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Author: Howard Wasserman

2

The political is the personal

One of the venerable “predictors” of a presidential election is the World Series winner–American League team means Republican president, National League team means Democratic president. It has held 16 out of 26 times (when I first learned about it in a freshman poli sci class in 1986, it had held 13 out of 20 times).

Now, I’m a Cubs fan, so my rooting and political interests generally align (not that anyone is worrying about the Cubs playing in the World Series). My wife, however, is an Orioles fan and I have been watching and rooting for them (and wearing a ’70s-era bird hat) as a show of spousal support. But with the election fast-approaching, Obama’s polls tanking, and Andrew Sullivan losing his mind, I am beginning to wonder if I should continue rooting for an AL team right now. What should I do?

By the way, if you are looking for other sports-related predictors, try this: If the Redskins win their final home game before the election, the incumbent party retains the White House. This has held in 18 of the last 19 elections. The ‘Skins play the Carolina Panthers on November 4.

14

The return of the Infield Fly Rule

Law-and-sport types are having fun this morning (at least those not living in Atlanta) because everyone is suddenly talking about our favorite rule in all of sports–the Infield Fly Rule. Lawyerly fascination with the Rule was captured in William Stevens’s famous 1975 “Aside” in the Penn Law Review. It remains the most legalistic of rules in the most legalistic of sports. And if you can explain it to someone, you know baseball.

In last night’s Wild Card playoff game between Atlanta and St. Louis, the umpire made a controversial infield fly call on a fly ball into short left that fell when the Cardinals’ shortstop  and left-fielder miscommunicated; the shortstop had settled under the ball and looked ready to make the catch, then ran out of the way when he thought the left-fielder had called him off. (Video here). The call took the Braves out of what would have been bases loaded/one-out situation, trailing 6-3; instead, there were two out and the Braves did not score again. The game was delayed for 18 minutes when Atlanta fans began throwing stuff onto the field. The Braves played the game under protest, but MLB denied the protest and upheld the Cardinals 6-3 win.

What we have here is a nice example of statutory interpretation; whether the call was correct depends on how you resolve the conflicts among textualism, history, and purposivism.

The text of the rule requires only that the ball “can be caught by an infielder with ordinary effort.” Commentary to the rule (call it legislative history or committee notes) points out that the rule’s applicability is not subject to “arbitrary limitations” such as the baselines or grass, so the fact that the ball was hit into the outfield does not matter. The rule also can apply even if the ball is handled by an outfielder (as happened here), if the umpire determines that it could have been as easily handled by an infielder. So far, watching the play with the text in mind, the call seems right. But the purpose of the Rule is to prevent an infielder from dropping the ball  on purpose and getting a double play on the base runners who had to stay put on the short fly ball. Given how deep the ball was hit, there was no way the runners would have been doubled off and no way the shortstop would have tried. So the interests served by the rule were not implicated on the play, thus purposivism suggests the call was wrong. Now the question is whether you believe text or purpose controls.

In addition, the play had procedural problems. The Rule requires the umpire to “immediately declare” infield fly “[w]hen it seems apparent” that the rule is catchable by an infielder with ordinary effort. The commentary emphasizes that “the decision should be made immediately.” If you watch the replay that begins at the 0:55 mark on the linked video, however, the umpire makes the call really late, probably because it took longer than usual for it to become “apparent” that the ball was easily handled by the infielder. But note that the Rule also states that the obligation to “immediately declare” infield fly is for the benefit of the runners, not the batter; the batter is out on the call, so the goal is just to give runners notice of the play (the ball is live and runners can move at their own risk). Since neither baserunner was disadvantaged by the call, the lateness did not affect them. The only thing the lateness of the call did was heighten the confusion surrounding the play and therefore the fan and player anger over the call.

So my instinct is that the umpire got it right, however odd the play looked. Either way, I’m just glad to be able to write and talk about the rule.

2

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

This is kind of neat: It charts political donations by first names (the set covers names appearing 25 or more times in the databases of contributors to the two major-party presidential candidates), trying to also sort by gender. It shows some definite patterns in names that lean one way or another. There even are differences between full names and nicknames (i.e., Christopher leans Republican while Chris leans Democrat; you get increasingly Republican as you go from Liz to Elizabeth to Betty). This somewhat maps onto the gender divide between the parties (since women lean Democrat) and perhaps to the age divide (common first names can be cyclical). It probably also maps onto ethnic divides, as some first names are more common in racial or ethnic groups that lean one way.

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

0

Action subject to judicial review v. judicially reviewable action

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

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

2

This week in jurisdictionality

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

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

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

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

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

5

What were they thinking? or Not so bad?

A colleague sent me this story from the Jewish Daily Forward: Amazon will no longer sell a 250-piece Jigsaw puzzle featuring a picture of Dachau Concentration Camp. The puzzle, marketed as appropriate for ages 8-and-up, met with objections from German legislators, as well as the head of the Dachau memorial.

I want to raise two points and I ask them honestly. I am not trying to be deliberately provocative.

