PrawfsBlawg

More on electoral politics and "Friday Night Lights"

A follow-up to my post about Mitt Romney coopting "Clear Eyes, Full Hearts, Can't Lose" from Friday Night Lights and the objections of the show's producer:

Dan Hopkins (political science at Georgetown), writing at The Monkey Cage, applies a model to predict how the major characters would have voted in 2008. He concludes that pretty much everyone would have voted for McCain, including Mrs. Coach (not sure I agree with that one). He does not discuss Julie Taylor (Coachette, if you will), whose "get-me-out-of-this-small-town" attitude likely makes her a Democrat. Definitely worth a read.

What if they'd stayed in law school?

Michael Madison (guesting at Faculty Lounge) started a discussion about famous people who have started, but not completed, law school before going on to fame and fortune. He and his commenters have identified Gene Kelly, Paul Simon, and Cole Porter (who, while giving up the law, famously set the old standard for summary judgment in a case still included in many case books, even if students no longer know who Porter was).

Can you think of others? Leave comments here or at The Lounge (or both).

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.

Today in sanctionable lawsuits

A New Orleans Saints fan named David Mancina has filed a putative class action against Roger Goodell and the NFL, alleging that Goodell and the league's suspension of Saints players entitles Mancina and other Saints fans to damages from (I am not making this up) "the diminishment in the value of their tickets; their personal emotional reaction to the unwarranted penalties inflicted on their beloved team, players, coaches, and executives; and the deliberate reduction of the competitive capability of the Saints due to the selective gutting of the critical components needed to justify the loyalty of Plaintiff and the class." And according to the complaint, he actually had counsel to do this.

The first, obvious response is they lack standing. But the defects in this go so far beyond that. This has to be sanctionable, and I am not someone who is big on sanctions. If one of my students turned this in in a drafting exercise, she would fail.

1) The Complaint does not identify any claim, that is any right or legal obligation to the plaintiffs that Goodell or the league breached on the facts at issue. They  just ask for damages to fully compensate them, but assert no legal rule that entitles them to recovery, but they assert no legal right to recover. We teach in Civ Pro that "he violated my rights" or "he injured me" is not sufficient in a complaint, even pre-Twiqbal. You never expect to actually see one of those.

2) The prayer for relief asks "that Defendants be duly cited to appear and answer this complaint and after due proceedings for judgment against The Commissioner and the League for damages to fully compensate Plaintiffs, and the Class, for damages, and all other general and equitable relief required in the premises." This is utter nonsense. His prayer for relief is that they be made to respond to the complaint.

3) The complaint asserts as one basis of jurisdiction § 1331, but no indication of how this is a civil action "arising under" federal law.

I am tempted to use this in class next semester, as a sample complaint showing what you absolutely shouldn't do. But this is almost so bad as to not be a good illustration of what is bad. Almost.

Dorf against debate

Here, hereHear, hear. I haven't watched any of the debates and don't plan to start now. The only thing I would add against them is that they are largely theatre, a performance, not unlike confirmation hearings.

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.

In Defense of the Infield Fly Rule

My two posts on the controversial Infield Fly Rule call in last week's National League Wild Card game generated a number of comments and emails, several suggesting that, not only was the call wrong, but that the rule itself is a bad idea and should be scrapped. This motivated me to write a defense of the Infield Fly Rule, which now has been published on The Atlantic.

Law on TV

It is not breaking new ground to say that television is fascinated by law and lawyers, even if the portrayal is never quite right. It does give us some exam or discussion ideas or at least something to blog about. To wit:

On Parenthood, the lawyer character got into trouble at work because she missed the deadline for submitting her responses to Request for Admissions (that phrase was repeated multiple times, probably because it sounds fancy--I don't think I mention Requests to Admit that many times in my entire semester-long class). As a result, the case was going to be dismissed, her client was going to be out millions of dollars, and the firm was going to be sued for malpractice. Opposing counsel declined to accept the late responses because doing so would hurt her client.

This seems really far-fetched to me. Courts don't dismiss cases for a single inadvertent discovery mistake; it would have taken a whole lot of prior discovery problems for the court to get to that point; would the court really have not forgiven a one-day delay (to the extent the court is even involved in discovery at that point).? I also would expect opposing counsel to agree to the after-the-fact extension, since there probably was no prejudice. The show obviously was trying to set-up work problems so the character can face a work-family balance crisis. And maybe discovery sounded fancier and more lawyerly than a problem (like failing to file a lawsuit on time) that might actually get a case dismissed.

