Tuesday, January 17, 2017
Antitrust or corporate speech?
Is this supposed plan among San Diego-area (and possibly Los Angeles-based) moving companies not to take any jobs related to the Chargers move to L.A. an antitrust violation? I know consumer boycotts are protected free-speech. But isn't an agreement among members of an industry not to engage in certain business behavior the anti-competitive collusion the antitrust laws prohibit? Is it different if the collusion is for expressive purposes? And if so, wouldn't that swallow the antitrust laws, because companies always would argue that their business decisions were driven by political concerns?
Besides what better captures the sadness of a franchise relocation?
Tuesday, December 20, 2016
A student-athlete tries the First Amendment
Noriana Radwan was a freshman soccer player at UConn in 2014, when she was seen flipping-off an ESPN camera during the team's on-field celebration after winning the conference championship. She was suspended indefinitely and stripped of her scholarship, then transferred to Hofstra. Radwan has sued UConn and the responsible officials in federal court. Her primary focus is equal protection and Title IX, alleging that male athletes have done worse and been reinstated). But Count IV claims a violation of the First Amendment, stating that her conduct was "offensive and inappropriate," but still protected speech by a private citizen on a matter of public concern.
It could be worth following the First Amendment piece.
Friday, December 16, 2016
And now Princeton swimming (Updates)
It is becoming increasingly easy for someone to win the Ivy League title in various men's non-revenue sports, because there are not going to be any more teams to compete against. Harvard men's soccer had its season canceled and its cross-country team placed on probation, and Columbia's wrestling team had a game canceled. And now Princeton's men's swimming and diving had its season suspended, pending an investigation into emails and other materials on the team listserv that were "vulgar and offensive, as well as misogynistic and racist in nature."
Princeton's AD explained (and justified) the action on the ground that "[w]e make clear to all of our student-athletes that they represent Princeton University at all times, on and off the playing surface and in and out of season, and we expect appropriate, respectful conduct from them at all times." The suspicion in these student-athlete cases, including among those who might be inclined to challenge such actions, is that student-athletes are like employees speaking as employees, with virtually non-existent free-speech rights under Garcetti. The Princeton statement reflects that idea. But no actual employee works under similar constraints, in which he is an employee 24/7/365 and in all contexts. So we again have student-athletes stuck in the worst of all possible worlds--limited in the same ways as employees, but enjoying none of the benefits and protections that true employees receive.
Further Update:Michael Masinter's comments reveal the problem for the students, which I had forgotten: Employees (assuming student-athletes should be treated as such) enjoy no protection for their private speech. Which may say more about the trouble with the employee-speech doctrine than anything. Or maybe future scouting reports will include a "Go Trump" at the end.
Sunday, December 04, 2016
Football rules question
I am a week late to this question about the end of last week's Ravens-Bengals game. Quick reminder: The Ravens lined up to punt from their own 22, with 11 seconds left. The punter took the snap and danced around with the ball, while his teammates committed multiple, blatant holds. The punter finally step out of bounds in the back of the end zone for a safety after time expired. The officials called the holding fouls and awarded the Bengals two points on the safety, but declared the game over, invoking the rule that a half cannot be extended on an offensive hold.
Here's my question: Rule 4, § 8, art. 2(g), on extending a half after time expires, states "if a safety results from a foul during the last play of a half, the score counts. A safety kick is made if requested by the receives."
It seems to apply here--the holding fouls produced a safety (because the punter was in the end zone) on the last play of the game. And the officials announced that the safety was a result of the holds, not the punter stepping out of bounds.
So why wasn't that rule invoked to give the Bengals a chance at a free kick? Why wasn't that rule applicable here?
Wednesday, November 23, 2016
Another random predictor: Ending sports droughts
Returning to random sports-related electoral predictors: It occurred to me that there is a correlation between teams (in all sports) breaking legendarily long championship droughts and Republican electoral success. Consider:
1980: Philadelphia Phillies win their first World Series, becoming the last original/non-expansion team to win a Series. Ronald Reagan wins the presidency, beginning the political regime in which we still find ourselves.
1994: New York Rangers win the Stanley Cup for the first time since 1940, a 54-year drought. Republicans take the Senate and the House (for the first time since 1954) in the Gingrich Revolution.
2004: Boston Red Sox win the World Series for the first time since 1918, an 86-year drought. George W. Bush reelected, surprising many pollsters and commentators.
2010: Chicago Black Hawks win the Stanley Cup for the first time since 1961, a 49-year drought. Republicans reverse most of the Democratic gains of 2006-08, retaking the House, closing the gap in the Senate, and ending Barack Obama's opportunity to achieve anything through the legislative process.
2016: Chicago Cubs win the World Series for the first time since 1908, a 108-year drought. And we know what happens in the election.
This is nothing we could use as a regular predictor, since legendary droughts are not broken that often. And, of course, we have to figure out how long or how much attention must be paid to make a championship drought "legendary." Still, the correlation is interesting.
Can people think of other examples? Are there counter-examples, in which some significant streak was broken and the Democrats achieved electoral success?
Saturday, November 19, 2016
2016 Election and random predictors
Apparently it was not only the polls that were fooled in this election. So were the random predictors/correlations, sports-related and otherwise.1) The World Series was wrong: A Republican won the presidency despite a National League team winning the Series. This is the first miss of the 21st century. It is now 17/28 overall, 12/18 since the end of World War II.
2) A twist on the World Series connection: In 8 of the years in which the Series winner predicted the election winner, the World Series went seven games. And those represent all 8 times a World Series had gone seven games in a presidential election year prior to 2016. The one time before this year that a Series went the distance without predicting the winner was 1912; that Series went 8 games (one game ended in a tie), with the AL Red Sox winning the Series and Democrat Woodrow Wilson winning the presidency. Seven-game Series are now 8/9 as a predictor.
3) Irony alert: The first World Series played in a presidential election year was 1908 (the World Series began in 1903, but was not played in 1904), when Republican William Howard Taft was elected. Which, of course, was the last time the Cubs won the World Series before this year. So we can look at this two ways: 1) When the Cubs win the World Series, a Republican wins the presidency, or 2) the Cubs just screw up the World Series/president connection.
4) The Washington Professional Football team was wrong. The team won its final home game before the election (beating the Eagles on October 16), which usually means the incumbent party retains the White House. This is now 17/20, although it has missed the last two years (the WPF lost its final home game in 2012, but the Democrats retained the White House).
5) Harvard and Yale were right. Yale beat Harvard today, which correlates (ex post, since the game is almost always played after the election is over--2000 was the lone execption) to a Republican president. This is now 21/33 historically, 10/13 since 1968, and 9/10 since 1980.
6) Finally, a semi-sports one: My daughter's Reform Jewish day school went overwhelmingly for Clinton. Looking at the schools attended by her seven basketball teammates (among whom the election was a regular subject of conversation between shooting drills): a Conservative Jewish day school, a public school, and a secular private school went strongly for Clinton; an Episcopal school went close for Clinton; and two Catholic schools went for Trump. Make what you will of those last bits of information.
Sunday, November 13, 2016
ULL suspends four players for caring about the election
I have written a few posts recently about the open questions surrounding the free-speech rights of college athletes. But these cases have generally arisen at private universities (Harvard soccer, Columbia wrestling) that may abide by First Amendment norms as a matter of courtesy, but not law. And those cases involved pretty disgusting instances of racist and misogynist speech that, one could argue has no value or runs afoul of other considerations (such as Title IX). I disagree with that conclusion, but it at least confounds the analysis.
But the constitutional issue has been teed up directly by the decision of University of Louisiana-Lafayette to suspend four football players after they recorded themselves in the locker room singing and dancing to a song that says "Fuck Donald Trump." Football coach Mark Hudspeth and the university expressed disappointment in the players' "immature behaviors" and the use of lewd language towards one of the candidates. Hudspeth also pointed out that none of the players voted, which has nothing to do with anything. Interestingly, he initially offered a partial defense of his players against those who have "vilified a few 19-year-olds making some immature decisions, and then they were the same ones that voted for someone that has done much worse by grabbing a female in the private areas for the office of the [president of the] United States of America." He backed off that on Friday, saying he regretted offending Trump voters. The school has not identified the four players.
If we are looking for a situation in which punishment triggers a genuine First Amendment claim, this is it. ULL is a public school, so the First Amendment is in play. The players were engaged in core political speech and it is unquestionable that the use of the word fuck and associated gestures as part of a political message is also constitutionally protected. The attempt to frame this as a problem with profane lyrics and gestures, apart from the political message, is unavailing. According to this piece, Hudspeth has made rap music part of the team culture, celebrating a 2011 bowl victory with music blaring in the locker room and having music playing over speakers during practice. And that includes rap songs containing profanity. So profane rap music is ok, as long as it does not offend a political candidate? It seems to me the First Amendment, if anything, demands precisely the opposite conclusion.
We now are left with the question of whether student-athletes are different than ordinary students because they play for, and represent, the school, making them more like employees. The university statement got at this in its statement when praising Hudspeth for "continu[ing] to educate the team on how their actions are a reflection of the name on the front of their jerseys." This is twisted in two respects. First, a university should be educating players less about the name on the front of their jerseys and more about their opportunities and obligations to be politically engaged citizens. You complain about young people and athletes not being engaged, they you punish them when they are. Second, even if student-athletes are analogous to employees, even public employees enjoy some protection when speaking as citizens on matters of public concern--this would seem to qualify.
This is moot, of course, since it is unlikely the players will challenge their suspensions. Which is too bad, because this looks like a situation in which the school has overstepped, both its role as an athletic institution and as an institution supposedly committed to educating the next generation of citizens.
Saturday, November 12, 2016
A post-election thought on athlete speech
This has been a significant year for athlete speech--Colin Kaepernick (joined by several other players) and national-anthem protests, the opening speech by four NBA stars (LeBron, Carmelo, Wade, and Chris Paul) at the ESPY Awards, protests against police violence by several WNBA teams, and everyone taking sides in the presidential election. It is ironic that this occurs in the year Muhammad Ali, one of the most significant activist athletes, passed away.
