Author: Howard Wasserman

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Goodbye and thank you

My extended guest stint here at CoOp is now at an end. My deepest thanks to Danielle for inviting me (and for offering the extra month, which I was glad to accept), the rest of the CoOp crew for having me, and everyone for reading and commenting. My posts on the infield fly rule are going to form my next scholarly project, so I should be able to put a lot of these comments and ideas to good use.

My apologies for relatively light blogging during my final week. I have been (and still am) in scramble mode, trying to do the final read and review on the manuscript for a student treatise on civil rights litigation. The book is intended both as a student supplement and as a primary assigned book in support of a raw/unedited-case approach to the class (which is how I’ve been teaching the course for a few years now). I welcome any comments and suggestions on the book as it moves through publication (it’s due at the publisher in about a week), so if you teach civil rights (or its parent, Fed Courts) and are interested in having a look at the manuscript, I am happy to share.

I also have been getting ready to teach for the first time since last April, as my first-ever research leave winds down. I have not blogged about being on leave, but probably will when it’s done and I’ve had some time to reflecf. I honestly don’t believe I could have gotten this book done if I were teaching an ordinary load the past three months. At the same time, I have missed being in the classroom and the way that teaching time helps organize and break-up the week.

Anyway, thanks again for reading. I hope to be back here again soon—maybe even sooner than for the final month of the 2016 Elizabeth Warren-Marco Rubio presidential showdown.

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Jurisprudential Trivia

Take a break from grading/writing exams for the following (posted by Aaron Caplan (Loyola-LA) to the ConLawProf listserv and reposted here with permission):

What do the three cases below have in common, then suggest additions:

  1. M’Culloch v. Maryland
  2. Scott v. Sandford
  3. Minersville School District v. Gobitis

 

 

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TV and evolving culture

On the show Parenthood (which I previously wrote about for portraying some legal issues (badly), one story arc this season has a character undergoing chemotherapy for breast cancer (and doing a great job showing how harrowing that is). In last week’s episode (which we just watched last night), she smokes pot to get some relief–and they show her laying in bed surrounded by the haze of marijuana smoke, clearly feeling better, holding the joint in her hand, and even taking a hit. They also show her husband getting the pot from his younger brother, who has a hidden stash in his bedroom (in the house he shares with his wife and son); the brother admits to having left-over from a trip they took and he talks about the high quality of this pot compared with what they smoked as teenagers. And all of this is happening on network television, not on AMC or HBO. This says something about where we are as a culture with respect to pot. True, it was showing medical rather than recreational use, which is easier to sell to the public. But it clearly showed her feeling better while smoking and saying she wanted more. More importantly, there is a casualness to the way pot is discussed here–the brother is not evil and does not need to be punished for having pot in the house (and since he is not undergoing chemo, presumably he and his wife smoke recreationally) and the seven-year-old son does not find it by mistake, get high, and jump off the roof.

Of course, one could say this is all about the liberal producers of the show. Parenthood‘s show-runner is Jason Katims, who was head writer and executive producer of Friday Night Lights, whose former members (although not Katims) had several shouting matches with the Romney Campaign and the show’s politics. Parenthood has never been explicitly political, although the family is just sort of casually liberal (they live in Berkeley, after all). Even so, all of this had to get through NBC’s standards and practices, which is not known for being progressive on matters such as drugs (and I missed whether the show ran a warning at the top of the episode).

Once again, it all feels like progress. And I highly recommend this show–as long as it stays away from law.

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Majoring in college sports

Last year, I wrote about a proposal by Sally Jenkins of the Washington Post to allow college athletes to major in their sport, building a (hopefully) rigorous curriculum around participation on the team. Now here is David Pargman, an emeritus professor of educational psychology (and a self-described sports fan) making a similar proposal in Monday’s Chronicle of Higher Education (H/T: Deadspin). Like Jenkins, Pargman uses performing arts majors as the analogue. He goes one step further and lays out what the last two years of the program would look like, with the first two years spent in basic studies. The advantage of this, Pargman argues, is honesty–students, coaches, family members, and universities all can openly acknowledge exactly why these young men and women (mostly men) are on campus.

As I wrote last time, this is an interesting idea with some potential, but the devil is in the details. Ultimately, my deepest question is whether this solution addresses the real problem facing college athletics. Pargman argues that not forcing student-athletes to pick a major in which they are not interested–when they really want to study their sport and become a professional athlete–is “integral” to a good portion of the other travesties that surround college sports. But is forcing a football player to major in, say, “Leisure Studies” really integral to all the other problems? Or are the real problems that 1) many of these people have no interest in being in college or studying at all, regardless of what classes they can take or what they can declare as a major, and 2) universities and coaches are making boatloads of money because of the skills of these students and the students are not seeing a dime. Honesty in their major does not change that.