And, hey, anytime you can make drama out of discovery, you have to go there, right?

More questions, with SPOILERS, after the jump.

I also am right in the middle of the most-recent episode of Elementary (Sherlock Holmes in New York), which does not feel that much different than any other CBS police procedural. Holmes suspects the neighbor of the murder victim of having stolen something from the victim's apartment, so he kicks in the door to reveal the stolen item; as he is doing this and the neighbor is screaming about him having to get a warrant, Holmes says "it's a good thing I'm not the police." That is just flat-out wrong; Holmes acts under color of state law under at least two (maybe three) tests. Can anyone come up with a conceivable argument that he doesn't?

Finally, here is the one I genuinely need help on, because I know nothing about wills. In that same episode, Sherlock discovers that the two murder victims both had been fathered by the philandering father of a prime suspect. The wealthy man had recently died, with a will leaving the estate to his marital daughters (the suspect and her twin sister). But, Sherlock says, the two victims are "pretermitted heirs" who would be able to come back and make a claim on the estate, thus giving the suspect motive to kill them.

This seems really, really wrong. If the father made out a will, assuming it is valid, he can disinherit or devise to anyone he wants, can't he? That there might be heirs entitled to a claim in the absence of a will does not mean they can make any sort of claim on an estate that has been probated pursuant to a valid will. In other words, they only would be entitled to millions of dollars (the basis for the motive) if they could show the willis invalid; they could not show entitlement to recover simply because they are descendants. Am I wrong about this? Am I missing something?

 

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.

What's in a name and what does it say about your political preferences?

This is kind of neat: It charts political donations by first names (including all names appearing 25 or more times in the databases of contributors to the two major-party presidential candidates), trying to also sort by gender. It shows some definite patterns in names that lean one way or another. There even are differences between full names and nicknames (i.e., Christopher leans Republican while Chris leans Democrat). Obviously, this somewhat maps onto the gender divide between the parties (since women lean Democrat). It probably also maps onto ethnic divides, as some first names are more common in racial or ethnic groups that lean one way.

The article includes a search function, so have fun looking for your name and your friends'/family's names. For my part: Howard leans slightly Democrat (52 %-48%), while Jennifer/Jen (my wife) and Lillian/Lily (my daughter) all were overwhelmingly Democrat.

Action subject to judicial review v. judicially reviewable action

My argument recap for Kloeckner v. Solis is up on SCOTUSBlog. (This was the third of the jurisdiction cases on the schedule this week).

It was a fun argument, involving close parsing of language in a complex statutory scheme. The government's argument turned on the distinction between an "action subject to judicial review" and a "judicially reviewable action." When the government's attorney first offered that distinction, the Chief asked her to say it again, a little more slowly. When the Chief repeated her argument back to her, she said “Say it again? I’m sorry?” After which, the attorney said "This is going to happen a lot." Indeed.

This week in jurisdictionality

Having read the argument transcripts in Kiobel and Lozman, SCOTUS' early-term jurisdictionality cases, I am somewhat at a loss. Nothing in either case should have had anything to do with jurisdiction. The arguments both seemed rife with the mixing of jurisdiction and cause of action that I thought the Court had cleaned up fairly well over the past several years. And I am a bit worried that these cases will muck things up a bit.

Lozman considered whether the property at issue was a "vessel." And the Chief at one point insisted they needed to find the easier test, because this was a jurisdictional statute, which should be "clear and easy of application." But "vessel" does not appear in the maritime jurisdiction grant, which states simply that district courts have original jurisdiction over "[a]ny civil case of admiralty or maritime jurisidiction." Rather, the word appears in the Maritime Lien Act, which is the substantive law at issue in the case. Thus, the meaning of vessel, and whether the thing at issue here is a vessel, should be a merits question. I cannot see any difference between defining vessel here and defining "employer" or "employee" in a Title VII action, both of which are treated as merits issues, with jurisdiction established because the action "arises under" federal law.

