and that work towards the public good. But that must mean they have the same right to define (what they regard as) the public good as anyone else. It cannot simply be that entity speech is ok when it promotes LGBT rights, but not ok when it promotes something we do not support.
Update: Gov. Jan Brewer vetoed the bill.
Tuesday, February 25, 2014
More personal jurisdiction from SCOTUS
SCOTUS today decided Walden v. Fiore, unanimously (per Justice Thomas) holding that a district court in Nevada lacked personal jurisdiction in a Bivens action against a Georgia police officer who wrongfully seized money from plaintiffs at the Atlanta airport. Adam Steinman a the Civ Pro/Fed Courts blog has some excerpts.
No major new doctirnal ground broken. It does reframe the effects test to focus on the defendant's contacts with the forum, not with the plaintiff, although recognizing that they may be intertwined. But injury in the forum, even if the defendant knew the injury would be suffered there (arguably the case here), is not sufficient absent some conduct by the defendant that implicated the forum (physical entry, phone calls, affect on reputation or property there, etc.). Otherwise, the plaintiff otherwise controls where she lives and where she feels the harm, a unilateral act of the plaintiff that is insufficient to establish jurisdiction--the plaintiffs here were harmed in Nevada because they chose to live in Nevada when they wanted their money. At best, an injury felt in a state can show that the defendant formed a contact with that state.
The Court drops a footnote (n.9 on p. 13) that it once again is not deciding anything about internet-based contacts. The targeting that the opinion seems to demand could be read to mean that broad enough wrongdoing (say, a fraud scam over the internet) will not create jurisdiction in the victim's home, because the defendant targeted the world, not just that plaintiff's state.
Like Daimler v. Bauman, decided last month, this is another good teaching case, in that it simplifies things and discusses the doctrine as a whole. It shows clearly that the effects test is not a unique separate test (as some lower courts had suggested), but another way that a defendant creates minimum contacts. So my syllabus just got revamped (again) when I teach P/J in April--Daimler instead of Good Year or Helicol and Walden instead of Calder and Clemens v. McNamee (a 5th Circuit decision).
Sport, non-sport, and judging
I have wanted to use Jordy's posts about judging and reputation to jump into other things, especially as the posts pertain to activities such as figure skating. And I want to tie this to my ongoing interest in defining what constitutes sport, for which I believe I have landed on a workable definition that focuses on whether a contest is decided by evaluating the intrinsic quality of an athletic skill (not sport) or the instrumental result of the performance of that skill (sport). The attempt to understandin judging may introduce some consequences into the distinction.
Sport is governed by what Mitchell Berman called the “competitive desideratum,” the desire that the “outcome of athletic contests . . . depend (insofar as possible) upon competitors’ relative excellence in executing the particular athletic virtues that the sport is centrally designed to showcase, develop, and reward.” The outcome of a sporting event should not be decided by anyone other than the players themselves. And it particularly should not be decided by an umpire or referee making pronouncements about the game's rules.. Of course, that is not entirely possible, since sports are governed by rules that must be applied and enforced by someone, with enforcement certainly influencing the outcome.The answer, I began arguing here, is that sports rules are analogous to rules of procedure, the framework rules in which a contest (athletic or judicial) is decided and resolved. These framework rules are not the focus of the contest and should not dictate the outcome. Instead, they regulate the competition, while the players control the outcome through their relative skills and the results of those skills. True, decisions about these framework rules--whether a pitch is a ball or strike or whether something is a foul-- affect how the competitors act and the contest must be resolved in light of those decisions. So we might say these rules "influence" the result. But the players still control the outcome of the game through their skills--whether the pitcher gets the batter out, whether the ball goes in the basket, etc.--without real input from the umpire/judge/referee.
And this is where the sport/non-sport distinction matters. For non-sports such as figure skating, we never get away from the judge and her ultimate opinion as to the intrinsic quality of the skater's performance of those skills. That opinion of the skaters' skills decides the outcome of the contest, not anything that follows from those skills. In other words, the rules of a non-sport are analogous to substantive law that courts (whether through jury or judge) use to decide a legal dispute. Non-sport possesses some of Berman's "competitive desideratum," but the skills cannot alone decide the outcome without a judicial ruling. Just as legal arguments and proof cannot alone decide the outcome of litigation without a judicial ruling.
Returning to Jordy's point about attorney reputation in the eyes of judges, the difference between sport and non-sport lies in how directly reputation affects the outcome. In a sport, to the extent reputation affects what gets called a strike for certain hitters or what gets called a foul for certain players, the influence is indirect, the outcome still controlled by whether the pitcher can get the batter out or whether the ball goes in the basket. In non-sport, to the extent reputation affects how the judges perceive the quality of a jump, spin, or skate, the influence directly dictates the end result of the competition. (In the litigation realm, this might parallel differences in how attorney reputation affects a judge's view of a particular attorney's discovery motion and how it affects the judge's ultimate findings of fact on the merits of the claim).
These are necessarily preliminary thoughts that I hope to perhaps flesh out in the future.
Banning home plate collisions: An exercise in statutory interpretation
Major League Baseball yesterday announced an experimental rule banning, or at least limiting, home-plate collisions. The rule is intended to protect players, as home-plate collisions are a common cause of concussions and other injuries to catchers. Whether it does or not provides an interesting exercise in statutory interpretation.New Rule 7.13 provides:
A runner attempting to score may not deviate from his direct pathway to the plate in order to initiate contact with the catcher (or other player covering home plate). If, in the judgment of the umpire, a runner attempting to score initiates contact with the catcher (or other player covering home plate) in such a manner, the umpire shall declare the runner out (even if the player covering home plate loses possession of the ball). In such circumstances, the umpire shall call the ball dead, and all other baserunners shall return to the last base touched at the time of the collision.