Which is not to reject the proposal out of hand. It is just to emphasize that the problems inherent in college sport go much deeper than this.

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Whither Elmo?

My daughter is well past Sesame Street age, although she spent a year (from 20 months to 32 months) carrying a stuffed Elmo everywhere. But given the news that the man who created Elmo, Kevin Clash, has resigned from the show in the wake of two separate allegations of child sexual abuse, a question:

Can Elmo survive as a character? Sesame Street producers insist he can, that other puppeteers are trained to do the character and that “Elmo is bigger than any one person.” But can parents separate Elmo the character from the person who played him, given how much attention Clash himself has received? And there are two aspects to this question. First, will parents allow their kids to like, watch, and play with Elmo? Second, what do the show and parents do with the fact that most of the 2013-14 season (the show’s 44th) has been taped, meaning Clash will be playing Elmo well into 2014?

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Outing racist speech, shaming racist speakers

Following on my discussion last week about the piece at Jezebel outing racist tweets by random high-schoolers after President Obama’s reelection: Hello There, Racists is a Tumblr that collects and publicizes racist tweets, Facebook posts, blogs, etc., along with identifying information such as name, school (a cursory look at the site suggests that most of those shown are minors), and photograph. (H/T: My colleague Tracy Pearl). The identifying information is put out by the posters themselves on their own social media sites, which makes this slightly different than the Jezebel post, which went digging to find the kids’ schools. The goal of both is to prompt social consequences–professional, athletic, academic–for posting obnoxious ideas. Emily Bazelon at Slate criticizes this sort of crowd-sourced “outing,” arguing 1) public shaming is unlikely to cause them to rethink their ideas or statements and more likely to just make them indignant and 2) teenagers don’t fully understand how exposed they are on social media and the consequences of that. Much depends on whether we believe teenagers understand (or should understand) what ideas are morally wrong and socially unacceptable and thus should bear the consequences, however long-term, of espousing (seemingly proudly, to read some of the posts) such ideas.

Two things to watch going forward:

1) Are some public schools going to find their students on this site and punish them for their posts? And if so, how will those cases play out in court? As I wrote previously, assuming these posts were not written on school time, no coherent conception of student speech would authorize school punishment for this expression.

2) Can the creator of the Tumblr keep the readership on a leash? As this post describes, one of the blogs captured on the Tumblr had to be taken down because threats were made to the subject of the blog. The creator of the Tumblr admonished his readers: “[I]f I get credible reports of threats, I will have to take down this blog. So if you want racists to be exposed, do not be threatening or intimidating.They deserve to lose their jobs and scholarships, but not threats of any kind.” Is this the editor preemptively protecting himself on the off-chance that one of his readers does something stupid (no way he would be legally liable, but what ethically responsible is another story)? Is it possible to engage in this sort of crowd-sourced public shaming without things getting out of hand? Are the shamers likely to be as irresponsible as those they are trying to shame?

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Final sports/election link

One final sports “predictor” of the presidential election: The winner of The Game–a Harvard win means a Democratic president, a Yale win means a Republican president. This held form this year, as Harvard won 34-24.

More broadly, since they have been playing since 1875, we actually have some data to work with.

• Since the origins of the rivalry, there have been 35 presidential elections and 32 games (no games in 1888, 1894, or 1940), this has held 20 times (62 %–not that impressive). That includes the Harvard Beats Yale 29-29 tie in 1968. Maybe that election should have gone to the House of Representatives.

• Over the last 18 elections and 17 games going back to 1940 (again, no game in 1944 because of World War II), it has held 14 times (82 %–much better).

• In my lifetime, going back 12 elections and 12 games to 1968, it has held 9 times (75 %).

• Over the last 9 elections going back to 1980 (call it my political lifetime), it has held 8 times (89 %); the only miss was W’s reelection in 2004.

Of course, since The Game usually is played in mid-to-late November, this is less a predictor than an ex post correlation. Except in 2000, that is, when they played while the Florida debacle was playing out. Maybe we should not have been so surprised when Bush v. Gore came out as it did.