As for Kiobel, there was no talk of jurisdiction v. merits or Morrison, although that was one of the issues on which the Court granted cert and reargument. The discussion was largely about what international norms are. The petitioner's arguments sounded, implicitly, in an understanding that corporate liability and extraterritoriality went to the merits of international law as incorporated into federal common law. I agree with that understanding, but continue to believe these are properly merits concerns and that § 1350 is satisfied by the allegations by an alien of a tortious violation of the law of nations

Speaking as a proceduralist, one of the more interesting exchanges came at the end of the petitioner's argument. Justice Ginsburg asked whether, given the argument that this involved a universal norm incorporated into federal common law, there was general federal question jurisdiction under § 1331. The petitioner ran from that notion, citing the history of § 1350 and the Founders' intent to allow certain law of nations laws to be implemented through common law tort actions. But, Justice Scalia channeled Justice Homes and argued that general common law was not deemed state law, but was "a general law that was up there in the sky" that, while enforceable in court, was not necessarily federal law. The petitioner responded that post-Erie cases preserved foreign relations as an enclave of common law that could be considered federal. That works, Justice Kennedy argued, only if Justice Ginsburg is correct that the case could have been brought under § 1331. Justice Ginsburg then added that the reason that Congress enacted the ATS may have been simply that there was no general federal question jurisdiction in 1789.

This is an interesting path. It would render § 1350 superfluous, just as § 1331 (sans amount-in-controversy requirement) has rendered other statute- or subject-specific jurisdictional grants superfluous. But it would also clarify that all of these arguments about the scope and application of federal common law are, properly, arguments about the merits of the claim. That should be true whether jurisdiction is established under § 1350 or § 1331.

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?

Legal Humor

I first this joke when I was clerking so many years ago, but I was reminded it of it just this morning.

A law professor, a federal appellate judge, and a federal trial judge go duck hunting. Under state law, they are only permitted to shoot ducks at this time of year, so they obviously must be sure that anything they shoot is a duck.

A group of birds flies overhead, making noise. The appellate judge stands up and says, "I conclude that those are ducks. I know those from applying the six-part, eight-factor test established in Goose v. Duck," which he then explains in great detail. By the time he has finished his explanation, the ducks have flown out of range. He sits down.

A few minutes later, a second group of birds flies overhead. The law professor stands up and says "I conclude that those are ducks. But the test of Goose v. Duck is ridiculous, because it is biased against historically oppressed species, ignores principles of rational efficiency, ignores the insights of animal behavioral economics, and departs from Kantian ethics." The professor continues to explain this all in great detail. By the time he has finished, the ducks have flown out of range. He sits down.

A few minutes later, a third group of birds flies overhead. The trial judge stands up, squeezes off three rounds and blows three birds out of the sky. He turns to his friends and says

"Boy, I hope those were ducks."

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.

Jurisdiction Week at SCOTUS

Perhaps still traumatized by deciding cases that the media is covering (poorly or otherwise) and the whole nation cares about, the Supreme Court opens its new term on Monday with three cases that only procedure profs could love: federal subject matter jurisdiction, including two involving merits/jurisdiction overlap.

• Lozman v. City of Riviera Beach raises the issue of whether a houseboat is a vessel (Mike Dorf has some fun with this in a Hart-and-Fuller, or Scalia-and-Posner, way), both for the merits of a foreclosure claim on a maritime lien and for federal admiralty jurisdiction. The Court may have to deal with some sub-issues, such as how to define "Any civil case of admiralty or maritime jurisdiction" in the jurisdictional grant; whether a merits fact, such as whether something is a "vessel," also goes to jurisdiction; and, if so, the standard of proof for that fact in the jurisdictional context. Kevin Clermont and Dorf  filed an amicus on the subject, arguing that the fact for jurisdictional purposes should be subject to a prima facie standard, as opposed to a preponderance standard for the merits. I will have more to say on this after the argument.

• Kiobel v. Royal Dutch Petroleum, held over from last term for reargument, raises the issue of whether a claim can be brought under the Alien Tort Statute against a corporation for extra-territorial conduct. As a preliminary matter, the Court also must consider whether the availability of corporate civil liability is an issue of merits or jurisdiction. I will have more to say on this, as well; I would argue that whether the corporate defendant can be liable is a purely merits question and has nothing to do with the court's jurisdiction.