An interpretive comment adds:
The failure by the runner to make an effort to touch the plate, the runner's lowering of the shoulder, or the runner's pushing through with his hands, elbows or arms, would support a determination that the runner deviated from the pathway in order to initiate contact with the catcher in violation of Rule 7.13. If the runner slides into the plate in an appropriate manner, he shall not be adjudged to have violated Rule 7.13. A slide shall be deemed appropriate, in the case of a feet first slide, if the runner's buttocks and legs should hit the ground before contact with the catcher. In the case of a head first slide, a runner shall be deemed to have slid appropriately if his body should hit the ground before contact with the catcher.
Unless the catcher is in possession of the ball, the catcher cannot block the pathway of the runner as he is attempting to score. If, in the judgment of the umpire, the catcher without possession of the ball blocks the pathway of the runner, the umpire shall call or signal the runner safe. Notwithstanding the above, it shall not be considered a violation of this Rule 7.13 if the catcher blocks the pathway of the runner in order to field a throw, and the umpire determines that the catcher could not have fielded the ball without blocking the pathway of the runner and that contact with the runner was unavoidable.
The rule reportedly reflects a compromise between MLB, which had wanted a must-slide-can't-block rule that would have eliminated all collisions and thus done the most for player safety, and the MLBPA, which did not want to make such a major change so close to the season, fearing the players would not have time to adjust.
The basic rule prohibits a runner from deviating from the direct path home to initiate contact with the catcher (or whoever is covering the plate)--that is, from going out of his way to make contact rather than running directly for the plate. But the rule does not prohibit collisions where the runner runs directly into the catcher in trying to score. So, reading only the text, it is not clear the new rule eliminates most collisions, since most collisions come when runner, catcher, and ball all converge at the plate and running through the catcher is the most direct route to scoring. It thus is not clear that it provides the safety benefits it is intended to provide.
The solution may come in the interpretive comments and a more purposivist approach. An umpire may find that the runner deviated if the runner fails to make an effort to touch the plate, lowers his shoulder, or pushes with his hands, elbows, or arms. On the other hand, a runner does not violate the rule if he slides into the plate in an "appropriate manner," meaning his body hits the ground before making contact with the catcher. The upshot of the comments is to grant the umpires discretion to judge when the runner has "deviated" from the path, and thereby to apply the rule so as to further its purpose. The comment incentivizes runners to slide in most cases, since a proper slide per se will not violate the rule, while running through the catcher might be deemed deviating, subject to how the umpire exercises his discretion in viewing the play (whether the runner lowered his shoulder or raiseed his arms, etc.).
The rule seems unnecessarily complicated, given the player-safety goals involved. Especially since they simply could have modeled this rule after the rules that apply at the other three bases. But the sense seems to be that this is experimental, designed to be revisited during and after the upcoming seasons and to function as a first step to get players used to this new way of playing. Think of it as the legislature phasing-in new rules so as to also phase-in new, preferred behavior.
Monday, February 24, 2014
Brevity is . . . wit
In trying to make sure my students are practicing writing as a skill (along with the thinking and analysis that is a precursor to writing), while also trying to ensure an appropriate workload, I have settled on using short writing assignments. I assign quick, discrete questions inviting short, quick-hitting analysis of those questions (e.g., "Identify the problems with this pleading"). The benefit is that it forces them to perform legal analysis--identify and explain a rule and apply it--without room to ramble or BS or throw everything at the wall to see what sticks, which also makes them easier to evaluate and grade. I have a better sense of who gets it and who doesn't. I also think I am able to provide better feedback (written and oral), since the analysis necessarily is compact and concise. It also offers coverage--I can test on a lot of different areas, while avoiding the discomfort I always felt in relying exclusively (or even heavily) on multiple-choice (despite the obvious bar-exam benefits).
And, of course, it famously can be harder to write less than more, so there is a writing challenge to it. (As I think back to my days as a journalism undergraduate, the longest thing I wrote in my first two writing courses was at most 1000 words). Meanwhile, student are writing "full" papers (briefs, memos, etc.) in legal writing, so I know they are meeting a different type of writing requirement elsewhere.
There are a number of ways to do this. One colleague shared that in courses in which students write judicial opinions, the word limit is 2,358--the number of words in Justice Holmes' dissent in Abrams v. United States. As my colleague explains, if Justice Holmes only needed that many words to create what would become free speech doctrine, law students do not need more. I am going to adopt this for the opinions in my upper-level classes. As for other assignments, my in-semester essays run anywhere from 500-1000 words (depending on the class and the assignment). And I have moved to primarily short-answer in-class exams, consisting of 30-or-so questions, with a maximum of 110 words for each answer.
The goal in all of this is that students are writing, even if only a small amount at a time, and even if it does not precisely reflect the briefs they will write in practice. There still is educational benefit in this sort of writing.
Friday, February 21, 2014
George Anastaplo, RIP
I am late to the table in commenting on the death of George Anastaplo last week, but one of my colleagues insisted I could not claim to love the First Amendment and not post something about it here. Anastaplo had a storied academic career as a con law and political science scholar. But Anastaplo he lived it first, litigating his own First Amendment challenge to his denial of admission to the Illinois Bar. He lost 5-4, although Justice Black wrote a dissent (for himself, Chief Justice Warren and Justices Douglas and Brennan) defending the First Amendment and the role of lawyers in times of political conflict. On Black's instruction, the dissent was read at his funeral.
Not a sport, redux
Jordan presaged it, although for different reasons: Judging in women's figure skating is once again a thing, as people question the scoring that gave a Russian skater a surprisingly easy Gold Medal on Thursday. The issue here is less about reputation than about good, old-fashioned home cooking. And a judge who was suspended previously for trying to fix a competition previously. And we may be back to concerns about anonymous judging--established to avoid collusion and bloc-voting, it also removes accountability.