But reactions to the election results highlight an important qualifier to discussion of speech within sports--different sports feature and express very different political attitudes and ideas. When we think of athlete speech, we must parse it by sport and even role within the sport.
Consider recent comments by coaches in different sports about the election. Two NFL coaches--Bill Belichick of the Patriots and Rex Ryan of the Bills--were high-profile Trump supporters; Trump read a letter of support from Belichick at one of his final rallies on Monday. Meanwhile, three NBA coaches--Stan Van Gundy of the Pistons, Steve Kerr of the Warriors, and Gregg Popovich of the Spurs--reacted angrily to Trump's election. Kerr spoke about the difficulty of talking to his daughters and facing his players in the wake of the misogyny and racism of the campaign. Popovich, a thoughtful and well-read guy, went with empathy--"I'm a rich white guy, and I'm sick to my stomach thinking about it. I can't imagine being a Muslim right now, or a woman, or an African American, a Hispanic, a handicapped person"--and history, stating he feared we have become Rome.
The difference is explicable. The NBA is a "player's league" and is overwhelmingly African-American, so it makes sense that coaches would be more sympathetic to the targets of Trump's rhetorical ire. Meanwhile, football coaches all fancy themselves as George Patton, so their affinity for the authoritarian Trump is understandable.
Along the same lines, there was discussion earlier this fall about the absence of anthem protests in Major League Baseball. Adam Jones of the Orioles explained that baseball is a white sport, with fewer African-American players (8.3 % of players) who are easily replaceable and thus less willing to put themselves in position to get kicked out of the game by taking unpopular stands, especially within the game.
Friday, November 04, 2016
Locker room talk
One disappointing thing about the outcome of the Donald Trump/Billy Bush recording is that the Trump/GOP excuse of "it was locker room talk" stuck. I spent a lot of time in locker rooms, including around high-level college basketball coaches and players, in the '80s and '90s (a considerably less-enlightened time); I never heard anything remotely like that. There certainly was discussion, often graphic and crude, of women and sex and the attractiveness of various women. I never heard anything close to someone bragging about doing anything without consent or getting away with doing anything without consent.
All of which is a precursor for saying I am troubled by Harvard's decision to cancel the remainder of its men's soccer season (with the team leading the Ivy League and in line for an NCAA bid) over the team-created "scouting reports" of members of the women's soccer team. According to reports, 1) the original document that surfaced was from 2012 (talking about that year's freshmen, who have since graduated and spoken out about what the players did and said), 2) the current players said they were not doing this anymore and that the first one was an isolated incident, but 3) it turned out this is an ongoing team tradition, including by the current team. So it is not clear whether the decision to suspend the team is because of the report or because they were not forthcoming with the administration (although that might not matter).
Here is the thing: This is what "locker room talk" sounds like. Which is not to defend what they did. It is obnoxious and crude and disrespectful. And (although 21-year-old me probably would not have recognized this in 1989) it contributes to a culture and attitude of inequality between men and women. But such speech is not unlawful and does not (as far as the excerpts I have read) describe doing (or even wanting to do anything) unlawful. It also was not created for wide public consumption, although it was easily publicly discoverable and made available. In other words, the scouting report is, without question, constitutionally protected speech, not the kind of thing that would (or at least should) get regular students in trouble.* And in the absence of wrongdoing beyond general obnoxiousness and the utterance of misogynist ideas, canceling the season seems an extraordinary measure.
[*] Insert usual disclaimer about Harvard being a private institution not bound by the First Amendment and about Harvard possibly having greater latitude over speech by its employees/representatives.
Harvard's response triggers unfortunate comparisons to Duke lacrosse. Duke canceled the 2006 lacrosse season three weeks after the infamous party, although eleven days before any players were charged. Many people believe to this day that Duke was correct in that move. But given that it is beyond dispute that no sexual assault occurred, those who defend the suspension must believe that it was propr was based on nothing more than obnoxious, but entirely lawful, behavior by the players: Hiring an exotic dancer, shouting racial slurs in a verbal altercation (although this was disputed), and one player sending a violently misogynistic story around to his teams via email. In other words, no different than what Harvard has done here.
Thursday, November 03, 2016
Eamus catuli 000000
Of course, I am most happy because of what it (hopefully) portends for the presidential election connection--National League winner means Democratic president. So maybe I can stop panicking about that. (Of course, two of the times it has not held since World War II were 1992 and 1996, when an AL team won the Series but a Democrat named Clinton won the presidency). We will see in less than a week.
Meanwhile, I am going to celebrate and order some World Champions stuff.
Sunday, October 23, 2016
Five outs to go
I always have liked symmetry and patterns in events, not necessarily for signs but for fun coincidences. One under-reported thing over the years and at the time is that in 2003, the Cubs and Red Sox were each five outs away from meeting in the World Series. The Sox lead the Yankees with one out in eighth inning of Game 7, at which point manager Grady Little left a tiring Pedro Martinez in the game, the Yankees scored three runs to tie the game, and won the game and series in extra inning. The Cubs lead the Marlins with one out in the eighth inning of Game 6 (leading 3-2 in the series), before Bartman, an error on a possible double-play grounder by usually reliable shortstop Alex Gonzalez, and the collapse of pitching cost them that game. They never got closer to the Series than five outs. They then completed the collapse in Game 7, blowing a 5-3 lead. At the time, I though Five Outs to Go would be a great title for a book detailing both games in alternate chapters. The point became moot the following year, when the Red Sox won the World Series for the first time since World War I. Hopefully, it becomes more moot over the next ten days.
Still, I was most nervous last night came when Cub starter Kyle Hendricks got the first out in the eighth, then allowed his second hit of the game. Fortunately, the Cubs brought in closer Aroldis Chapman, who got a double play to end the inning, (finally) getting the Cubs closer than five outs from the Series. It was at that point I turned to my wife and said "Now I can relax."
Saturday, October 22, 2016
Cubs win! Cubs win! Cubs win! Holy Cow!
That is all.
Tuesday, October 18, 2016
How a non-infield fly shows the need for the Infield Fly Rule
During Sunday night's Cubs loss (sigh!) to the Dodgers in Game 2 of the NLCS, the Cubs ended the top of the sixth with a double play. With first-and-second/one-out, the batter broke his bat and hit a soft looping line drive towards Cubs second baseman Javier Baez. Rather than charging to catch the ball on the fly, Baez took two steps backwards, allowing the ball to fall at his feet. He then threw to shortstop Addison Russell covering second to get a force-out on the runner on first, then, after some confusion and hesitation by Russell, he tagged the runner on second heading to third following a rundown. (the play went 4-6-5-6, if you're scoring at home). The video is in the above link.
The Infield Fly Rule was not invoked on the play, properly. The rule by its terms does not apply to line drives and umpires only will invoke it if the ball travels in a parabola with sufficient arc and height. This was a "humpback liner" (a cross between a pop-up and a line drive that stays low, then drops straight down); it can sometimes can be tough to judge, although this ball was obvious, given how low it was.* In fact, the ball was hit so low that Baez played it more like a groundball.
[*] I have been surprised by hearing several knowledgeable commentators complimenting the umpires for wise judgment in not calling infield fly on the line drive, ignoring that this is not a judgment call. The ball plainly was a line drive to which the Rule cannot apply.
The Cubs turned an odd double play on it, in part because other infielders seemed confused. Baez threw to Russell, who initially came across the bag and looked like he would throw to first. It is not clear why he did not follow through--whether the batter was too far up the line (unlikely, given how low the ball was, but it is impossible to tell from any video I have seen) or whether the runner on first was standing in the basepath, blocking the throw (and calling to mind a historic World Series controversy). Alternatively, Russell should not have caught the ball on the base, but instead might have tagged the runner on second before stepping on the base to force the runner on first. And a third alternative would have been for Baez to throw to third base to get the lead runner, then the third baseman to throw to second to complete the double play.
A couple thoughts.
First, line drives are excluded because most are hit too hard and straight, so they will not fall as easily at an infielder's feet. But this play shows that by excluding line drives from the Infield Fly Rule and allowing this type of double play, some unexpected and unfair double plays may arise on just these soft liners. The question is where to strike the balance, based on whether there are more hard liners that travel through the infield if not caught compared with balls like this.
Second, although infield fly was properly not invoked, the play shows why we need that Rule. This double play would be both easier and more common if an infielder could do the same thing on a soft pop-up that would fall at his feet, leaving the baserunners similarly hung up. We see how gently the ball falls to the ground and how easily and slickly a good infielder can scoop the ball off the ground and make the necessary short throw. Without the Infield Fly Rule, we would see infielders making this move on most (if not all) soft, high pop-ups.
Tuesday, October 11, 2016
Greenberg, Koufax, and Yom Kippur
I have an essay today in Tablet Magazine, When They Were Kings: Greenberg and Koufax Sit on Yom Kippur. The piece compares Sandy Koufax and Hank Greenberg in their respective decisions not to play on Yom Kippur 31 years apart. I argue that Greenberg's decision was especially significant given the different, and more precarious, position of Jews in America and the world in 1934 compared with 1965. The essay elaborates on what I wrote here last Yom Kippur, on the fiftieth anniversary of Koufax sitting out.
Wednesday, August 17, 2016
More sports rules and perverse incentives
Good stories in Slate and NY Mag about the zero-tolerance false-start rules in Olympic track, under which a racer is disqualified if he false-starts. This is the third version of the Olympic rule. Pre-2003, each runner was allowed one false start and was disqualified only on the second. In 2003, the rule was changed to give the entire field one false start, with a DQ imposed on whoever does the second false start. The current rule was enacted in 2010, making this the second Olympic games under that rule; we have seen two DQs this week, although not by any favorites. Usain Bolt wass DQ'd under the rule at the 2011 World Championships, the only Olympic or world championship final he has lost since 2008. French hurdler Wilhem Belocian was DQd earlier this week and was seen falling to the track in tears, but he had qualified seventh out of eight runners.