• Kloeckner v. Solis considers where a federal employee must challenge a decision by the Merit Systems Protection Board in a "mixed case" (one raising discrimination and termination issues) in which the Board did not resolve the merits of the discrimination issue--the Federal Circuit (which ordinarily reviews MSPB decisions) or a federal district court (which ordinarily hears discrimination claims). I wrote the case preview for SCOTUSBlog, so I will be coming back to this case over the course of the term.

JOTWELL: Epstein on Greenhouse on the Supreme Court

The new essay for JOTWELL's Courts Law is by Lee Epstein, reviewing Linda Greenhouse's  The U.S. Supreme Court: A Very Short Introduction.

Practical scholarship

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.

As NASCAR goes, so goes America?

Two years ago, I wrote about a poll showing the general politcal breakdown of sports fans. It found that sports fans overall leaned Republican, with NASCAR fans among the strongest Republican supporters (along with fans of golf and college football). Zogby just published a poll showing Obama with a lead among self-identified NASCAR fans (admittedly small sample size of only about 200 out of an overall sample of 800).

Sorkin better in PSAs?

Fresh off my post decrying how bad Aaron Sorkin shows have become (or, in retrospect, always were), comes this story about using The West Wing to teach about democracy. Hillary Clinton told a story about the speaker of the lower house of Burma's parliament telling her that, in an effort to learn how to be a democratic body, they had taken to watching old segments of the show (Clinton did not agree that was the best way to do it).

Cast members also have taken to doing political PSAs and educational spots, in character and in full Sorkin Mode. The most recent one is for Bridget Mary McCormack, a law professor at Michigan (and the sister of a former castmember) who is running for the Michigan Supreme Court; the spot also tries to educate voters about the non-partisan sections of the ballots, including judicial elections. The earlier one is by Funny or Die and is a mock PSA (sorry, unable to embed) about the benefits of walking and looking for a way to inform people about the benefits of walking.

It's all prettty funny (especially in its self-awareness: "Hey, how about a TV show showing people walking?" "Nah") and quite enjoyable, at least in short bursts. Maybe politics are different.

  

 

Civ Pro, Fed Courts, and figuring out what goes where

Two commenters on Trey's post on Erie sugget that the weeds of the doctrine belong in Fed Courts rather than Civ Pro, especially in light of the general reduction of Civ Pro to four hours. The problem is that there are other subjects besides Erie that potentially could go in either course. And, of course, Fed Courts is usually only three hours (at least at my place), so there is only so much that can be moved to Fed Courts without overloading that class. Plus, as Steve has written, there are competing theories of what Fed Courts should be, which naturally affects what gets covered; I structure my Fed Courts class as I do precisely because it flows from my own four-hour Civ Pro class.. Finally, I have the benefit of also teaching Civil Rights, which really is an advanced Fed Courts class, into which I can move some topics. But Civil Rights is not a hugely subscribed course (certainly compared with the other two), so there is the risk that not enough students will get some material.

The point is, any coverage decision in Civi Pro has a downstream effect. It seems to me that these are the "movable" topics that could go in any of the three classes: 1) "Advanced" Federal Question Jurisdiction (embedded federal issues, private rights of action, etc.); 2) Erie; 3) Appealability (both to the courts of appeals and to SCOTUS); 4) Habeas (post-conviction and national security); 5) Eleventh Amendment; 6) Abstention;  and 7) Probably others that I'm forgetting.

My choice as been to keep Erie in Civ Pro, move Federal Question and Appealability to Fed Courts, move Eleventh Amendment to Civil Rights (beyond a 30-minute lecture on it in Fed Courts), and largely skip Habeas (beyond a quick overview on the way to teaching Heck v. Humphrey).  I cover Absention in both Fed Courts and Civil Rights, with a narrower focus in the latter. Of these, I am rethinking putting the Eleventh Amendment back into Fed Courts (while also covering a narrower version in Civil Rights), provided I can figure out what to remove in its place.

Unexpected phone solicitations

This morning, I received a telephone solicitation from the DNC--as we were getting ready to leave for synagogue. I don't know; if there were any secular organization that would be particularly aware that today is a Jewish high holy day, I would have expected it to be the Democratic Party.

Orwell on writing

Slate's weekend feature of Longform writing today includes George Orwell's Why I Write. One of my senior colleagues always recommends that new scholars read this.