Thursday, February 20, 2014
Show me plead on, plead off
At the end of the pleading portion of Civ Pro, I spend one lecture day walking through the pleading process and all the rules and issues, showing how the pieces (which I teach in discrete and independent segments, not necessarily in chronological order) fit together. A few years ago I started calling this "Miyagi Day," because it felt a lot like that scene where Mr. Miyagi shows Daniel-San how waxing and sanding and painting fit together. And the students, shockingly, seemed to know and appreciate the reference.
Tonight was Miyagi Day (or Night, whatever) and this is what I found when I walked into the room:
Tuesday, February 18, 2014
JOTWELL: Tidmarsh on English civil justice reform
The new essay on JOTWELL's Courts Law is by Jay Tidmarsh (Notre Dame) discussing civil justice reform efforts in England, under the leadership of Lord Justice Jackson. (These efforts are notable, given recent concerns about the proposed FRCP discovery amendments and the direction they are taking on reform).
Friday, February 14, 2014
Coleman on the discovery amendments
Civ Pro profs are talking quite a bit about the proposed amendments to the Federal Rules of Civil Procedure, partly because the comment period is closing. At ACSBlog, Brooke Coleman (Seattle) argues against the amendments to the discovery rules. These amendments would lower the presumptive limits on discovery devices and make proportionality part of the initial inquiry into what information is discoverable (it currently is a basis for the producing party to oppose discovery). Brooke argues that these changes are motivated by concerns for out-of-control and disproportionate discovery that, in fact, are unsupported by empirical studies.
Needed Compromise In The Proposed Discovery Amendment War
The following was written by Suja Thomas (Illinois) on the proposed amendments to the discovery rules of the FRCP, which are a current topic of conversation among civ pro types
The discovery rules are hot. The Advisory Committee of the Civil Rules has proposed several changes to the rules, and lawyers representing plaintiffs and defendants are deeply divided over many of the changes. The changes may be a game changer. Over 700 comments have been submitted, more than twice as ever before, and many law professors have weighed in. Much of the commentary focuses on a proposed amendment to the scope of discovery in Rule 26(b)(1) under which parties can withhold discovery on the basis of lack of proportionality to the needs of a case.
The Advisory Committee is motivated to make change here because discovery is out of whack is some set of cases. However, a study by the Federal Judicial Center shows that discovery is disproportionate in at most 25% of the cases, and more likely, only 6-15% of the cases. A further indication of the extent of the problem is a report of actual discovery costs. Plaintiffs and defendants reported median discovery costs of respectively $15,000 and $20,000 and discovery costs of respectively $280,000 and $300,000 at the 95th percentile (costs equal to or higher than the costs in 95% of the cases). If discovery is working in most cases, a rule change for all cases seems doomed to create problems for already proportional cases. Because of natural lawyer behavior, lawyers vigorously defend their clients, and under the proposed rules, they will aggressively decide not to search or produce discovery on the basis of lack of proportionality even when such discovery would have been otherwise produced or searched in the past. In a recent article in the Wake Forest Law Review, I argued that atypical cases can make bad law, and similarly here, atypical cases can make bad rules where the rules must be applied to typical cases.
At the same time, the problem of disproportionate cases should be fixed. It may be best fixed by a switch away from transubstantivity to address only the cases where discovery is disproportionate, a new rule that could be similar to the Class Action Fairness Act, which provides a different rule for very large cases.
If the proposed change to Rule 26(b)(1) (adapted from Rule 26(b)(2)(C)(iii)) goes forward, there is concern that when a party withholds discovery on the basis of lack of proportionality, the requesting party will possess insufficient information to assess whether to challenge the withholding. In response, the Committee added a requirement borrowed from the interrogatory rule that the nonproducing party must state with specificity the grounds for objecting to a request. However, comparing withholding on the basis of lack of proportionality to objections to interrogatories is not quite the right comparison. Instead, the more appropriate comparison is privilege.
Under the current rule, parties need not produce relevant discovery that is privileged. The proposed rule adds lack of proportionality as the other basis on which to object to the production of relevant discovery. By analogy, then, similar information should be provided for discovery withheld on the basis of lack of proportionality as is provided for discovery withheld on privilege grounds. As much or more information is actually needed when discovery is withheld on the basis of lack of proportionality. Privilege is similar to a recipe. If two lawyers (with the same information about the case) assessed the same discovery, the lawyers would withhold the same discovery as privileged with very few exceptions. Lack of proportionality, on the other hand, is far from a recipe. If two lawyers assessed discovery for lack of proportionality, they likely will not produce or not search different discovery. In other words, proportionality is a much more vague concept than privilege. Add to this, a requesting party will rarely challenge privilege because of the recipe nature of privilege. However, because of the vague notion of proportionality, the requesting party will likely challenge assertions of lack of proportionality.
Rule 26(b)(5) requires particular information must be provided—what is often referred to as a privilege log—when relevant discovery is not produced on the basis of privilege. Similarly, in the analogous context where relevant discovery is not produced or searched on the basis of lack of proportionality, parties will need information to decide whether to challenge assertions of lack of proportionality. A proportionality log would provide such information. The type of information that would be provided on such a proportionality log includes where the party has not searched and why such searches would not be proportional to the needs of the case. While there would be some cost associated with such a log, this log would strike the right balance to permit the requesting party to assess the assertion of lack of proportionality, have discussions with the nonproducing party, and prevent unnecessary involvement of the court. If the amendments are going forward, it is time for a compromise.
Thursday, February 13, 2014
Fan speech, once again
I suppose I should wade back into the renewed interest in fan speech at sporting events, given two recent events at college basketball games: 1) Last week, Marcus Smart, a star player for Oklahoma State, was suspended for three games for shoving an adult fan at a game against Texas Tech, in response to something that the fan, a prominent heckler at games, yelled at him (the fan, Jeff Orr, apologized for his role and voluntarily agreed not to attend any more games this season); 2) Last night, an adult fan was ejected from a game at the University of Memphis, apparently at the request of the referee.