The 2010 rule change was designed, at least in part, to eliminate perverse incentives. Slower runners would intentionally false start, using up the "freebie" for the field. This forced faster starters and runners to be a bit more cautious, and thus to hesitate just a bit off the blocks, lest they pick up that second false start that would disqualify them. The new rule eliminates the intentional false start by eliminating the benefit, and thus the incentive, for the slower runner to do this.
This sounds a bit like the logic behind the Infield Fly Rule: 1) Runners were gaining a potentially big advantage (slowing down the fast starters/runners) through the intentional false start; 2) The faster runners could not really counter this move, except perhaps by not false-starting following the intentional freebie; 3) slow runners were intentionally acting contrary to expectations (you do not want to false start); and 4) the advantage offered a perverse incentive to the slower runners to intentionally false-start (although not a great one--the trick did not work very often). The second prong is weak--the faster runners could counter the strategy by not false-starting, something they could do more easily than runners can avoid a double play on an uncaught infield fly. But this is an interesting comparable situation that is worth including in my discussion of similarly justified rules in other sports. [Update: On further thought, that second prong is not weak and this is precisely the same as the I/F/R situation. The only way to counter the intentional false start was for the faster runner to slow down his start--but that is precisely what the false-starter wants]
This situation shows the role that aesthetics play in creating sports rules. Rulemakers could have disincentived intentional false starts by returning to the old rule of giving every runner one freebie. But that old rule created problems of multiple false starts by multiple runners, causing long delays, fan boredom, and television overruns. So the new rule, while harsher, is aesthetically favorable to the sport.
Finally, runners and rulemakers have minimized the effect of the harsh rule. All runners slow down their starts a bit to avoid the risk--Bolt, never a fast starter, has slowed his start even more, relying on his remarkable ability to dominate the last 30-40 meters (as he did in winning gold in the 100m this week). And the rulemakers narrowed what qualifies as a false start to exclude flinches and twitches, so a runner false-starts only if his feet leave the starting blocks or his hands leave the track.
Wednesday, July 13, 2016
NBA changes to stop Hack-a-Shaq
The NBA on Tuesday announced rule changes designed to limit the "Hack-A-Shaq" strategy of intentionally fouling bad free throw shooters away from the ball. Beginning next season, all fouls away from the ball in the final two minutes of every quarter will result in one free throw and the ball out of bounds for the offensive team (this has been the rule for the final two minutes of the fourth quarter). The same rule will apply to fouls on inbounds plays (the new rage was jumping out of bounds to foul the inbounder). And jumping on a player's back during a free throw (a recent development used in the final two minutes) will be deemed a flagrant foul, punishable by one free throw and the ball, plus possible future punishment of the fouling player for repeated violations.
Unfortunately, I am not sure this gets the NBA where it wants to be, because it does nothing to deter Hack-a-Shaq outside the last two minutes of a quarter. Perhaps the league had statistics showing that the strategy was more prevalent in those times. But the rule change does nothing to stop the reductio of the strategy--a January 2016 game in which the Houston Rockets intentionally fouled DeAndre Jordan of the Los Angeles Clippers twelve times in a row (four times, using an end-of-the bench player, to put them in the bonus and eight times to put Jordan on the free throw line) at the beginning of the third quarter. I still believe the better rule would be to give the offense the choice of shooting the free throws or taking the ball out of bounds for off-the-ball fouls. Presumably, teams will choose the latter option for all but their best free throw shooters, thereby eliminating the perverse incentive to intentionally foul, at least away from the ball. But the NBA went a different way, given us temporal, if not complete, relief from this eyesore.
Update: This Deadspin piece makes a fair point: Hack-a-Blank only becomes worthwhile if the hacking team is in the bonus following the fourth foul of the quarter, so that the hacked player would shoot. If a team is otherwise playing good defense and the game is not being called unusually close, that may not happen until 6-8 minutes into the quarter. So the window left for Hack-a-Blank is not the first ten minutes of a quarter, but maybe only a 2-3 minute window before the last two minutes. Teams typically do not do what the Rockets did in the game described above, hacking right from the beginning of the quarter, using an end-of-bench player only to commit a succession of fouls; this is what drew so much attention to that game.
Friday, July 01, 2016
Against "God Bless America" at ballgames
Aside from the atheism, I could not have said this any better and could not agree more.
Saturday, June 04, 2016
Muhammad Ali and the Law
Some law-related thoughts following the death of Muhammad Ali.
Ali's direct contribution to U.S. law is the Supreme Court decision (in a case captioned Cassius Marsellus CLAY, Jr. also known as Muhammad Ali) reversing his conviction for refusing Army induction. It was a per curiam opinion, decided on fairly narrow grounds, so nothing that would become canon or significant precedent. Ali had sought a conscientious-objection exemption, which at the time required that the person have a sincere, religiously grounded objection to war in any form. Although a hearing officer found all three elements satisfied and recommended to the Appeal Board that his status be recognized, the Department of Justice wrote a letter to the Board recommending rejection of status, based on DOJ's purported findings that Ali failed to satisfy any of the three elements. The Appeal Board denied c/o status, disregarding the hearing officer's recommendation and without explanation, although the only other available basis was the DOJ letter. Before the Court, however, the government conceded that Ali's objection was sincere and religiously based. That brought the case within precedent holding that when the basis for a selection-service (or any other government) decision is uncertain but some possible bases are unlawful or erroneous, the entire decision must be vitiated. Rather than speculating whether the Board might have relied on the one remaining basis (the objection not being to war in any form), the Court rejected the Board's decision in toto and reversed the conviction. Justice Douglas concurred; he argued that the evidence showed Ali objected to all but Islamic war against nonbelievers, a "matter of conscience protected by the First Amendment which Congress has no power to qualify or dilute" by limiting c/o status only to those who object to all war in all forms. Justice Harlan concurred in the result, concluding that the DOJ letter could be read as claiming that Ali's assertion of C/O status was untimely, an error that called for reversal under the same line of cases as the majority relied on. The inside-the-Court workings leading to the decision were the subject of the otherwise-silly Muhammad Ali's Greatest Fight.
Ali is lionized for this stand, often through the modern laments about professional athletes refusing to take political stands or become politically involved the way Muhammad Ali did. But this has always seemed unfair. Ali was not lionized at the time. His actions were unpopular with the press and much of "mainstream" America (which did not like Ali to begin with, regarding him as an uppity loudmouth). The exception was African-Americans and young anti-war activists on college campuses. He was stripped of the heavyweight title and denied a license to fight in any state, most importantly New York (Madison Square Garden remained the center of the boxing world), costing him 3 1/2 years at the prime of his career. Although ultimately vindicated by SCOTUS, it came at tremendous cost to his career. Modern athletes asked to take political stands almost certainly do not face similar exile from their sports. But to normalize Ali* as the expectation for high-profile athletes seems unfair, a burden we do not place on other people, even other famous people, anywhere else in society.
[*] The other person forwarded as the aspiration is Jackie Robinson. But Robinson was somewhat forced to take a stand by circumstance--being the first African-American player in modern baseball made him inherently political. And the abuse Robinson took no doubt took a psychological and physical toll that contributed to him dying at age 53.
Update: Case in point from the Daily News, extolling Ali for "offer[ing] a roadmap for today’s athlete to be an activist," while 1) eliding that in 1967, this columnist almost certainly would have been lining up to excoriate Ali for talking to much and dodging the draft, and 2) perpetuating the idea that the only true activist is the one who sacrifices millions of dollars and the prime of his career, something we ask of no one else. The Big Lead provides a good critique. At the same time, it understates the point in saying "[t]here are few, if any, athletes who can match Ali’s legacy fighting for social issues. That’s what made him such an important figure." Ali's legacy is, in part, a unique product of circumstances and initially unlawful action by the United States. That is why no one can match it.
Further Update: This Slate piece goes into detail on a lot of these themes, including more background on DOJ's efforts to influence the Appeal Board and on the prosecution, which were influenced by congressional and administration pressure.
Sunday, April 17, 2016
Not an infield fly
On Sunday, Tigers second baseman Ian Kinsler* intentionally failed to catch an infield pop-up with a runner on first and none out, in order to get a force out at second base on a speedy runner at first, replacing him with the batter, a slower runner. (Video in the link). After some initial confusion, the runner at first was called out and the batter was on first base.
[*] Apropos of nothing, Kinsler is Jewish, so this ties back to the ongoing fascination with the presence/increase of Jewish athletes.
Some comments after the jump.**
• The Infield Fly is not involved here, despite the initial shouts from the announcers (more on that below), because there were not force outs in effect at multiple bases. That rule is designed to prevent a double play on the stuck base runners (as opposed to a base runner on the batter running to first base). Absent that risk, the IFR does not control. Instead, R. 5.09(a)(12) (also known as the "trapped ball rule") prohibits an infielder from intentionally dropping a ball with a force out in effect at any base, although the rule does not apply where the infielder allows the ball to drop to the ground untouched.
[**] (Yes, this is a post about baseball rules--the laws of baseball, if you will--a subject I have been writing about at Prawfs since I started here in 2007. If you do not like baseball or do not want to read about baseball on a law blog, feel free to skip the post.
• It is not clear where the confusion came from initially. The only possibility is that the first base umpire believed Kinsler had touched the ball and intentionally dropped it, although the video makes clear that the ball fell to the ground untouched. But the umpires conferred and got it right.
• This is the same play that originally triggered the creation of what became the infield fly rule in 1894. Hall of Fame shortstop John Montgomery Ward pulled the same move in an 1893 game order to replace a runner on first with the batter, who had the "speed of an ice wagon." Decrying the deception, trickery, and poor sportsmanship (in 19th century conceptions) the play reflected, baseball officials outlawed the play in 1894. Over the next decade, they came to realize that the problem was this play being made when there were two force outs in effect and the defense could turn a double play; what became known as the Infield Fly Rule evolved in that direction.