A family of ducks! Family of what? Ducks!

For those of you who have ever read Make Way for Ducklings to your kids:

 

Baby on (white)board

This dust-up over an anthropology professor at American University who nursed her infant during (ironically) a "Sex, Gender, Culture" class should resonate with recent Prawfs conversations over breastfeeding and bringing our kids to school/class. Not much I want to add, other than to highlight one comment in the Slate post: The irony of the student insisting that he was distracted by the professor breastfeeding, while he is posting messages to Twitter and Facebook.

Gee, that's big of you

Maryland Delegate Emmitt C. Burns, Jr., after a few days as a national punchline, has had some time for "reflect[ion]":

"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.

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.

Has Aaron Sorkin always been unwatchable?

I have always been an Aaron Sorkin fan. Like every law professor, I can recite A Few Good Men from memory; like every Democrat of a certain age, I loved The West Wing; and like not many people (since no one watched the show), I enjoyed Sports Night.

But we stopped watching The Newsroom after about three episodes. And it was not about his political leanings, which I largely share. And I like the idea of a press that actually does ask the tough questions in a sort of prosecutorial manner.

The problem is the stories and characters. The women were all written as totally incompetent personally or professionally or, usually, both (Sorkin has taken a lot of criticism for this). Just about every character seems thoroughly unlikeable as a human being, particularly the men who draw out the incompetence of the women. And the Sorkinesque speechifying, meant to be soaring, often comes across as bullying or humiliating. Sorkin paints a world in which it would be great if we all had the ability to call  someone out and cut them to the quick in an articulate way; but often, that just looks obnoxious. Plus, his characters are basically the same; you can link a character on The Newsroom to one on WW to one on SN.

The thing is, I'm not sure it is only this show. I recently went back to Season 1 of Sports Night and found it just as unwatchable for many of the same reasons. The characters were slightly better and more enjoyable, but the blatant sexism and retrograde sexual politics remained, as did the speechifying that just came across as obnoxious or unbelievable.

Am I wrong? Am I being too harsh? Trust me, I can handle the truth.

One-shot cases

Gerard Magliocca at CoOp poses a good question: What SCOTUS cases have been one-way (or one-day) tickets, in which the result and judgment is important but the reasoning has little doctrinal impact going forward. Gerard believes ACA is such a case, as is Bush v. Gore. In the comments, I suggested the obscenity cases from the 1960s, where the Court could not get a majority around any standard for obscenity but reversed conviction after conviction.

Are there other examples? Leave comments here or over at CoOp.

More free speech and ideology

Apropos of this brief conversation and stuff I've written here before, comes this paper by political scientists Lee Epstine, Christopher Parker, and Jeffrey Segal that finds a correlation between the nature of the speaker and speech at issue and the likelihood of the Court and individual justices voting in favor or against the First Amendment claim. This result also is consistent with theories of in-group bias/favoritism--that people give preferential treatment to members of their own group.

I still believe the liberal/conservative labels are too crude generally and especially as applied to expression. Plus, is it really in-group bias that is going on in First Amendment cases? While I agree with the outcomes in the flag-burning cases and in Snyder v. Phelps, I'm not sure I am "part" of either group. We could tweak it as political agreement or sympathy, but I certainly would not say I agree with the ideas expressed by the speakers in either of those cases. And in something like campaign finance, we don't even know what the speech at issue will be; there is an assumption that the corporate speakers will make conservative speech, but do we know that is true in the abstract?

Anyway, the study is useful in showing that the simple notion of a complete alignment or complete reversal of left/right support for speech both are wrong. Beyond that, more grist for the discussion.

Scalia, judicial ideology, and flag burning

Dan flags Richard Posner's negative review of Justice Scalia's new book (with Brian Garner), a review which largely speaks for itself. I wanted to delve into a side issue regarding Justice Scalia's vote in the flag-burning cases and what it says about his judicial philosophy.