I do not know all the details, so I am not necessarily opining on either situation. But both have people thinking about fan speech, so I would weigh in with what I think are the general principles at work (And I know very well that I am not on the side of the angels in this).
1) At a game involving a public university (as both Texas Tech and Memphis are), the First Amendment is in play. Any efforts to punish fans for their speech is subject to First Amendment limits. This applies, I would argue, even in a privately owned arena that a government entity (such as a public university) is using for its official governmental functions.
2) The stands of a publcily owned/controlled basketball arena are a designated public forum for "cheering speech," which is a broad category consisting of just about everything will say (and shout) during a sporting event that is not inconsistent with that event. This includes taunts, insults, profanity, and even some racist and sexist comments against players, coaches, and refs, as well as all manner of social and political speech.
3) As a public forum, content-based regulations (as on a particular type of cheering) are subject to strict scrutiny, while content-neutral regulations (no signs) are subject to intermediate scrutiny. There also could be reasonable viewpoint-neutral restrictions on non-cheering speech, but the category of cheering speech is so broad, I don't know what that would reach.
4) Fans can be punished for the rare speech that crosses the line into fighting words, which has been narrowed to reach only up-close, targeted, face-to-face taunts. It is possible that Jeff Orr crossed that line, since the incident occurred in very close range--Smart had fallen out of bounds right below where Orr was sitting. And Smart says he heard Orr use a racial epithet, although Orr says he just called Smart a "piece of crap." I do not know if this was a close enough encounter to fall outside the First Amendment, regardless of what was said.
5) Labeling what Orr did "fighting words" does not justify what Smart did. Contrary to what some apparently have said on ESPN, one person using fighting words does not mean the listener has license to fight. It simply means that the speaker can be sanctioned.
6) I legitimately cannot imagine what the fan at the Memphis game said last night that would have gotten him ejected and still be consistent with the First Amendment. Everyone at a basketball game is yelling and screaming and that is accepted as part of the game. So the ejection must have been based on the content of his particular screaming--a content-based enforcement that the First Amendment does not permit.
Sunday, February 09, 2014
More on skating: What if they know your reputation and your routine?
I hope to have more to say on Jordy's post on figure-skating judging. In the meantime, this story on the move from the (new) team skating competition to the upcoming individual competitions later this week adds a new element to Jordy's point. The skaters will perform the same routines in the individual competitions that they did in the team competition. This means that not only do the judges have each skater's reputation in mind, but they already have seen exactly what each skater is going to do and likely have formed some opinion about how they do it.
So how will the combination of reputation and prior viewing affect judging? Because they already loved Russian Julia Lipnitskaia's routine (performed to music from Schindler's List and dancing as the girl in the red coat, as creepy as that may seem), will they be predisposed to loving it the second time? And because they found fault with American Ashley Wagner's jumps, will they be predisposed to find the same faults the second time?
Women and Title VII
From Slate, a brief history of the inclusion of protection for women in Title VII of the Civil Rights Act of 1964. Sen. Howard Smith, a Virginia segregationist, introduced the provision 50 years ago Saturday (Feb. 8, 1964) as a poison pill.
Misusing and misunderstanding the language of law
I do not agree with everything in this Dahlia Lithwick piece on the Dylan Farrow/Woody Allen mess. But she makes a couple of good points about the unfortunate things that happen when the language of law gets abused in the court of public opinion (or, as she calls it, "litigation by hashtag").
First, she has a good takedown of this incoherent nonsense that Allen is not the only one who enjoys a presumption of innocence; Farrow does, too--a presumption of innocence of making false allegations against Allen. As I tell my students, presumptions are about burdens of proof; a presumption of innocence means that those attempting to prove non-innocence bear the burden of offering evidence (burden of production) of non-innocence and the burden of convincing the factfinder (burden of persuasion) of non-innocence. To accord a similar presumption of innocence to the accuser is to shift the burden of proof to the accused to offer evidence and convince the factfinder to the accused party that the accuser is untruthful. But you can't have it both ways. The reason for the presumption (and thus the assignment of the burdens) is because the party proving non-innocence is asking a government body (the court) to formally deprive the accused of life, liberty, or property. It is that threat of official governmental sanction that properly places the burden on the accuser.Of course, those who defend Allen via the shibboleth of "presumption of innocence" similarly misunderstand the concept. Farrow's accusations are evidence, and one could read her account and the other reports of her accusations and conclude that Allen did what she accuses him of doing. One can disbelieve her story or insist it is not enough (especially by throwing around a second shibboleth--"beyond a reasonable doubt"). But one cannot claim that her story is not evidence and thus at least an attempt at the burden of production.
Second, Lithwick criticizes the very idea of the "court of public opinion," because it is a court unbounded by any rules--and a court is defined by its rules. Those who speak of that court never identify what evidence is admissible (e.g., internet trolls calling Farrow a "bitch"?) , what the standards and thesholds are, what to do about lost evidence, what role cross-examination plays, and even who bears the burden of proof. Lithwick's point is that the court of public opinion is often nothing more than opinions (often uninformed) dressed up in "fancy talk" of burdens of proof" and "presumptions of innocence," none of which is helpful. I suppose the court of public opinion could place the burden on the accused. But then own that this is what you're doing.
Finally, a third point that Lithwick does not mention, but that has bothered me through much of this conversation. Everything is clouded by confusion about standards of proof and when and how they apply. One refrain is that Allen has never been convicted of anything and that no one has ever offered proof beyond a reasonable doubt. Because of that absence of a judicial finding B/R/D, either we just do not know what happened and never will (from those who cannot decide) or clearly he did nothing wrong (from Allen's defenders).
But there is a difference between whether someone did something wrong and whether someone should be criminally sanctioned by the state for doing something. The beyond-a-reasonable-doubt standard applies only to answer the latter question. But have other ways to determine whether someone did something wrong, notably civil proceedings, governed by a lower standard of proof, such as preponderance of evidence. Although we do not put people in jail when there is only a preponderance of evidence, we impose other sanctions that obviously are based in a conclusion that the accused did something wrong. And a civil judgment ordinarily is enough to conclude that someone did something wrong. (I wrote something similar following the jury verdict in the sexual harassment case against the Knicks and Isaiah Thomas in 2007).