• Critics of the IFR (most recently Judge Guilford in Penn Law Review) point to this situation to show that baseball otherwise tolerates players intentionally not catching balls in search of greater advantage. My response is that the cost-benefit disparity is not nearly as great, since the defense still only gets one out in this situation (as compared with two outs when there are multiple forceouts, and thus the IFR, in effect). As a result, the incentive to try this play is not as great, given the relatively marginal benefit of exchanging individual base runners, the relative rarity of genuinely wide disparities in speed, and the deemphasis on base-stealing in our advanced-metrics times. Part of the reason Kinsler's play will draw attention is that infielders do not try this all that often, because the benefit is typically not worth the risk.***
[***] A batting team has a run expectancy of about half-a-run from having a runner on first and one out (meaning it scores an average of .5 runs from that situation to the end of the inning); that number does not move dramatically with a faster runner.
• Announcers are clueless about baseball's rules. The Astros announcers initially believed the umpire had called Infield Fly, downshifting into a discussion of why that rule should not apply here. The Tigers announcers recognized what Kinsler was trying to do, but then started talking about how he did not "sell" the play well enough, ignoring (or unaware) that because he never touched the ball, he did not have to sell anything.
• Although this is not an infield-fly situation, watching the play illustrates how likely a double play would be in that situation absent the rule, at least on balls hit to this area of the field. Watch the play--see how the ball falls at Kinsler's feet, takes a small bounce, and comes to a rest at his foot; see how easily Kinsler picks up the ball and flips it softly to second. It is easy to imagine, in an infield-fly situation, a fielder picking this ball up and making a hard throw to third, followed by a relay to second that produces a double play, all before the base runners can even begin moving. Having the IFR means we generally cannot test the actual likelihood of the double play that the rule seeks to prevent; a play like this gives us a little bit of an idea.
Tuesday, March 22, 2016
Debating the Infield Fly Rule in Penn Law Review
In December, Penn Law Review published A Step Aside: Time to Drop the Infield Fly Rule and End a Common Law Anomaly, by U.S. District Judge Andrew J. Guilford and his law clerk, Joel Mallord. While there have been rumblings in many places against the Infield Fly Rule, this was the first full, sustained scholarly critique of the rule. My response, Just a Bit Aside: Perverse Incentives, Cost-Benefit Imbalances, and the Infield Fly Rule, has now been published on Penn Law Review Online.
Saturday, March 19, 2016
Video and getting a call "right"
I have always been against instant replay, being one of those who enjoys the "human element" and the "flow" of the games. I recognize the countervailing argument for getting it "right" by available means. But this play, from St. Joseph's NCAA Round One victory over Cincinnati last night, calls into question what we mean by getting it "right." Cincy's game-tying dunk at the buzzer, initially called good, was waved off following video review. Beginning at the 2:00 mark, you can see the extreme slow-motion/frozen video that showed he still had his hand on the ball (pushing it down through the rim) when the red light went on.*
[*] Leave to one side the oddity that dunking the ball worked to the player's disadvantage in this instance, by requiring him to keep his hand on the ball longer than if he had shot a lay-up or dropped the ball through the hoop from above the rim (as players did during the NCAA's absurd no-dunking days from 1967-76).
But we only could see the "right" call via video slowed to a speed so far beyond the ability of the human eye and brain. Do we really need college basketball games to be decided by such super-sensory means that establish correctness at a meta-physical level? Is it fair to say the refs got the call "wrong" initially, when the wrongness could be established only by this extreme use of video? And should we understand the "truth" of what happened by what we can perceive with our senses or by what video reveals at that heightened meta-physical level?**
[**] Recall that the lawyers who successfully defended the LAPD officers in the Rodney King beating in state court did just this with that video: Slowing it down to the frame level so as to reveal movements by King that might have shown continued resistance, even if there was no way anyone could have perceived them. This strategy has only become easier with the advances in video technology.
Wednesday, March 16, 2016
In January, I wrote about a Wisconsin high-schooler who was suspended for criticizing new state "guidelines" regarding cheering at sporting events. Among the proscribed cheers was "air ball." Josh Levin of Slate properly calls this the greatest taunt in sports and explores the most common version of its history, which traces to an infamous game between North Carolina and Duke in 1979.
Friday, February 05, 2016
More intentional fouls
Following on my earlier post, NBA Commissioner Adam Silver now says he will have the league's Competition Committee explore ways to restrict the practice, explicitly recognizing it as an aesthetic concern. But any rule has to consider all responses and downstream consequences. For example, the first corrective was that off-the-ball fouls in the last two minutes of the game result in the fouled team shooting one free throw and keeping the ball; coaches have responded by having players jump on the bad shooter's back on a free throw attempt, which is considered a loose ball and not subject to that rule. Proposals have included limiting the number of times a team can do it, given the shooting team the option of getting the ball out of bounds (my preference), or giving the fouled team an extra free throw, to be taken by any player (a version of something suggested by a commenter to my earlier post).
Something to watch this off-season, especially to the extent the making of sports rules can tell us something about the making of laws.
Friday, January 29, 2016
Intentional fouls and limiting rules
The NBA practice of intentionally fouling a poor free-throw shooter away from the ball (and the entire play) is spreading. Last week, the Houston Rockets began the second half by having the same player foul an opponent's poor shooter five time in eight seconds. Last night, two different teams fouled someone before he could throw the ball inbounds. This season, 27 players have been subject to the "Hack-a-_____." In October, NBA Commissioner Adam Silver announced that, although the league has been studying the issue, it was not considering rule changes to stop the practice.
Critics of the Infield Fly Rule often point use this situation to argue against the IFR, insisting that the situations are the same and, if basketball does not require a special rule, neither should baseball. But the argument does not work because the situations are not the same. Like the infield fly, "Hack-a-____" involve teams intentionally acting contrary to their ordinary athletic interests (defenders ordinarily do not want to foul, especially a player who is uninvolved in a play and no threat to score); it gives one team an advantage over the other (statistics of points-per-possession show that a good offensive team is substantially worse off having its worst FT shooter shoot over and over than running its regular offense); and the advantage is great enough that teams have the perverse incentive to keep doing it (hence the reason the strategy is spreading). But "Hack-a-____" lacks the necessary substantial imbalance in control over the play--the fouled team can counter the strategy by making their damn free throws, or at least more of them to render the strategy no longer worthwhile. Limiting rules do not exist to save teams and players from themselves or their own shortcomings.
Instead, any rule to stop this practice would be for aesthetic purposes, not cost-benefit balance. The game becomes ridiculous and boring to watch (watching a parade of free throws is bad; watching a parade of missed free throws is worse). Eventually fans might get sick of what they are watching. To be sure, some aesthetic concerns underlie the IFR; we would rather see players catch easily playable balls than not catch them. But the IFR situation also involves an extreme cost-benefit imbalance. Aesthetics provide the sole basis for eliminating intentional fouls.
An interesting question is what any limiting rule might look like for the NBA. My proposal would be to give the offense a choice following an off-the-ball intentional foul--shoot the free throws or get the ball out of bounds. All fouling would give the defense is a chance to steal the ball on the inbounds play, although steals or turnovers on such plays are relatively rare, while incurring the cost of running up their foul totals. This change should eliminate the perverse incentive; there is no incentive for the defense to intentionally foul when the benefit is a small chance of getting a turnover on the inbounds play, but little or no chance that the offense will choose to have the bad shooter go to the line.
Tuesday, January 26, 2016
The Third Team at the Super Bowl
On Sunday night, my beloved Denver Broncos and the Carolina Panthers punched their tickets for Super Bowl 50. Both teams should be proud. The Broncos have spent months working together to gel as a team to reach this moment, and the Panthers no less. But the outcome of the game may ultimately rest on the teamwork of another group in the field, a group that will have barely worked together at all. I’m talking, of course, about the officiating crew.
National Football League officiating crews generally remain together through the regular season: the same officials work together (at different venues) each week. Once the playoffs start, however, the highest graded officials at each position are chosen to continue working games, and they are reshuffled into new “All-Star-style” crews. The crew assigned to the Super Bowl (headed this year by referee Clete Blakeman) gets one divisional round game as a warm-up, but that’s it. The officials who take the field on February 7 are among the very best individually at their positions, but their performance as a group is a much greater unknown.
Does it matter? Cognitive psychology says yes, and the lessons carry broadly into many realms of law.
We often ask groups of people to make decisions based on distributed information. This means simply that each member of the group has some information that may be pertinent to the decision, but no single person has all the information. Each group member must share his or her information so that group as a whole can make informed decisions. Trained professionals often deal with the phenomenon of distributed information by coordinating their information acquisition and sharing in precise ways. For example, a surgical team assigns certain team members to monitor specific aspects of the patient’s condition during the procedure, and adopts protocols for communicating that information to the entire team. Similarly, a cockpit crew can safely land an airplane by assigning each crew member to monitor specific information (speed, altitude, weather conditions, control tower transmissions, etc.), and by sharing that information through coordinated discussion, even though no single member of the crew is aware of all the relevant information at any given time.
In the legal world, decisions based on a distribution of information are also a regular occurrence. Jurors pick up different details and nuances of evidence and witness testimony, and must reassemble it though memory and communication upon returning to the jury room. Appellate panels, administrative boards, and rulemaking bodies work in similar ways, although they have better access after the fact to artifacts like briefs and transcripts. The precise order and timing of how information is communicated may not be as important in a jury room as in an operating room, but the general idea is the same. The quality and efficiency of group decisions depends in large part on the group’s ability to identify, share, and process the information they collectively possess.
The ability to share and process information is affected by the interpersonal dynamics of the group in question. For example, group members who work together regularly are more likely to develop shared mental models of the group’s purpose and customs. Shared mental models create a shared baseline of understanding, which allows the group to sift through information more efficiently, and which encourages group members to share the information that they know the group will deem important for the decision-making task. Shared mental models can therefore promote decision-making consistency. If all officials on the Super Bowl crew adopt the “let ‘em play” mentality when it comes to pass defense (or conversely, universally adopt the “everything is pass interference” mentality), some of the calls may be incorrect, but at least they would be consistent within the game. If one official on the crew has a much more stringent view of what constitutes pass interference than another official, however, the structure of penalties within the game can seem erratic or biased, or it may take longer for the crew to agree on the correct call.