As Posner describes it, Scalia tries to mount a preemptive defense to the charge that their interpretive theory of "textual originalism" is not political or inherently conservative by pointing to "liberal" decisions he has joined. His choice--the flag-burning cases of Texas v. Johnson and United States v. Eichman. Indeed, Johnson and Eichman, and Scalia's votes in those cases, have for 20+ years been the go-to exhibit to demonstrate that the justices are not governed by political preferences. Posner argues that this is a "curious" example to use in defense of textual originalism, since the First Amendment doctrine that led (properly) to constitutional protection for flag burning is a modern product, not grounded in the Framers' understanding of the freedom of speech. Posner argues that Scalia and Garner repeatedly praise Blackstone, whose conception of free speech was limited to prohibiting prior restraints but not post-speech punishment.

More fundamentally, using a few free speech cases to demonstrate his ideological neutrality is strange because the First Amendment should be, in theory, deologically neutral. That Scalia does not personally approve of flag burning is beside the point; the goal is that he is committed to a principle of occasionally caustic criticism. Or, if Scalia wants to use his speech-protective votes to show his open-mindedness, why not focus on R.A.V. v. City of St. Paul, where he wrote a broad opinion invalidating an ordinance prohibiting cross burning.

Ironically, there is a different area in which Scalia's votes have been ideologically unexpected while also arguably adhering to some form of originalism--the Confrontation Clause cases of the last decade, beginning with Crawford v. Washington. Writing for the Court and adopting an explicitly historical approach to the Sixth Amendment (with prolonged discussion of Marianist ex parte affidavits and the treason trial of Sir Walter Raleigh), Scalia pushed the Court down an analytical path that had the potential to greatly constrain the ability of government to admit a range of hearsay statements against criminal defendants. And when the Court backed away from some broader applications of Crawford, Scalia remained in outraged dissent. He stuck to his historical guns, even as Justice Sotomayor took a shot at his approach by insisting that the murder investigation at issue in Bryant was "readily distinguishable from the "treasonous conspiracies of unknown scope, aimed at killing or overthrowing the king," post, at 1173, about which Justice SCALIA's dissent is quite concerned." In fact, Scalia closed his Bryant dissent with a downright Brennanesque flourish:

For all I know, Bryant has received his just deserts. But he surely has not received them pursuant to the procedures that our Constitution requires. And what has been taken away from him has been taken away from us all.

This is a true example both of originalism yielding liberal results; it would be nice to see Scalia and others focus on this example and not on free speech cases that reflect a very different analysis and a different set of expectations.

PEGs: Performance Enhancing Gloves

Researchers at Stanford, led by two biologists, are close to having a commercially viable cooling glove, a device designed to cool core body temperature by cooling blood in particular veins in the palm that are devoted to temperature regulation. (H/T: My colleague Tracy Hresko Pearl).

The research team also discovered that the glove carries athletic benefits. Cooling the body also cools muscles. Muscle fatigue, it has been found, is a product of the temperature in the muscle getting too high (something to do with a chemical enzyme); by cooling the muscles, the glove essentially resets the state of muscle fatigue, allowing an athlete to start over. In a six-week period, one member of the team went from doing 180 pull-ups in a session to over 620; they found similar improvements in bench press, running, and cycling. And several teams--including the Raiders, Niners, Man United, and the Stanford football and track teams--have begun using it.

Given this level of improvement, one of the researchers said that the glove was "[e]qual to or substantially better than steroids … and it's not illegal." But should it be? And if not, returning to a question I asked when I first started blogging, why is the glove different from steroids or HGH or EPO or blood doping or other performance enhances that we have outlawed and decried? All use modern technology and modern scientific knowledge (the science behind cooling was not fully understood until 2009) to improve athletic performance. Athletes training with any of these have a technological advantage not available 10, 20, or 50 years ago.

The only apparent difference is the negative health consequences associated with steroids. But is that all there is? And in our new Libertarian Era, should that be enough?

Sexist New Coke?

About a year ago, Bic unveiled Bic for Her, a pen designed for use by women in that it is smaller and, oh yeah, pink and crystal and other pretty colors. And it costs $0.15 more per pen. Commenters on Amazon have been having fun with this one for a couple of days. Not sure why this is bubbling up now, although one publication speculated that the wave of back-to-school shoppers have noticed them.