In this case, there was a civil proceeding to determine custody of the minor children when Allen split with Farrow in 1993, a proceeding governed by the preponderance standard. In that proceeding, Allen was denied full custody and all visitation with Dylan (the court's order is here). There was no finding that Allen sexually abused Dylan, although the judge found that Allen's "behavior toward Dylan was grossly inappropriate and that measures must be taken to protect her." Thus, to the extent legal sanctions other than jail (e.g., custody and visitation) and non-legal sanctions (whether to ever watch a Woody Allen movie) can be imposed on a lesser standard of proof, it is at least arguable that we do have that. So to say Allen has never been found to have done anything wrong is incorrect--this becomes clear once we really understand what standards of proof are all about.
Thursday, February 06, 2014
FIU's First Decanal Lecture on Legal Education
I was happy to welcome Dean Daniel Rodriguez (Northwestern) to FIU this week, for our First (hopefully Annual) Decanal Lecture on Legal Education, titled Innovation in legal education. The video of his lecture is after the jump.
Tuesday, February 04, 2014
JOTWELL: Campos on Thomas on Erie and the Federal Rules
The new JOTWELL Courts Law essay comes from Sergio Campos (Miami), reviewing Margaret S. Thomas, Restraining the Federal Rules of Civil Procedure Through the Federalism Canons of Statutory Interpretation (NYU J. Legis. & Pub. Pol'y), which argues for using canons of construction to protect the "abridge, enlarge, or modify" limitation in the Rules Enabling Act in a cleaner way than under the "federal-rule-on-point controls" approach of Hanna.
Monday, February 03, 2014
Football and the Infield Fly Rule
My essay, Football and the Infield Fly Rule, is now up on UCLA L. Rev. Discourse. The piece discusses football situations and rules that rely on the same internal logic and cost-benefit analysis as the Infield Fly Rule. And the online format let us embed some audio and video. The editors were good enough to push the schedule so we could publish the day after the Super Bowl.
Diversity and Coke commercials
The "This is America, speak English" reaction to this commercial from yesterday's Super Bowl
is probably far more limited than would seem from the stories aggregating all the absurd Twitter comment. Although I will say that the comments and tweets complaining that the commercial defiled "God Bless America" or "the National Anthem" make me smile.
Still, I find even the limited outrage interesting, if only because Coca Cola previously gave us this, widely regarded as one of the best commercials of all time:
For its time, of course, this commercial displayed incredible diversity.
So what explains the different reactions, even if the negative reaction to yesterday's add is far less pervasive than it appears? Is it that the old commercial is about "the world," while the new one is defining (or in some views, redefining) America? Are people more comfortable with and accepting of the outward appearance of diversity, so long as everyone is doing the "American" thing of singing in English? In other words, apparent diversity is acceptable so long as one outward aspect of real diversity--language--is kept out of the picture?
Decanal Lecture on Legal Education
The idea behind what I hope will become an annual program is to invite a dean to the College of Law for a multi-day visit to talk to the law school community about any part of the past, present, and future of legal education. Rodriguez will do a faculty workshop on Tuesday and the lecture, entitled Innovation in legal education reform, for the FIU community on Wednesday.
Again [TV announcer voice], if you're in the Miami area on Wednesday and can make it over to the law school, the event is open to the public. I hope to post video of the lecture later this week.
Innovation in legal education reform
From Ecclesiastes 1:9, we learn that “what has been is what will be, and what has been done is what will be done, and there is nothing new under the sun.”
Not an encouraging message to those of us who are working hard to reimagine the modern law school. But a reality check from those who would advise us that such reimagining is a fruitless endeavor. And what counts as “new” anyway? From the law school trenches, we celebrate innovation and creative rethinking of our educational structures and processes while wondering, in our private moments, whether we are creating truly novel modalities of education and professional training, are essentially reinventing the wheel, or are mostly scrambling to keep up with a rapidly changing profession and an educational world gone haywire.
I want to talk about innovation and legal education reform by focusing on innovation as an intriguing concept, and as an aspiration. What do we talk about when we talk about innovation in law schools? How are the disruptive innovations at work in the professional environment into which we are sending our students? And what are the important connections between the answers to these two questions?
Saturday, February 01, 2014
Against (some) slow-motion replay
This Slate story discusses the work of Zach Burns, a psychologist in the business school at Northwestern, who argues against using slow-motion replay to judge intent in sports, such as for fine-worthy hits, flagrant fouls, etc. Slowing something down affects perception, makes it appear that the built-up to the conduct, and makes viewers more likely to find that someone acted with evil intent. He argues this is true not only for sports, but also for law--he points to a Pennsylvania case in which a man was convicted of first-degree murder after the jury watched surveillance video in slow motion.
Burns does say that replay is fine for judging actions, such as whether someone crossed a line, although it seems to me we'll likely see the same skewing of perception by slowing events down.
Friday, January 31, 2014
Laptops, redux: Yeah, Science!
Here is a story from HuffPost about two studies by UCLA psychologists concluding that students who take notes by hand learn better than those who take notes by computer, both in short-term and longer-term learning. They found that computer users tend to engage in "mindless transcription," which gives them lots of notes, but did not learn as much, especially when testing focused on concepts rather than facts. In addition, at one point they specifically told laptop users not to simply transcribe what they were hearing, but it didn't work--the computer users were unable to stop themselves from trying to get verbatim notes.
College athletes, unions, and short-term employment
As has been reported, an undisclosed number of Northwestern football players (Go 'Cats) are trying to unionize (apparently with support of the athletics administration), having signed cards to initiate the NLRB process. Among the group is senior quarterback Kain Colter, who is done playing for NU. And all the other players will leave within 4-5 years, simply by the nature of college and a college football career.