But if familiarity within the group is so helpful, why not just use the best overall officiating crew from the season? The NFL actually tried this for a couple of Super Bowls in the mid-2000s, but reverted to the “All-Star” crew approach in 2006. The problem here is that group familiarity breeds its own cognitive challenges. Shared mental models may cause group members to disregard (or fail to share) external information that is outside the scope of the shared mental model. So an officiating crew that tends not to call pass interference stringently in its first few games of the season may develop a collective (if unspoken) understanding not to call pass interference except in egregious instances. That may lead to some true instances of pass interference not being called in the playoffs, when it matters most.
The NFL’s playoff officiating policy seems to be an effort to balance the costs and benefits of distributed cognition in familiar groups. To assure consistency in calling penalties, playoff officials must have sufficiently similar mental models of the game (the pace, the type of calls that are appropriate, etc.). But to assure accuracy in calling penalties, officials must be willing to share amongst themselves everything they see, even if it conflicts with what others may have seen (or not seen).
Clete Blakeman and his new team will be put to the test in two weeks. (Hopefully he can learn how to flip a coin by then.) Here’s hoping they achieve both accuracy and precision in their calls. But if the cognitive task proves too much, here’s hoping they err in favor of the men with horses on their helmets.
Thursday, December 31, 2015
Should the NFL Hall of Fame Selection Criteria Include a Character Clause?
The NFL, as in other major league sports, has faced its share of scandals. The Baseball Hall of Fame includes Rule 5, the character clause, in its eligibility for enshrinement. The direction requires that "[v]oting shall be based upon the player's record, playing ability, integrity, sportsmanship, character and contribution to the team(s) on which the player played." A discussion can be found here. Here is a dissent to the requirement.
The NFL selection process for the Hall of Fame focuses solely on a players contribution on the field. The NFL Commissioner has previously expressed an opinion that some form of an ethics consideration should be included. As the League has faced some notable problems with off the field behavior, it should include such a clause to reinforce to the participants and the public that violations of its rules and the law are not tolerated.
Monday, December 28, 2015
Should Tort Law be Used to Reinforce Intentional Violations of NFL Rules Aimed at the Safety of Players?
The NFL has been promulgating rules to make the game safer for players. Of particular focus is the reduction of head injuries leading to concussions and long term brain damage. Odell Beckham, Jr., the star wide receiver for the New York Giants, had his 1-game suspension by the League upheld on appeal.
Beckham and Carolina Panthers corner back Josh Norman were involved in aggressive dust ups during the teams' meeting a week ago. The provocation was so bad it resulted in multiple personal foul penalties and fines. Only Beckham received a suspension from the NFL. One of the reasons for the harsher penalty was a helmet to helmet collision with Josh Norman on a running play. It was also the second infraction from Beckham. He was previously fined for his in-game conduct from the Giants' matchup with the Buffalo Bills earlier in the season.
This brings us to the seminal case of Hackbart v. Cincinnati Bengals (a staple of Torts textbooks). The case involved a hit on Broncos' corner back Dale Hackbart by a Bengals wide receiver, which did not result in a rules infraction or foul on the play. The non call was the result of the officials not seeing it. The hit was also found to be intentional. The Court of Appeals overruled the trial court's ruling that violence was inherent in the game of football, and, thus, Hackbart could not recover.
The intention is not create an off field litigation industry aimed at professional football complete with lawyer advertisements. Rather, in egregious cases (of which I am not commenting on the Beckham case one way or the other), tort law may serve as a basis to reinforce the rules. Generally, a player should be disciplined by the NFL after receiving due process (please see my earlier post, "What the NFL Can Learn from Administrative Law").
Friday, December 18, 2015
Klein and NFL Officiating
I no longer watch football, particularly the NFL; the league is just too corrupt and the sport just too gladiatorial for my taste. But I cannot avoid news stories related to the league. I was interested in the league's announcement this week that, in the wake of increasing criticism of the game officiating this season (that may or may not be justified), game officials would be in contact the league vice president of officiating during games about replay and other "administrative" matters. This has sparked concerns among many, including the former VP of officiating, about the lack of accountability and increase in uncertainty from having a league official whispering into the ref's earpiece. One former official worried that we could not know whether a changed call was because the game officials got together or because "someone in New York doesn't like the call." As another former official said, "what it looks like is that the league office is making decisions on who possibly wins or loses the game."
The last concern sounds in the sports-officiating equivalent of United States v. Klein (which returns to SCOTUS later this term with a case challenging a law that may actually be unconstitutional for the first time since 1872): Just as Congress cannot dictate specific decisions or outcomes in specific cases, the NFL should not be telling officials what calls to make or how to apply the rulebook on specific plays in a specific game.
Monday, December 14, 2015
What the NFL Can Learn from Administrative Law
Problems with off field behavior have long plagued the National Football League (NFL). A study of player arrests since 2000 shows 713 reported incidents where players had run ins with the law as reported by the media. As these incidents have become more high profile, the NFL Commissioner's power over player misconduct has come under scrutiny. The case involving Minnesota Vikings running back Adrian Peterson was upheld by an arbitrator. However, other cases involving Greg Hardy, Tom Brady, and Ray Rice were overturned or penalties reduced in Federal court or by an arbitrator. While prior to the current Collective Bargaining Agreement (CBA), the Bountygate sanctions (as applied to the players, not the coaches) were overturned.
Recently, in Hewitt v. Kerr, the Missouri Supreme Court questioned the impartiality of an arbitration process where the Commissioner directly appoints the arbitrators. The Court stated:
"Our recognition of the potential for very real bias is not intended to impugn the integrity of the Commissioner or his appointee. However, the very nature of bias is often subtle and unseen to the person or persons holding such bias. For that reason, it is imperative that an arbitration proceeding be overseen by an arbitrator selected in an objectively impartial and unbiased manner."Further discussion on Hewitt v. Kerr can be found here.
The issue here is how can the provisions of the CBA with respect to player misconduct be revised in a way that strengthens the Commissioner's decisions. The answer can be found in governmental administrative appeals.
First, the NFL Commissioner has had general authority over player conduct since 1968. The relevant part of Article 46 of the CBA in effect now is as follows:
Section 1. League Discipline: . . .
(a) All disputes involving a fine or suspension imposed upon a player for conduct on the playing field . . . or involving action taken against a player by the Commissioner for conduct detrimental to the integrity of, or public confidence in, the game of professional football, will be processed exclusively as follows: the Commissioner will promptly send written notice of his action to the player, with a copy to the NFLPA. Within three (3) business days following such written notification, the player affected thereby, or the NFLPA with the player’s approval, may appeal in writing to the Commissioner.
* * *
Section 2. Hearings:
(a) Hearing Officers. For appeals under Section 1(a) above, the Commisioner shall . . . appoint one or more designees to serve as hearing officers. . . . [T]he Com- missioner may serve as hearing officer in any appeal under Section 1(a) of this Article at his discretion.
Article 46 vests discretion with the Commissioner who may hand down the sanction before a hearing. If the decision is appealed, the Commissioner has the discretion to appoint himself as the hearing officer. The initial decision is being made at the top subject to appeal. Generally, in the government context (local, state, or federal), the initial decision is made at a lower level, and then appealed to a hearing officer. Further appeal may be made to the head of the agency, which is then accompanied by an administrative record. In the Federal context, ultimate appeal of a Final Agency Order is to the Court of Appeals.
In the case of the NFL, the Commissioner, while the head of the NFL, is making an initial decision to be appealed. This may lead to scrutiny of the Commissioner's initial order. The NFL could amend the CBA to allow a player to elect a hearing at the initial stage of the discipline process. The appeal would then proceed to the Commissioner who would decide it based on the record established at the hearing. This would provide greater due process and strengthen the Commissioner's role by being the final arbiter.
To address the bias question posed by the Missouri Supreme Court, arbitrators should not be appointed by the Commissioner. Rather, they should be permanent employees of the NFL for that sole purpose. The hiring of hearing officers should be made jointly by the NFL and the NFL Players Association. Removal could be limited to cause.
These changes will only strengthen the Commissioner's authority as he will be reviewing the appeal. His authority will not be subject to the perception that it is waning every time he is overturned. A change in the selection of hearing officers will provide a sense of impartiality.
Pete Rose remains banned from Major League Baseball
MLB Commissioner Rob Manfred announced today that it would not reinstate Pete Rose, concluding that Rose had not presented credible evidence that, if reinstated, he would not again violate the prohibition on gambling on baseball games and on his own team. Manfred emphasized both that Rose continues to bet on baseball and that he has not fully owned up to the full scope of the gambling activities that lead to the ban in the first place (for example, he continues to deny betting on Reds games as a player in 1985-86, despite records indicating that he did, and he continues to insist that he did not selectively bet on the Reds, which is contradicted by documentary evidence). There also is an interesting discussion of how the commissioner should reconcile the mandatory lifetime ban imposed for gambling under Rule 21 with the broad discretion vested in the commissioner under Rule 15 to reinstate a suspended player; Manfred's solution was to say that reinstatement was warranted under Rule 15 only with "objective evidence" that there was no risk of a repeat violation of Rule 21.
Manfred also took a short detour to emphasize that he was not making any determination about Rose's eligibility for the Hall of Fame and that any debate over his eligibility or qualifications "must take place in a different forum" and turn on different questions and policy considerations. This is only partially right, of course. Rose is not in the Hall almost almost entirely because of Rule 3E of the Baseball Writers Association of America Election Rules, which provides that "Any player on Baseball's ineligible list shall not be an eligible candidate;" that rule was passed in 1991 (two years after Rose accepted his lifetime ban) specifically to eliminate any chance that Rose (and, to a lesser extent, Joe Jackson) would slip into the Hall. So while Manfred was not deciding whether Rose is eligible, his decision here basically dictates the outcome of the Hall vote.*
* Hall criteria include integrity and sportsmanship, so there is a chance that sportswriters might decline to vote Rose in because of his gambling misconduct, even if he were not on the ineligible list, just as they have kept out suspected PED users (Clemens, Bonds, etc.) who remain on the eligible list and thus eligible for the Hall.