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Infield flies and taking a knee

I have written recently about baseball’s Infield Fly Rule, including a general defense of, and rationale for, the rule itself. I plan to come back to it more fully in the spring, after I get through some current and future projects. I want to write a fuller piece on the cost/benefit analysis underlying the IFR and why that cost/benefit balancing both justifies IFR and why, given that balance of costs and benefits, the infield fly situation is unique not only in baseball but in all sports. There simply is no other situation like it.

This will expand on The Atlantic piece. In that essay, I identified four features of the infield fly situation that justify a special rule: 1) The fielding team has a strong incentive to intentionally not do what they are ordinarily expected to do in the game (catch the ball); 2) the fielding team gains a substantial benefit or advantage by intentionally not doing what is ordinarily expected (this is the prong I want to flesh out in economic terms of optimal outcomes, costs incurred, and benefits gained for each team); 3) the play is slow-developing and not fast-moving, so the player has time to think and control what he does; and 4) even doing what is ordinarily expected of them, the opposing players are powerless to stop the play from developing or to prevent the team from gaining this overwhelming advantage.

As I said, I believe the infield fly is the only situation in all of sport that possesses all four features. But in conversations with friends and readers, one situation keeps getting brought up: The kneel down (or “Victory Formation”) at the end of football games. Read More

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Steven Lubet on “John Brown’s Spy”

One more new book: Steven Lubet, a regular reader and commenter here and my former trial advocacy professor and , has published John Brown’s Spy: The Adventurous Life and Tragic Confession of John E. Cook. From the Yale University Press website:

John Brown’s Spy tells the nearly unknown story of John E. Cook, the person John Brown trusted most with the details of his plans to capture the Harper’s Ferry armory in 1859. Cook was a poet, a marksman, a boaster, a dandy, a fighter, and a womanizer—as well as a spy. In a life of only thirty years, he studied law in Connecticut, fought border ruffians in Kansas, served as an abolitionist mole in Virginia, took white hostages during the Harper’s Ferry raid, and almost escaped to freedom. For ten days after the infamous raid, he was the most hunted man in America with a staggering $1,000 bounty on his head.

Tracking down the unexplored circumstances of John Cook’s life and disastrous end, Steven Lubet is the first to uncover the full extent of Cook’s contributions to Brown’s scheme. Without Cook’s participation, Brown might never have been able to launch the insurrection that sparked the Civil War. Had Cook remained true to the cause, history would have remembered him as a hero. Instead, when Cook was captured and brought to trial, he betrayed John Brown and named  fellow abolitionists in a full confession that earned him a place in history’s tragic pantheon of disgraced turncoats.

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What about the First Amendment?

Tracie Egan Morrissey was extremely upset (rightfully so, I guess) about a rash of racist and hate-filled tweets that followed Barack Obama’s re-election last Tuesday, some of them from high school students. In a follow-up post on Friday, Morrissey displayed a number of the tweets from high-schoolers (identified by name and school), reported on her efforts to urge administrators at their high schools to punish the students for violating the student code of conduct or some such, and reported on the responses (or non-responses) of school officials. Katy Waldman at Slate wrote a take-down of  these efforts, pointing out that teenagers think, say, and do stupid things all the time; while calling attention to the tweets is fair game, trying to have them punished for them seemed “petty and vindictive.”

Worse, Morrissey’s stunt ignores the First Amendment. Most of the tweeters she identifies attend public school, so I am not sure on what basis a school should be able to punish these students or why she believes urging them to do so is a good idea. The scope of student speech is ever-narrowing, particularly on-line speech, which neither courts nor school administrators seem to understand. But none of the tweets that Morrissey describes should fall within the ambit of school regulation. There is no indication they were sent during school hours or that they were directed to the school; the students were talking to the public at large, engaging (however stupidly) in the broader public dialogue. Schools should be encouraging that engagement. And while we hope schools educate their students about the need for civil discourse, it is not and should not be their role to police students outside the school walls. Similarly, school “codes of conduct” are not intended to control student conduct 24/7. I would be quite troubled if any of the schools tried to do so or if a court allowed them to.

This also makes Morrissey’s piece troublingly demogogic. She is attempting to shame school officials to drastically expand their authority in a way that should raise First Amendment alarms, to shame school administrators for not violating the First Amendment rights of their students, and to set the students up to have their rights violated by over-officious school officials.

Finally, a word to the student authors (as well as everyone else saying stupid things on Twitter or anyplace else on the interwebs): Your account was not hacked, so just stop. I will defend to the death your right to air your insipid thoughts in a visible public forum 140 characters at a time. But if you go there, own what you say and let the chips fall where they may.