Here is my question: What happens if all the signers leave an employer before the process (both before the NLRB and in federal court) is complete? Is there some sort of mootness doctrine that kicks in with changes in the people who signed cards? Is it overcome by new players joining in? Are there other unionized industries or workplaces that are so concretely and definitively time-limited in the term of employment as would a university and its football team?
Thursday, January 30, 2014
More on Jewish names
Here is a follow-up in Slate to the story on the origins of Ashkenazi Jewish last names. Apparently, much to the author's surprise, the story generated a lot of interest and commentary, some of it insisting that he was wrong about some things. The story corrects some errors and discusses the range of sources on the subject, some of which are less accurate than others.
Wednesday, January 29, 2014
A decade of wardrobe malfunction
Next month marks the ten-year anniversary of the Janet Jackson/Justin Timberlake "wardrobe malfunction" at halftime of Super Bowl XXXVIII. ESPN The Magazine offers In the Beginning, There Was a Nipple, a retrospective on the "controversy."
There is a lot of interesting stuff on the FCC, then-Chair Michael Powell, and the regulation and punishment of broadcast indecency. CBS' owner was fined a little over $ 500,000, fines that ultimately were successfully challenged in the Second Circuit. The story quotes Powell as saying, essentially, that the commotion over 9/16th of a second is really silly, suggesting his position of public outrage at the time was more for politics and show than any real concern for the health and safety of our children. But he said he felt bound by law and lacking discretion to not pursue this fully. Powell also describes this is as the "last gasp" of the old broadcast regime and "last stand at the wall" for people who believe government can successfully keep objectionable material out of the home.
There also is a nice discussion of the different effects this had on Jackson and Timberlake and the obvious race and gender narrative that presents.
Monday, January 27, 2014
Stephen Glass and the the California Bar
The California Supreme Court on Monday unanimously denied the bar application of former journalist Stephen Glass (of Shattered Glass infamy), a case I wrote about a couple years ago. David Plotz of Slate, who watched this all up close (Plotz's wife, Hann Rosin, was an editor at TNR at the time) and who admittedly does not like Glass, has a sharp takedown of the decision. I am not surprised by the reversal (the lower panels had recommended admission, so I could not see the court taking the case just to affirm), although I am a bit surprised by the unanimity.
I don't do PR and I generally question many of the character-and-fitness rules as irrelevant to the practice of law, so I do not have a lot to say about whether the decision is right or wrong. There is a damned-if-you-do-and-damned-if-you-don't quality to the decision--the court dismisses many of Glass' efforts at rehabilitation and restitution as selfish, motivated by a desire to improve himself and taking place while he had pending applications to the New York or California Bars. As I said previously, lawyers and journalists do very similar jobs, so I understand the particular apprehension with this candidate. But Plotz has a good response, grounded in the adversariness of the legal system--what judge and what opposing lawyer is not going to keep the sharpest of watch when Glass is involved in a case, scrutiny sure to catch any efforts by Glass to repeat his sins.
Sunday, January 26, 2014
Six million Jews (or six million Jewish people)
Sunday's New York Times reports on a new book titled And Every Single One Was Somone, which consists of the word "Jew" repeated six million times in 5.5-point type. From normal distance, it is impossible to see each word, but only a patterned mass; you have to look more closely to see each "Jew." But even then, are you still seeing something de-humanized and reduced to that particular word? Is this a context in which the word is offensive, because we know how it was being thought of by the people (the Nazis) using it?
Friday, January 24, 2014
Stanley Fish and the Meaning of Academic Freedom
[TV announcer's voice]:
If you're in the Miami area today, stop by for the FIU Law Review Symposium, Stanley Fish and the Meaning of Academic Freedom. The event runs from 4-6 p.m. at the College of Law. Speakers include Fish, Robert Post, Fred Schauer, and Larry Alexander; the focus is on Fish's new book, Academic Freedom: From Professionalism to Revolution.
Thursday, January 23, 2014
A random nomenclature question:
Is it offensive to call someone "a Jew"simply in referring factually to that person's religious/ethnic background (in other words, not saying it with a sneer or to further an anti-Semitic remark). The alternative would be to say "He's Jewish." Is one OK and the other not? If so, how is it different than saying "He's a Republican" or "He's a liberal" or "He's an Elk." Is there a difference when talking about political categories as opposed to racial/ethnic/religious categories.
I grant that it would be jarring to hear someone say it that way, but that is because it is uncommon--we generally say "he's Jewish". But is it uncommon because of its offensiveness?
Wednesday, January 22, 2014
SCOTUS on Declaratory Judgments
SCOTUS today decided Medtronic, Inc. v. Mirowski Family Ventures, a unanimous decision through Justice Breyer. The Court held that in a declaratory judgment action brought by a would-be patent infringer seeking a declaration of non-infringement, the patentee bears the burden of persuasion of infringement, just as it would if it had brought a coercive action for infringement. There also is a brief discussion on Skelly Oil and how to define a when a declaratory judgment action arises under federal law (in this case, federal patent law).
Friday, January 17, 2014
JOTWELL: Mullenix on Landsman-Roos on precertification duties
The latest essay from JOTWELL's Courts Law is from Linda Mullenix (Texas) reviewing a student note by Nick Landsman-Roos', Front-End Fiduciaries: Precertification Duties and Class Conflict.
Settlement in § 1983 colonoscopy case
(Sorry, I couldn't figure out a better title). David Eckert, who was subjected to an escalating series of medical procedures by police officers searching (unsuccessfully) for drugs, has settled his § 1983 action for $ 1.6 million. I previously wrote about the case and have been using the complaint in my Civ Pro class. I must admit to being slightly disappointed that we never got to hear the officers trying to argue that the law prohibting state-imposed colonscopies without probable cause was not clearly established.