Apparently, crowdfunding can rely on the adage, "the way to a man's heart is through his stomach." A Baltimore crab house has offered Orioles star Chris Davis free crab cakes for his life and for the next two generations of his family for re-signing with the Orioles. It reminds me that we might have underemphasized the purely symbolic value and benefit to fanfunding. It need not be about raising significant amounts of money or outbidding competing fans, but about expressing support for the player in any way, including unique ways that reflect a connection to the particular city.
Friday, December 11, 2015
Crowdfunding college sports
The New York Times tells of a Clemson fan who has launched UBooster, a site designed to allow college sports fans to pledge money to help attract high school athletes to the donors' preferred schools--in other words, exactly what Dan, Mike McCann, and I proposed. (H/T: Gregg Polsky). According to the story, fans pledge money to a particular recruit, with a note urging him (or her) to choose a particular school; no more money can be contributed once the athlete commits to a school and the money is held in trust until after the player finishes college. The money is not funneled through the university and there is no direct contact between UBooster and either the athlete or any particular school. For that reason, the founder, Dr. Rob Morgan, believes this does not violate NCAA rules and, in fact, offers a way to allow fan involvement while easing the financial burden on universities to do more to help athletes.
The former head of the NCAA's Committee on Infractions calls this "far more sophisticated than the hundred-dollar handshake," but I am not sure it is a meaningful difference in kind. Student-athletes are still receiving money because they are student-athletes and because of their athletic ability, and the lack of a direct connection among student-athlete, school, and donor does not change that; in fact, the NCAA's point is specifically to keep "strangers" from giving student-athletes money, regardless of connection to the school. Nor does the four-year delay in getting the money change much--it is still money for playing a sport, whether the benefit is received immediately or in a few years. I also do not believe the absence of an express quid pro quo (the student-athlete gets the money, regardless of where he ultimately plays) makes a difference; the NCAA regs are designed to avoid bidding wars and allowing the athlete to keep everything is not going to alleviate (or necessarily disincentivize) such bidding wars.
Mind you, I am not speaking in support of the NCAA's regs or the current model of college sports. I am only saying that, under those rules, any student-athlete who participates in this (and any school for which he plays) is in for some problems.
Tuesday, November 10, 2015
At the beginning of the baseball season this year the New York Mets' second baseman, Daniel Murphy, missed the first two games of the season for the birth of his son, invoking the league's "parental leave" policy. He and his wife faced some absurd criticism from closed-minded people who suggested that his wife should have had a c-section before the season began. Murphy in many ways had the last laugh, helping the Mets reach the World Series through some torrid hitting during the playoffs; as reporter Wendy Thurm tweeted during the playoffs, "Daniel Murphy proudly took paternity leave & now look how well he's performing at work."
I can't hit a baseball very far, but I, too, am taking advantage of my employer's parental leave policy. (So I'm kind of like a major league baseball player, right!? Childhood dream fulfilled!) My wife and I welcomed the birth of our son, Harrison, last April, and this semester I am not teaching any classes so that I can enjoy flexible scheduling while caring for him. I'm still required to provide "100% work" through research and service (hence my midnight post to Prawfs), but this scheduling allows for a wonderful amount of bonding and family time during these precious first few months of his life -- especially because my wife, as an elementary school teacher, had to go back to work in August. (Insert your own comment here criticizing the paltry amount of leave most women in this country receive after giving birth. It is absurd. And unlike many other people, we were fortunate in that my wife was off during the summer right after he was born.)
At first I was not sure I was even going to invoke my school's new parental leave policy. I thought, "I love being in the classroom, and plus, I had the summer to spend with him." But a wise colleague convinced me otherwise. She pointed out that, if I were at a law firm, I would have hardly any opportunity to take much leave. In some ways, the flexible scheduling of my job as a professor is a form of compensation. And I'll never have these first months back with him. Plus, it is important to set a precedent for this new policy to create a culture that accepts and understands the importance of this time and encourages others to take advantage of it.
So my son and I have had a blast spending time together. In September we caught a ballgame in Cincinnati. Most Tuesdays find us at the library for story time. We go on long walks. I've read him a good smattering of both law review articles and Go Dog Go! (For some reason law review articles seem to put him to sleep! He much prefers books written by Mo Willems, our favorite children's book author.)
What's the point of this post? To demonstrate that it is -- or at least should be -- admirable for someone like Daniel Murphy (or me!) to take parental leave. To advocate for more law schools to offer broader parental leave policies if they do not already do so. And to suggest that more professors (including fathers) should take advantage of those policies.
To be sure, I am excited to g0 back to the classroom in January, and I'm confident that my time away has made me even more refreshed to teach. These breaks help to make us better teachers and scholars -- and allow us to live a fulfilling life where family comes first. It is also important to model to our students that it is possible to have a meaningful work-life balance, and that sometimes major events -- the birth and care of a child -- take precedence over everything else.
It's been a really great experience....mostly. What's that sound? Oh, it's time to go change a diaper!
Monday, October 12, 2015
Baseball and viewpoint discrimination?
As students are aware of my baseball allegiances, I am getting many questions and comments from students about the Cubs current position in the baseball playoffs. One student shared this story from last week--a professor at the University of Illinois moved the mid-term exam for a student because the student had obtained tickets to last week's National League Wild Card game in Pittsburgh.
Viewpoint discrimination? What about the Cardinals fans who no doubt are in the class?
Wednesday, September 23, 2015
Yom Kippur, Sandy Koufax, and (the forgotten) Hank Greenberg
Something that had not clicked until my rabbi discussed it last night: This Yom Kippur marked the fiftieth anniversary of Sandy Koufax not pitching Game 1 of the World Series (it was October 6, 1965, on the English calendar). This story forms a big piece of Koufax's legend as one of the greatest pitchers of all time, the greatest Jewish player of all time, and a hero to American Jews who saw in his actions a place for their faith within American society (Three thousand years of beautiful tradition, from Moses to Sandy Koufax...).
My rabbi also told the oft-repeated addendum to the story. Don Drysdale (himself a future Hall of Fame pitcher, so it is not like there was such a drop-off in WAR by Koufax not pitching) started and lasted less than three innings. The story goes that when Dodgers manager Walter Alston came to the mound to remove Drysdale from the game, Drysdale said something to the effect of "Bet you wish I was Jewish, too." But a baseball historian told me there is some doubt about when this comment actually was made and by whom. One version is the common one. Another has Drysdale saying it in the clubhouse after the game. And in a third version, it was not Drysdale who said it, but a former Dodger player who was watching from the stands. The historian was unable to get underneath the most-common version of the story.
Koufax's decision has completely overshadowed a similar decision by the previous greatest Jewish player, Hank Greenberg, who played for Detroit and Pittsburgh in the '30s and '40s (his life, and this event, is covered in a wonderful 2000 documentary). In the heat of a close pennant race in 1934, Greenberg played on the first day of Rosh Hashanah (after obtaining permission from a local rabbi, who searched the texts to find that "play" was permitted on that day), but did not play on Yom Kippur. Although no one in 2014 marked the eightieth anniversary of Greenberg, in some ways, his stand was more courageous than Koufax's. For one, Greenberg was an everyday player who would have been expected to play every game; as a pitcher, Koufax only could pitch in one of the first two games, so holding him to Game 2 was not an enormous lineup change or loss. For another, the position of American Jews in 1934 was far more precarious than in 1965. While there was still anti-Semitism, both de facto and de jure, in 1965, it was far worse thirty years earlier. This was one year after Hitler came to power. And Greenberg played in Detroit, home of Henry Ford and Father Coughlin.
Greenberg was similarly lauded for his act of conscience and seen as similarly inspirational by American Jews. Yet his stand has been lost to history. Some of it is that the World Series is a bigger deal than a pennant race. Some of it is that Koufax is closer to being the greatest pitcher of all time than Greenberg is to being the greaterst first-baseman of all time, so all of his actions are magnified. Some may be recency bias.
In any event, with all the additional post-season rounds and games, no Jewish player will ever again have to skip a World Series game for Yom Kippur. It is more likely he would miss a World Series game for Thanksgivukkah 79811.
Thursday, August 20, 2015
Infield Fly Double Play
On Wednesday night, the Royals turned a double play on an Infield Fly (video in link). With bases loaded and one out, a fly ball was hit near the first-base line, even with the mound; the rule was put in effect, the ball was not caught, and the runner on third made the instinctual move of running when the ball hit the ground and was tagged out at home. This is about the third or fourth time I have seen a double play on an I/F/R call in the six seasons I have been tracking.
Although the non-catch here was unintentional (the pitcher and first baseman had a miscommunication), a play such as this shows why the I/F/R does not entirely eliminate the perverse incentive for infielders to intentionally not catch the ball. There is always a chance an infielder could con the runner into taking off when the ball hits the ground and the runner's instinct takes over. And because not catching the ball is costless to the defense (since the batter is out anyway), it could be worth a shot. But this possibility does not undermine the I/F/R. The rule exists because base runners would be helpless if forced to run on a non-catch; it does not exist to save the runners from the consequences of running without thinking. And, of course, had the catcher forgotten to tag the runner (i.e., had the catcher been the one to have the brain cramp), the runner would have scored. In any event, I have only seen two instances of intentional non-catches in six seasons, so clearly the likelihood of success is not high enough to convince infielders to try this on a regular basis.
Monday, August 17, 2015
NLRB declines jurisdiction in Northwestern football case
The National Labor Relations Board finally ruled on the efforts of Northwestern football players to unionize, declining to exercise jurisdiction without deciding whether college athletes are statutory employees. The Board determined that "it would not promote stability in labor relations" for it to get involved. It emphasized the unique circumstances of the case and the problem of ruling on union efforts by players in one sport at one school. Professional athlete-unions were sport- or league-wide, not team-wide. FBS schools, including all other Big Ten schools, are public and thus not subject to Board jurisdiction, meaning Northwestern (and 16 other FBS schools) might be able to unionize but not any of its competitors. This also would undermine the NCAA and the Big Ten Conference, which member schools formed to create the uniformity and level playing field that a Northwestern-only union would undermine.