More on mandatory tobacco warnings

A divided panel of the D.C. Circuit on Friday struck down FDA regulations requiring graphic warnings on cigarette packages, affirming, through different legal analysis, the district court and parting company with the Sixth Circuit, which upheld the graphic requirements. This case almost certainly will be in SCOTUS in March or April--we have a circuit split, one (divided) decision striking down a provision of federal law, and fundamental disputes about standard of scrutiny and the government's power to inform and influence the public through compelled commercial speech. In addition, reading the opinions shows how these compelled-speech concerns tie back to both mandatory ultra-sound laws and regulations of crisis pregnancy centers, so this case has much broader effect.

Presidential succession on TV

Presidential succession is a treasure trove for television plots. The West Wing featured six different storylines involving selection and succession of the president or vice president (some for drama, some necessitated by the untimely death of actor John Spencer).

This summer, we have been watching Political Animals, a cable mini-series depicting a thinly veiled Hillary Clinton (played wonderfully by Sigourney Weaver), divorced from a thinly veiled Bill Clinton, and working as Secretary of State for the man who beat her in the primary (who is not remotely reflective of Barack Obama). In Sunday's season finale, the Twenty-fifth Amendment returned as guest star.

Spoilers after the jump.

Air Force One crashes into the ocean off the coast of France and a rescue/recovery mission is under way; some bodies have been recovered, but not the President. The Vice President (who is a total sleaze and the political villain of the show) summons the Chief Justice to the Oval Office to administer the oath of office, which would make him the President. When told of this plan the Secretary of State races to find all the cabinet members and get them to sign a letter under § 4 of the Amendment, declaring the president unable to discharge his duties. The VP and the Secretary of State then have a showdown conversation in the Oval Office, in which she stresses the constitutional crisis that would arise if it turns out the president survived the plane crash and there were two presidents. The VP backs down and signs the letter (§ 4 requires the VP and a majority of the cabinet); the Secretary congratulates him on now being the acting president (but not the President) and the VP/AP shoots her an angry glare.

It was certainly done in a melodramatic fashion that was not poltically realistic. In reality, the Chief never would have even shown up at the White House or been prepared to administer the oath absent confirmation that the President was dead---he would not just have done it because the VP told him to. Or, if he were in the room, he certainly would have had something to say about whether the oath was constitutionally appropriate, rather than just standing there silently in the background (out of focus) as the two political leaders argue. Also, in reality, a VP would be highly circumspect before taking the oath (as Lyndon Johnson apparently was in 1963, albeit pre-Twenty-Fifth Amendment) and would want both certainty as to the president's condition and the public's mood; of course, the VP in this show is such a bad guy that his conduct is not surprising. Finally, since the possibility remained that the crash was  terror-related, every one of these public officals would have been sitting in the secret bunker, not in the White House or in Foggy Bottom.

Still, while the politics were not quite right (this is, after all, more of a soap than a political drama), they did get the Constitution right.

 

Why apologize?

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.

Fourth Circuit rehearing on crisis pregnancy centers

The Fourth Circuit last week granted rehearing en banc in a series of cases challenging municipal regulations requiring "crisis pregnancy centers" to post disclaimers identifying all the reproductive services (namely birth control and abortion or referrals for those services) that they do not provide. I wrote about the panel decision and Jennifer Keighly sharply criticized it. The core First Amendment issue is whether this is regulation of commercial speech or of a regulated profession in which disclosure obligations are generally permissible, although I believe these cases provide a nice compare-and-contrast with the litigation over mandatory ultrasound laws. There also are some underlying procedural problems involving converting 12(b)(6) to summary judgment and refusal to provide an opportunity for discovery.

No one wrote to concur or dissent from the grant of rehearing, not even from the panel members, so we do not know what anyone is thinking right now.

Sgt. Pepper's Lonely Hearts Mad Men, Part II

Two months late with this one, but after focusing on it in late June, I dropped it as the summer progressed. In May, I wrote about a series of posts by Emily Viviani, arguing that the recent season of Mad Men lyrically, thematically, and structurally used Sgt. Pepper's as a template.

In June, Emily wrote the final piece on the last three episodes of the season. I think the lyrical connections are a stretch. But I was particularly intrigued at the way season's penultimate episode functions as a mirror-image of the premiere--like the version of the song "SPLHCB" that opens the album and the reprise that is the penultimate song.

It is thought-provoking, if nothing else.