1) I was struck by the comment that the head of the memorial wanted an investigation into whether prior sales of the puzzle were unlawful under German law, once again demonstrating how the U.S. departs from other countries on the subject of the freedom of speech. We can debate whether the puzzle is offensive or in bad tatse. But unlawful?

2)  Is this really that offensive? The picture was taken by Robert Harding, a well-known international travel photograph who has had many photos made into puzzles. He also has taken a number of photos of Dachau. The picture itself  is not disrespectful (at least reports don’t suggest that it is); it is an image of a historical place where something awful happened, something that we should remember. I assume no one would object to anyone selling the photograph (although maybe I am wrong on that).

It seems to me that puzzles are simply one way of creating or presenting a picture or photograph. There is nothing wrong with having that picture be somber or meaningful or emotional, as long as the picture created is respectful or tasteful. We have puzzles of great works of art; why not also of photos of historically significant places or events. There were comments in the story about a “toy” being a “trivialization” of the events there. But this is not Dachau action figures or Dachau trading cards. Perhaps it is inappropriate for children and eight is too young as the target audience for the puzzle. But the call was for a total ban on (and suggestion of illegality of) all sales, not just a change in marketing.

3

Legal Humor

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

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

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

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

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

“Boy, I hope those were ducks.”

1

Glad to be here

I am delighted to be back at CoOp for what is becoming a quadrennial visiting stint–my last time guesting here was October/November 2008. A lot was happening back then, obviously–a crashing economy and the run-up to a historic presidential election, with the latter providing some great Fed Courtsy stuff to write about (thinking about the standing issues in the original birther lawsuits, among others). For the moment at least, the election-related litigation this time around has been focused in state court (the challenge to the Pennsylvania voter ID law) and/or on substantive election-law and constitutional issues (the early-voting processes in Ohio). But you never know when things will get interesting.

My initial focus this time around will be on opening week at the Supreme Court. The first two days of oral argument include three cases dealing with federal subject matter jurisdiction; two explore issues of jurisdictionality and the line between merits issues and jurisdiction issues (one of my long-held scholarly interests) and I will be writing about the third case for SCOTUSBlog over the course of the Court’s term.

Another thing to watch for this week is the mainstream media coverage of tomorrow’s first oral arguments. Given how last term ended and all the discussion over the summer about leaks about the internal workings in the ACA case and about conservative rage at the Chief, I expect a lot of ink/pixels to be spilled speculating whether they seem to be getting along and whether there are signs of leftover tension.

3

Thank you and good-bye

Thanks to Deven and the rest of the CoOp crew for allowing me to spend some time here, and even to hang around for an extra week. I know there is some reader overlap between my regular spot at Prawfs and here, but it was a nice chance to reach to a new group of readers. And I appreciate the many comments to some of my posts; there was some engaged and engaging conversation.

One thing I have found interesting in the past month is the difficulty of writing about procedure when it is linked to politics, especially a presidential election when passions are running high; it often becomes difficult to separate the procedural issues from the substance of the election. So if procedure and politics are tough, how about sports and politics? How did some of the sports predictors do this presidential election?

1) Prior to this year, in 16 of the 17 presidential elections since the Redskins moved to Washington in 1937, the outcome of the team’s final home game before the election has matched the electoral result: A ‘Skins win and the incumbent party retains the White House, a ‘Skins loss and the incumbent party loses the White House. Make it 17 out of 18: The Redskins were pounded by the Steelers at home on Monday and the non-incumbent party won the White House on Tuesday.

2) One of the more venerable predictors has been the World Series winner (I learned about it in my freshman government class in 1986): American League team means a Republican President, National League team means a Democratic President. From 1952 until 1976, it worked every year. Then from 1980 until 1996, it worked only once–the Detroit Tigers and Ronald Reagan in 1984. But we now are 3-for-3 in the new Millenium–Bush/Yankees in 2000, Bush/Red Sox in 2004, and now, Obama/Phillies.

3) Finally, the election to which this one is most-often compared (in terms of potentially marking an ideological and generational political sea change behind an eloquent leader) is Ronald Reagan’s win in 1980. The last time the Philadelphia Phillies won the World Series? 1980. Some food for thought.

Thanks again to CoOp for inviting me to write and to all of you for reading.

2

Teach your children well

At Prawfs, Sonja West and Paul Horwitz both talk about the world that we introduce to our children in the wake of Obama’s election, let me share the following:

My wife and I decided to tell our almost-three-year-old daughter about Obama this morning, mainly because we were so excited about it. My wife explained that the country had chosen a new “boss” (give us a break, we were talking to a 3-year-old), a man named Barack Obama, who seemed like a very nice man who believed in many of the things we do, including tzedakah (the Hebrew word for righteousness, which includes within it concepts such as charity and justice, and something that they talk about in her pre-school). We then told her that Obama showed that she could be anything she wants when she grows up; she responded that she wants to be a teacher. Tonight at bed time, she brought up that Mommy had told her she could be the boss or she could be a teacher when she grows up. I agreed that she could be whatever she wants to be and do whatever she wants to do. Her response:

“OK, when I grow up, I want to be Barack Obama.”

So do I, Lily. So do I.