At Workplace Prof, Jeff Hirsch briefly discusses the opinion, arguing that the NLRB's conclusion about instability is understandable, but ignores the way that unionization might have pressured the NCAA to make needed changes. I would make that point even more specifically--unionization is the only way to ensure student-athletes have real power in creating new policies for the NCAA, as opposed to being given a voice that can be easily overridden or ignored by other interests. For example, under the proposed revised governance structure for Division I athletics, student-athletes would hold one vote on a 21-person Board of Directors and two votes on a 38-person Council (the legislative body), a body on which 60 % of the Council must be athletics directors. The NLRB identified some changes that have been made since the filing of the petition, perhaps suggesting its view that things are improving for student-athletes and even a small number of unions is unnecessary to further NLRA policies.
Matt and I have been waiting for this decision for a year-and-a-half and had planned on writing a short essay on the decision and the underlying normative issues. Given this resolution, I doubt there is much to say.
Thursday, July 30, 2015
I already have the title for a future paper--"Tie Goes to the Runner" and Other Myths of Baseball Rules. The paper will explore baseball rules that everyone believes/assumes are one way and that often are captured in a common, pithy cliche; in fact, they are entirely different, if not the precise opposite, from what everyone thinks. For example, the one from the paper title. As kids, we always yelled "tie goes to the runner" to justify having a runner be safe when the play was too close to call; in fact, the runner is out unless he affirmatively beats the throw--in other words, tie goes to the fielder (Bruce Weber's As They See 'Em has a great discussion of this).
Now I just need some content. So far, I have identified five rules that fit the bill, thanks in part to suggestions from participants in a SEALS discussion group earlier this week: 1) Tie goes to the runner; 2) Infield Fly Rule only applies to balls on the infield; 3) "One base on an overthrow"; 4) "Hand is part of the bat" (so getting hit on hand when hand on bat is a foul ball); 5) The runner cannot run out of the baseline (this rule, and the common misunderstanding of it, came up during the 2013 World Series).
Can anyone think of others? Suggestions welcome in the comments.
Tuesday, May 12, 2015
More catalyzed fans
Sports fans are certainly being catalyzed to spend money in crowdfunding efforts. But the focus of fan spending seems to be less on player recruitment and retention, the focus of our discussion, and more on one-shot efforts to handle team crises. The latest example: New England Patriots fans started a GoFundMe campaign to pay the $ 1 million fine the NFL levied against the team over the use of under-inflated balls during last year's conference championship game. In the first 22 hours, 500 people donated just over $ 7200.
Dan, Mike McCann, and I nodded toward this form of fan funding, although we recognized the obvious moral hazard problems. Still, these efforts are increasingly common, at least on a small scale.
Monday, May 11, 2015
Bill Simmons and the Duty of Loyalty
ESPN rather publicly announced that it would not be renewing its contract with Bill Simmons, editor-in-chief of its sports and entertainment site Grantland, as well as writer, author, and co-producer of the "30 for 30" sports documentary series. A lot has been written about the inside details, as well as the larger ramifications for Simmons, Grantland, and sports and entertainment media more generally. There's also some interesting IP issues -- could ESPN really appoint another host for the "B.S. Report"? But I'd like to talk about the next four months, in which Simmons is still with ESPN but is essentially a lame duck. What does employment law say about this awkward interim period?
Having been publicly cut off at the knees by his current company, Simmons will want to focus on his next gig. But the law may restrict his ability to do so. Most jurisdictions have recognized that employees owe employers a duty of loyalty. The contours of this duty are somewhat vague. At the very least, the duty would prevent Simmons from working for a competitor while he is still under contract with ESPN. But let's say he agrees to start working for, say, Fox Sports beginning the day after his ESPN contract ends. Can he tweet out his new employer? Can he use his ESPN column or podcast to mention his new gig or even promote it? Can he ask Grantland employees to join him at his new place?
The duty of loyalty has been generally recognized as prohibiting an employee from using her current employment to solicit for her future employer. Employees are also prohibited from disclosing trade secrets to their future employers. On the other hand, employees are generally allowed to "prepare" to compete by talking with other employers and agreeing to future employment. The murkiest area involves one's current fellow employees. Can Simmons solicit Grantland employees for his new venture? Some courts have found it disloyal for current employees to persuade other employees to break their contracts with the employer. It doesn't help that Simmons is editor-in-chief, as courts have held supervisory employees to a higher standard. However, courts have also focused on surprise as particularly problematic, as when a large group of employees suddenly up and leaves with no notice. ESPN has plenty of notice that Simmons is leaving and may want to take some of his hires with him. And although not officially a legal factor, the fact that Simmons is being fired (in some sense) will make his efforts to rebound more sympathetic.
Simmons's last days at ESPN could resemble the tenure of another media celebrity in the wake of a high-profile move. In 2004, Howard Stern announced his upcoming move from CBS Radio to Sirius Radio with great fanfare. He used his CBS show to make the announcement. And he proceeded to use the show to bash CBS for its efforts to censor him, and to promote his Sirius move. In 2006, CBS Radio sued Stern over his promotion efforts for his new show. CBS claimed that Stern has used his airtime at CBS to promote Sirius and had engaged in other promotional efforts off the job but while still employed. It asked for $218 million in damages -- the stock compensation Stern received from Sirius based on the huge jump in Sirius subscriptions in the wake of Stern's announcement. This request for the disgorgement of the compensation Stern received from Sirius is a traditional remedy for the violation of the duty of loyalty. The disloyal agent is expected to disgorge back to the principal any ill-gotten gains received in the course of the agency relationship. Reviewing the claims, Stephen Bainbridge concluded that Stern had likely violated the duty of loyalty with his on-the-job solicitations for Sirius. Ultimately, CBS and Stern settled the suit for an undisclosed amount.
Conan O'Brien's relationship with his employers at NBC was similarly contentious at the end. When told NBC was moving the Tonight Show to midnight, O'Brien balked, arguing that the Tonight Show could only start at 11:35 after the local news. He then spent two weeks trashing his employers on the NBC airwaves. He even had a running segment where he frittered away NBC's money on expensive cars and licensing rights. The big difference -- O'Brien was tussling with NBC over his contractual rights, and ultimately the two sides settled with Conan's departure. He had no future show o promote while still at NBC, and in fact his settlement forced him off the air and into radio silence for six months.
Simmons may be tempted to spend his last few months settling the family business -- trashing ESPN, raiding Grantland of its best writers, and setting up shop at his new home. And legally, he would have a decent case for doing all these things -- although not one without risk. What seems clear, however, is that he cannot use ESPN properties to promote his new media home while still an employee. I would expect instead that word of the new location gets out through the media, coming from everywhere but Simmons himself.
One final note -- I'm assuming that Simmons's contract does not speak specifically to these matters. He may have a non-compete that kicks in after the contract's expiration, although that seems unlikely. And if he starts trashing ESPN or the NFL commissioner, ESPN may end up suspending him again or simply firing him before his contract expires.
Tuesday, May 05, 2015
Walk-off Infield Fly Rule
Great story about a Japanese baseball game on Monday that ended with a walk-off infield fly (H/T: My FIU colleague Ediberto Roman). This is a welcome new story for my hoped-for book on the IFR.
With the bases loaded and one out in the bottom of the ninth, the batter hit a pop-up right in front of home plate. The third-base umpire (although not the home plate umpire) signaled Infield Fly (you can see him in the background at the 0:57 mark). The ball fell to the ground between two players. One of them picked up the ball and stepped on home, looking to get the force out on the runner on third. But he did not tag the runner, who continued across the plate. The batter being called out on the IFR removes the force play at home; the runners can advance at their own risk and any play at a base becomes a tag play. After an argument and a conference, in which the third-base umpire presumably told the plate umpire that he had called IFR, the runner was called safe at home, and the game ended.
Plus, the audio teaches us that the term "Infield Fly" is the same in Japanese. Great stuff.
Tuesday, April 28, 2015
Aesthetic sports rules
Slate's Hang Up and Listen devoted its first segment to the (problem?) of a Hack-a-[Blank], thr strategy of intentionally fouling a poor free throw shooter away from the ball throughout the game. They discuss whether it works, whether it spoils the game, and what, if anything, can or should be done about it. The best solution is probably to give the offense the option of getting the ball out of bounds instead of taking the free throws (there used to be a similar rule in international basketball). By not making the bad shooter take the free throws, the incentive to keep fouling goes away.
So if this (or some other rule change) came about, should we understand it as a limiting rule grounded in cost-benefit disparity, a la the Infield Fly? As I wrote about soccer's offside rule, I don't think so. Instead, this would be a purely aesthetic rule, designed to make the game look better and be more enjoyable to watch. To be sure, there is an aesthetic component to the logic of the Infield Fly Rule; that rule disincentivizes teams from intentionally failing to catch easily playable balls, which is unappealing to watch. But the chief concern is the cost-benefit imbalance, of the defense getting two outs instead of one and the runner being unable to stop it. That is missing with Hack-a-[Blank], because the offense can overcome the strategy by making the free throws or rebounding the miss. Nevertheless, the game becomes unappealing when it involves nothing more than intentional fouls on DeAndre Jordan 25 feet from the basketball and a parade of missed free throws. So the rule change may seek to limit strategy solely in the name of the aesthetics of the sport.
Sunday, April 26, 2015
Baseball reaches historic milestone
Saturday, December 27, 2014
Gutless educational administrators and the First Amendment, part 6577 (Updated)
This is pathetic and really depressing. (Note the title is changed to reflect that the public face of the decision is not the school's AD, but the school's principal, which just makes this even more depressing).
First, we bemoan about how uninvolved and politically disinterested "kids today" are, then we systematically shut down their efforts to be involved or to take a stand.