JOTWELL: Wasserman on several takes on cameras in the courts

I wrote the newest essay in JOTWELL's Courts Law Section, reviewing two new discusssions of video cameras in the Supreme Court--one by Nancy Marder in Arizona State and one by Lisa McElroy in BYU. Both are good articles presenting different takes from distinct perspectives.

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.

McCormick on SLU and law teaching

Marcia McCormick (SLU) at Workplace Prof Blog offers some thoughts on the dean mess at SLU and what it says about broader issues of legal education and the role and responibilities of law factulty.

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.

What is tenure?

As reported here, the Sixth Circuit recently held that a tenured professor at Thomas Cooley Law Schooldid not have permanent employment or a right to continuous employment, where the contract was only for a one-year term and did not provide for, or define, tenure. The court also read the ABA standards, which were incorporated into the contract, as exemplary and hortatory, and not as formal contractual definitions of tenure as lifetime employment in this contract. The court also held that a faculty review process held three years after the termination decision was sufficient process under the contract.

I always have considered myself to be on a one-year contract that is automatically renewable, except for cause and with certain contractual process rights, which seems to be what the Sixth Circuit is saying here. Do others define tenure differently?  Is this decision unique to the contract at issue and to Michigan law? Is this case really not about tenure per se (despite the tenor of the NLJ report) but about a conclusion as to what cause and process is sufficient for a school to fire a tenured professor?

Update: Jeff Hisrch comments at Workplace Prof Blog, calling the court's disregard for the ordinary meaning of tenure "troublesome" as a matter of ordinary contract law, doubting that anyone at Cooley believed or inteended that faculty could be fired at will at the end of an academic year. Jeff believes this is partly a product of the contracts at issue and most contracts specifically define tenure (or will going forward). One of my initial thoughts, confirmed by Jeff's post, is that under the Sixth Circuit's view, a tenured professor has less job security year-to-year than a professor on a long-term contract.

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.

Two Updates:

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.

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.

 

Are Sporting Setbacks Penalties or Punishments?

Sportswriter Bill Simmons discovered Team Handball, which always has been my favorite off-the-beaten-path Summer Olympic sport.

Now here's one for Dan: A few years ago, he was trying to incorporate into his punishment scholarship some analogies to penalties in football and how those are calibrated (something economists have also begun exploring in earnest after the strange ending to the last Super Bowl). Like hockey, players in handball have to sit out of the game for some period if they commit a foul. But handball calls these "punishments," the only sport (as far as I know) to use this terminology--a player is "punished" by having to sit out for two minutes.

Is penalty v. punishment a useful distinction--both for sports and for law?

Just the FACs: Fan Action Committees and Fan Support

Dan and I have an op-ed that just posted at The Atlantic, introducing the concept of "Fan Action Committees." The sports counterpart to PACs, these are vehicles for fans to pool money to give to star players (or donate to the player's favored charitable causes) to induce them to join or remain with a favored team. We take a particular focus on last week's Jeremy Lin/New York Knicks saga.

This presents the germ of an idea that we hope (along with sports law guru Mike McCann of Vermont) to expand into a longer essay. Comments welcome and encouraged. Thanks to Mike, Gregg Polsky (UNC), and Brian Galle (BC) for their comments.

Another jurisdictionality victory

This time it's the Sixth Circuit, holding that mandatory arbitration of minor disputes under the Railway Labor Act is not jurisdictional, applying Arbaugh's plain statement rule. (H/T: Reader and occasional commenter Asher Steinberg). Interestingly, this was a panel overturning circuit precedent, not the en banc court, a departure from circuit rules; the court explained that the departure was compelled by a specific Supreme Court decision, Arbaugh. This is a different approach than the Seventh Circuit recently took, where the shift was done by the full court, not in light of a single case, but in light of the general trend of Supreme Court precedent over the past few years.

Bearly Legal

This Slate article is three months old now, but I had been meaning to link to it for awhile. It discusses the "bear justice system" in Yellowstone National Park for grizzlies who kill or injure people. As the author explains the basic rules: "If a grizzly hurts someone while acting in a naturally aggressive way, then the bear goes free. If a grizzly acts unnaturally aggressive, though, and injures a person, it must be euthanized. It all comes down to the animal’s state of mind." The process involves a fascinating mix of CSI, psychology, and the rules of evidence, as well as the typical institutional fears of making the wrong decision (and the threat of lawsuits in the human justice system).