Thursday, January 16, 2014
SCOTUSBlog: Opinion in Ray Haluch Gravel
I have a recap at SCOTUSBlog of yesterday's opinion in Ray Haluch Gravel v. Central Pension Fund, which held that a district court decision that resolves the merits but not a petition for attorney's fees is a final and appealable order, triggering the 30 day clock for filing an appeal. The Court continues to do procedure, even getting it right sometimes.
Stanley Fish and the Meaning of Academic Freedom
FIU Law Review will host Stanley Fish and the Meaning of Academic Freedom next Friday, January 24, 2014. This is a roundtable discussion of Fish's new book, Versions of Academic Freedom: From Professionalism to Revolution. Participants, besides Fish, are Robert Post (Yale), Larry Alexander (San Diego), and Fred Schauer (Virginia). The Review will publish the discussion, papers from the participants, and a micro-symposium on the book.
If you are in Miami, please come for what should be a great program.
Quick thoughts on personal jurisdiction
A few thoughts on personal jurisdiction following Tuesday's decision in Daimler v. Bauman, an 8-0-1 opinion by Justice Ginsburg, with Justice Sotomayor concurring in the judgment. Here is a good recap/summary.
1) I think the majority got it right. It clarified what it said three years ago in Goodyear--general jurisdiction is appropriate only if the defendant has continuous and systematic contacts that render it at home in the forum state, which usually means state of incorporation and principal place of business. The Court rejected the common lower court approach, still coming even after Good Year, applying general jurisdiction where an entity "engages in a substantial, continuous, and systematic course of business." The Court called this "unacceptably grasping," as it means any large corporation is subject to general jurisdiction pretty much nationwide.
2) The Court did leave open the possibility that a corporation could be subject to general jurisdiction in states other than incorporation and P/P/B, although there were strong hints this would be rare. The analysis would depend not only on the corporation's contacts with the forum, but also its contacts with other fora--the inquiry is whether the corporation is at home in the state--if it just does a lot of business everywhere, it is not at home there. The civ pro listserv jumped to the example of Boeing in Washington State--Boeing is incorporated in Delaware and headquartered in Illinois, but does most of its work in Washington.
3) In footnote 20, the Court erased any doubt that the two-step approach to personal jurisdiction everyone learned in law school (1) contacts 2) reasonableness only if there were contacts) remains the proper framework, but only for specific jurisdiction. There was some doubt about this after Nicastro, where all three opinions seemed to conflate the two prongs and Kennedy seem especially averse to jurisdiction based on some sense of convenience. But Kennedy signed onto the footnote here.
4) This was the point of departure with Justice Sotomayor, who wanted to apply the two-step approach even to general jurisdiction. The majority said that asking whether it is reasonable to subject a defendant to suit in its home would be superfluous.
5) This is a good teaching case. Justice Ginsburg starts with Pennoyer and the evolution of personal jurisdiction and spends time on the development and differences between specific and general jurisdiction. Ginsburg did the same thing in Good Year, but she really draws it out here. In teaching thiss area, I cover International Shoe, then introduce and define some concepts before diving into the 1980s cases beginning with World Wide. Ginsburg's discussion in Daimler will work well for introducing the two types of personal jurisdiction.
6) The one thing the Court did not resolve is when and how the contacts of a subsidiary can form the basis for gaining jurisdiction over a parent. The plaintiffs had tried to get Daimler in California through Mercedes Benz USA, which actually conceded general jurisdiction in California (ironically, the Court's ultimate analysis means MBUSA is not subject to general jurisdiction in California, since it is incorporated in Delaware and has its PPB in New Jersey). So what happens if Daimler is sued in, say, New Jersey, where MBUSA is "home"? Does that mean the parent is subject to general jurisdiction? Or will the Court say that the parent is only home in its own state of incorporation/PPB (which may not even be in the US)? Stay tuned.
Wednesday, January 15, 2014
Fontana on Jewish athletes
David Fontana (GW) has a piece at HuffPost on The Return of the Jewish Athlete, discussing some sociological and demographic causes for the recent revival (relatively speaking, of course) of Jewish athletes. These include increasing intermarriage, new Jewish immigration, and increasing populations in suburban and exurban communities and growing areas such as the Southwest. He also pays note to Northwestern's Aaron Liberman, a 6'10" center who wears a yarmulke and played high school basketball at a Yeshiva, earning the nicknmae "The Jewish Dwight Howard."
Tuesday, January 14, 2014
Lawsuit over George Washington Bridge closings
The first lawsuit arising from the politically motivated closing of the George Washington Bridge was filed last week and John Culhane explains how more could be coming. This one is a purported class action by six plaintiffs who claim they were stuck in traffic on the bridge and late for work, causing them to lose wages and suffer other economic harms. Defendants are Christie, his former aide, two Port Authority officials, the Port Authority, and the State of New Jersey. It's a really poorly drafted complaint and kind of hard to figure out, with a lot of boilerplate and legal conclusions signifying nothing.
It does not identify any of the rights or sources of rights asserted. The first three counts appear to be § 1983 claims for 14th Amendment Substantive Due Process, Right to Travel, and failure-to-supervise/failure-to-train by Christie and the two entities. But this creates problems a number of problems. The plaintiffs cannot sue New Jersey and the Port Authority, which are state entities not subject to suit under § 1983. I suppose the conduct is conscience-shocking, although I'm not sure the right to travel includes the right to travel quickly or to get there on time. I'm also not sure Christie is in a supervisory relationship to the Port Authority workers (as opposed to the former aide) for failure-to-train purposes. And as for qualified immunity, is snarling traffic as part of a political vendetta equivalent to selling foster kids into slavery (the Posnerian paradigm of an obviously clearly established right for which no prior case law is necessary)?
Culhane gives the suit a chance, at least as a matter of state tort law. Because the alleged conduct was intentional, the plaintiffs may get around the economic loss rule. But since most of the complaint seems to be making constitutional claims, I am not sure how much that matters.