Second, note the administration's move here--"we are too small to keep the peace 'should someone get upset and choose to act out,' so we are just going to stop people from speaking." This is a preemptive heckler's veto--In the ordinary heckler's veto, government stops the speaker when the crowd gets unruly and actually threatens violence; here, the government is stopping the speaker with no basis to know or reason to believe that anyone will get unruly, essentially by pleading poverty. Of course, government never has enough resources to protect everyone should someone decide to act out (someone will get hurt before police/security can respond). So, taken to its extreme, no one should be able to say anything that (government finds) controversial or objectionable, because government never can guarantee complete safety.
Third, while high schools are different and administrators have much greater control over expression on school grounds, this seems a step too far, particularly as to fans in the stands. Is an "I Can't Breathe" shirt really more likely to cause a disruption than an armband in the middle of Vietnam?
Fourth, given the insistence that "all political statements" be kept away from the tournament, should we assume that the national anthem will not be sung?
The tourney begins Monday. No indication that the players or potential shirt-wearing fans are running to court to even try to get an injunction.
Update: Some more details in this story. Before explaining the preemptive heckler's veto, the principal of the host school--a professional educator--indicated that she "respected the Mendocino teams 'for paying attention to what is going on in the world around them.'" Apparently, however, this professional educator does not respect them enough to not punish them for paying attention to what is going on in the world around them. Irony really is dead.
The Huff Post story also indicates that the father has been in touch with the ACLU and is hoping to hear back after the holiday. Someone in the N.D. Cal. is going to be handling an emergency TRO Monday morning.
Further Update: Per a commenter: The school district relented following negotiations with an attorney for one of the players--players and spectators will be permitted to wear the t-shirts, so long as they "do not cause any serious problems at the tournament." Of course, framing it that way walks us right back to the heckler's veto--if I object to the shirts, my motivation is to cause a disruption, which would then prompt the school district to do what I want and stop people from wearing them.
The Mendocino HS girls' team will not be able to play; since too few players accepted the no-t-shirt condition last week, the tournament invited a replacement team. This is where a § 1983 damages action would come in handy. Unfortunately, there is no way a court would find it clearly established that banning these shirts was unconstitutional, which would entail a parsing of Justice Alito's concurrence in Morse.
Tuesday, December 16, 2014
But can I wear my "Fuck the Draft" jacket?
From Judge Susan E. Gash, presiding over the trial of NFL player Aaron Hernandez:
No person wearing clothing, or a button or other object attached to clothing, or carrying an object that displays any Patriots or other NFL team logo, football-related insignia, or words and/or a photograph that relate in any way to this case will be permitted entry to the Fall River Justice Center during any phase of the trial.
Does this seem excessive, especially as it applies not only to the courtroom, but within the entire building? And is it necessary to ban everything related to all of football, not just the Patriots or even just the NFL? Is it really that problematic for jurors to see any and all football-related things?
Sunday, December 07, 2014
Why it's impossible to regulate racist speech
Too often, the people doing the regulating do not (or cannot) get humor and satire. Latest case in point: the English Football Association has brought "charges" against star player Mario Balotelli (who is Italian, of Ghanaian descent) over an Instagram post of the picture "Dont' Be Racist," which talks about how multi-ethnic and non-racist Mario is by reference to all the ethnic stereotypes he embodies.
In my view, it's pretty funny. But the FA says Balotelli violated a prohibition on "abusive and/or insulting and/or improper," aggravated by "reference to ethnic origin and/or color and/or race and/or nationality and/or religion or belief." I posted the picture after the jump. Is it possible to sensibly see this as anything other than joke, reappropriating stereotypes to undermine them? Is this really abusive or insulting? Or is this simply what happens--when you try to regulate words, context inevitably gets lost.
Monday, December 01, 2014
Free speech in the NFL
It will be interesting to see how this plays out. Five St. Louis Rams players walked onto the field in the "Hands Up, Don't Shoot" gesture; the St. Louis Police Officers Association is demanding that the players be disciplined and that the team issue a public apology. The full statement from the association is angry and unprofessional (not to mention loaded with really stupid football puns); it quotes extensively from the organization's business manager, a fired police officer now serving in the state legislature who has been one of the few voices opposing body cameras.
NFL Commissioner Roger Goodell is a coward and a liar. But will be really punish players for core political speech about a local and ongoing matter of public import? (Note: Yes, I know he can punish them; the question is will he and, if he does, how does he explain it away).
One last note: In the statement, the association refers to Darren Wilson (not by name) as the "now-exonerated officer." Is that an appropriate description of the process that was used?
Friday, October 24, 2014
The Eleventh Amendment is a pain
This lawsuit, filed today, alleges that the NCAA violates the Fair Labor Standards Act by not paying student-athletes (who, it alleges, are akin to work-study students). Named defendants are the NCAA and every Division I school, many of which are state schools; the suit seeks unpaid wages and an injunction requiring the schools to stop violating the FLSA (meaning that students be paid wages going forward). The problem: States cannot be sued by name under the FLSA, which is a Commerce Clause enactment on which Congress cannot abrogate sovereign immunity. And Ex Parte Young is not available for recovering the unpaid wages, so the plaintiff cannot retrench and sue the president of each state university.
Without even getting into the FLSA merits, this is a case in which the Eleventh Amendment is genuinely a barrier to relief. The plaintiffs' best move is to try to proceed with their claims against the private schools, then hope the Department of Labor will be persuaded by the arguments and will jump into the case.
Thursday, October 16, 2014
In praise of being a white belt
My oldest child is getting ready to test for a black belt in tae kwon do next week, and my other two children are only a few months behind. They started taking classes a few years ago at a school that encourages the whole family to take classes, so I joined them. I was not good. I still am not good, but it's taught me a number of valuable things about teaching that I never would have realized otherwise.
1. Embrace being a white belt. The white belt is the earliest stage of any martial art, the stage of a total beginner. A white belt may be the world's expert in some other field, maybe even in some other martial art, but in this one, and in this school, this person is a beginner. It requires a level of humility and adventure to let yourself be a beginner, especially when you've worked so hard to establish yourself as an expert with authority in a heirarchical field like ours. But there is only room for improvement from beginner-ness. When else is there nothing but up-side, an opportunity to see what you can do and improve on that?
Our students go through something like this when they start law school. I'm sure that you remember what it was like, whether you went straight to law school from undergrad, worked for awhile, or had pursued another degree. You had worked hard to accomplish things, had even felt some level of mastery, maybe, and now, you were starting over. And students seem to fall into two main categories. Some think that everyone else is more accomplished than they are. Others chafe at the failure of others to recognize their brilliance. If we remember some important things about being a beginner, we can help our students through the pain of beginner-ness to also see its virtue and embrace the possibilities--including doing the kinds of work that will make them successful lawyers.
Being a beginner is context specific but also a universal experience. Everyone (except maybe Cass Sunstein, or Chuck Norris) is always right now a beginner at something. And a person can be a beginner at one thing while being a master of another. There is no impact on a person's intelligence or worth to accept being a beginner at something. And just because other people are better at this thing doesn't detract from the things you are an expert in. In beginner-ness is there is no shame, and only potential.
2. Practice makes you better, and practice involves failure.As a beginner, your job is to try something you never have before or do something in a new way. You will fail in some way. But you will learn from the way that you failed and will try something different the next time. And that time, you will fail in a new way. And the process will continue.
Performance of some skill can really only be learned this way, through demonstration, attempts, failures, analysis of the failures, and new attempts. Learning how to be a lawyer is learning to perform a set of skills. Because many people come to law school thinking that they will be only gaining knowledge, i.e. memorizing rules, they aren't prepared for this reality. They don't always realize that they are learning how to perform or how to show they are engaging in the right process. And we are not always clear that the process is what we are teaching them.
3. Perseverence. Being successful means continuing to try and learning from those failures. It sucks to fail in new and exotic ways. But working through that is necessary not just to succeed in law school but to succeed in practice, too. As we are frequently reminded Grit Trumps Talent and IQ when it comes to success.
4. Perspective. In school and in practice, unlike tae kwon do, people aren't always trying to kick you in the head, at least not literally. But even when they are, you've got your equipment and learned how to evade and block those kicks. In addition, you can learn to live with a little bit of anxiety, learn to accept that for what it is and not let it paralyze you. Finally, I have lots of bruises from all of those kicks, bruises that I cover up with long sleeves and pants, so people can't see them. This helps me remember that everybody has bruises that don't show. Some of them are literal, and some are emotional. I have to be careful to recognize the potential of these bruises in my interactions with students, dealing with difficult topics in the law or aspects of their performance in school.
5. It is awesome to kick stuff and break things when you read, talk, and think for a living. Need I say more?
Monday, October 13, 2014
10 Lists I Read on the Internet That Made Me Feel Stupid
Maybe I'm just still pondering College Magazine's list of "22 Reasons Why Going to Law School is the Best Decision You'll Ever Make", which, unlike anything I've written, got picked up by Huff Post. All in good fun, sure, though perhaps over-selling the case and understating the seriousness of law school as a financial proposition.
But I must not be the only person to notice that the internet seems to have been taken over by lists. There they are at the bottom and sides of the screen on my tablet, just begging to be clicked on as I strain to get up that one last hill on the stationary bike. Yes, I know, it's all about ads, and getting to put a different ad up after each click on the list. Still...
It's as if the internets think people can only think in lists. I'm all for, say, numbered blog posts, to help make it easier for commenters to point out which aspect of my argument they found the most stupid. But among the problems with these lists is that their authors seem to gravitate towards the number 10, or 12 (unlike our industry's latest booster), but sometimes getting past eight requires adding a few entries that probably didn't belong.
I'll join the fun, though. Here's a list of recent lists I find silly:
I desire only to smell it, drink it, and dream of it.
I prefer to think of myself as a being of only thought and light.
Don't care what coast animates what character. Still cry every time Mufasa dies.
Seriously, Buffalo has an NFL team? Huh.
It's so obviously the best place to live in America we didn't even try for 10 reasons.
Holy Mother Goddess, pagans can go on and on and on...
Odd that "hurts" and "pain" aren't more prominent, or at least "Riggs, I'm getting too old for this ..."
No Tweets about conferences? That's like the most exciting thing we do, dude.
Back in my day, we used to call this a "mix tape".
Guessing Joe Slater knew most of them.