Monday, January 13, 2014
More on the Infield Fly Rule
This has been a good week for my ongoing work on baseball's Infield Fly Rule. First, my originlal cost-benefit defense of the rule, The Economics of the Infield Fly Rule, is now out in Utah Law Review and SSRN. Second, I have a piece forthcoming in UCLA Law Review Discourse discussing football rules that reflect similar logic to the infield fly. Third, I am finally through the quantitative analysis of how often the IFR is called and where, which involved watching thousands of plays from the last four years of Major League Baseball; now I just have to write it up and draw conclusions. And I'm now trying to figure out whether I can turn all of this into a book-length project and what additional pieces I can add.
Thursday, January 09, 2014
You can't make this stuff up, prison litigation and football edition
A man in the Pennsylvania prison system last week filed a handwritten Motion for a Temporary Emergency Injunction on the NFL Playoffs.
The man appears to be a Pittsburgh Steelers fan, who is angry that the Steelers missed the playoffs. This happened because, in the final week of the season, the San Diego Chargers beat the Kansas City Chiefs in overtime. In that game Chiefs kicker missed a field goal as regulation expired. The Chargers had an illegal formation on that kick, which was not called and which the Chiefs could not challenge; had it been, the Chiefs would have gotten to re-kick from five yards closer.
The motion argues that the league acts fraudulently and negligently in limiting the replay challenges that teams can make. It also argues that the league rule requiring immediate stoppage of play if a player loses his helmet (which took an overtime touchdown away from KC) is unconstitutional because it violates "enacting clause amendments" (not sure what this means) and was "not founded on their forefathers" (hey, Originalism!).
The motion was denied because the plaintiff did not pay the filing fee--he asserted In Forma Pauperis at the top of the motion, but never formally sought a waiver of the fee. In some ways this is bad, because Mr. Spuck now will be angry that his motion, which has no remote legal validity whatsoever, was not considered on its merits. On the other hand, my experience as a law clerk was that many prisoners react worse when you do give their papers merits analysis and they still lose.
A fun read on the origins of common Ashkenazi Jewish names.
Tuesday, January 07, 2014
Where sports law meets contracts
In 1976, the NBA and ABA merged, with four ABA teams joining the NBA and two--the Kentucky Colonels and Spirits of St. Louis--being bought out. The Colonels owners took $ 3 million and went away. The Spirits owners--Ozzie and Daniel Silna--took a different approach. They took less cash--about $ 2.2 million--in exchange for getting 1/7 of the television revenue for the four ABA teams that joined in perpetuity. In 1976, that was not a big deal; as late as 1980, the NBA finals were being shown on CBS late at night on tape delay. All that changed when the NBA exploded in the early 1980s. Instead, the league has paid the Silnas more than $ 300 million over the past 30+ years, while regularly trying to get out of the deal. Well, it now appears they are close to a deal that will pay the owners $ 500 million to go away. That's more than $ 800 million where one side has foresight and the other doesn't (or where one side just gets lucky).
There must be a good contracts lesson in here somewhere--about expectations or mistake or something?
Monday, January 06, 2014
HuffPost Live on Utah SSM case
I appeared on HuffPost Live with Mike Sacks on Monday afternoon discussing the Supreme Court stay of the injunction in the Utah marriage equality decision. Also on the show were Michael Dorf (Cornell) and Neomi Rao (George Mason). It was a good discussion that also got into the Little Sisters case, which has a stay application (of the district court denial of an injunction) pending before Justice Sotomayor.
After the jump, one additional thing I did not get a chance to say on the Utah case:
A lot is being made of the approximately 950 same-sex marriage licenses that Utah issued under the force of the district court injunction, which now are in limbo. (Dorf argues that Utah could ultimately recognize these marriages as permanent, but is not constitutionally obligated to do so. SCOTUSBlog reports that it is not known how many those couples actually got married and that the state is trying to figure out what to do about any marriages). Sacks drew the obvious camparison to California, which recognized the thousands of same-sex marriages performed between the Caifornia Supreme Court decision in summer 2008 recognizing marriage equality as a matter of the California Constitution and enactment of Prop 8 in November 2008.
An important distinction involves finality within the judicial branch. When the California Supreme Court rendered its decision in 2008, that was the final word on the meaning of California equal protection and due process from the judicial branch of California. The state of California law was finally established--as a a constitutional matter, same-sex couples had an unquestioned right to marry, California had an unquestioned obligation to grant those marriage licenses, and an unquestioned obligation to recognize those marriages as legal for all purposes and in perpetuity. The only reason those marriages came into question was because the state of established California law subsequently changed when Prop 8 amended the state Constitution.
But that seems fundamentally different from marriages occurring during the pendency of litigation, before the "federal judicial branch" (the Article III system as a whole) has spoken. Here, we have heard from one judge in the court of original jurisdiction and the case is pending before the next judicial level. The rights of same-sex couples to marry and the obligations of the state to recognize those marriages have not been finally established by the judiciary. And the state of the law can easily change not through the extraordinary efforts of a constitutional amendment, but by the simpler step of a higher court reversing a lower court. Thus, should the Tenth Circuit (or SCOTUS) reverse the district court, Utah is under less of a legal obligation to recognize those ineterregnum marriages than California was.
Stay in Utah SSM case
SCOTUS without comment stayed the permanent injunction against Utah's ban on same-sex marriage, pending disposition in the Tenth Circuit. So we are back to no marriage equality in Utah, at least for a few more weeks (the Tenth Circuit agreed to expedite the appeal). Probably the correct result, although Mike Dorf makes a good argument the other way. In particular, the lay of the land has changed since I first wrote about the case--hundreds or thousands of same-sex couples have gotten marriage licenses since around Christmas, when the district court and court of appeals denied the stay, and this morning. So the thing a stay is designed to prevent--chaos in the status quo that may be difficult to undo--already has happened to some extent.