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Author: Adam Benforado

1

The End of the Game?

As more and more studies are conducted showing that referees are subject to significant biases beyond their conscious awareness (and, sometimes, in quite plain view . . . yes, hello there, Mr. Donaghy), I wonder how soon we will finally see the death of the “judge as umpire” metaphor (at least in confirmation hearings).

Yesterday, I came across this article about researchers at Rotterdam School of Management, Erasmus University, who found that when faced with ambiguous foul situations, soccer referees were significantly more likely to award a foul to the taller of two involved players. The study involved analyzing over 100,000 fouls committed over a seven year period and is to be published next month in The Journal of Sport & Exercise Psychology.

The work aligns with a growing stack of papers showing that, well, referees are human—swayed by elements in their situations even when they believe they are being utterly objective. At the end of last year, for example, academics in the United States published an article in The Journal of Sports Sciences finding that college basketball referees were biased against visiting teams and that the larger the difference in fouls between two teams, the greater the likelihood that the next whistle would go against the team that had fewer fouls. Other recent studies have found similar home-team bias in the English Premiership (see here and here). And, of course, back in 2007, there was the research on NBA officiating showing that white referees were more likely to call fouls against black players than white players.

As someone who has objected to the judging/refereeing analogy on other grounds before, I, for one, am hoping that the weight of the evidence finally dissuades judges and justices from employing it.

14

“With All Due Deference to Separation of Powers”

As Gerard points out, of the many interesting facets of President Obama’s State of the Union last night (Biden’s choice of a purple tie to signal renewed bipartisan vigor; Justice Ginsburg nodding off, at points, in the front row; Nancy Pelosi’s cold; etc.), Justice Alito’s reaction to the Obama smack-down of Citizens United may have been among the most riveting.

What really intrigued me, however, was not Alito’s reaction, but Obama’s decision to directly criticize a recently decided case with members of the Supreme Court sitting directly below him. Indeed, when he chastised the Court, all of the members of Congress around the justices stood and clapped (see minute 46:07 here). Obama’s speech writers seemed to sense that this might not seem kosher to some observers and so they had him open his commentary on the case with the caution, “With all due deference to separation of powers . . .”

For the historians out there, I’m wondering how often other presidents have criticized the Supreme Court during State of the Union addresses or in other face-to-face interactions.

For everyone else, leaving aside your specific feelings about Citizens United, do you think that Obama’s choice to chastise the justices during the State of the Union is a threat to separation of powers?

1

Would You Like Some Constructive Criticism?

Today’s post on the upcoming law review submission period got me thinking. If it was feasible, would law professors like to receive feedback from law review editors with their rejections?

Written feedback is probably unrealistic outside of cases where an article is rejected at the very last stage of the game (where some law reviews already provide an explanation), but it’s possible that journals (or even Expresso) might adopt a quick online checklist that they could pass on to submitters (“The article was rejected because it was judged to be [select one or more]: (1) lacking in originality / derivative of other work, (2) in a topic area recently published/accepted by the journal, (3) too long, (4) poorly supported/cited, (5) unclear / too difficult to understand, (6) out-of-date / no longer relevant, (7) . . .”).

Learning that one law review rejected your article because they thought it was “poorly supported/cited” wouldn’t tell you much, but if you got ten such rejections that might help you in the next submission cycle. I think when a piece isn’t flying off the shelves, most law professors may have an inkling why that is, but, then again, they may not. The reservation your senior colleague, wife, or grandmother had about your article isn’t necessary the same one that a law review editor has.

Maybe more information is good and, for the thin-skinned of us out there, perhaps we can opt-into an alternative checklist that softens the blow:

Ο      Congratulations, we would like to accept your article.

Ο      I think we should see other people.

×      It’s not you; it’s me.

3

Tracking Hate Crimes

In my last post, I noted that in the FBI’s compilation of hate crime statistics released a couple months ago, Alabama, Georgia, and Mississippi reported only 24 hate crime incidents over the course of the year to the 1,637 reported in New Jersey, Massachusetts, and Michigan.

I found that shocking and questioned how it was tolerated.

Today, I happened upon a chart made by the Southern Poverty Law Center showing that there are 29 percent more hate groups operating in Alabama, Georgia, and Mississippi than in Massachusetts, Michigan, and New Jersey, which makes me even more convinced that the legal community needs to increase the pressure on these three southern states to seriously track and report hate crimes to the FBI.

One commenter on the last post suggested that the failure of Alabama, Georgia, and Mississippi to report such crimes has to do with an understanding by law enforcement that labeling certain crimes “hate crimes” is likely to prevent prosecutors from gaining convictions because the label threatens to undermine the “biracial consensus they need on juries.” I think that’s an interesting possibility, but even if it is true I don’t think that it ought to be an excuse. In my opinion, identifying certain crimes as “hate crimes” is not simply, as the commenter suggested, a “carpetbagger” worldview. Congress has determined that hate crimes exist and need to be tracked. And, in fact, both Mississippi and Alabama appear to have statutes that criminalize certain bias-motivated violence and intimidation.

It’s time for all states to get serious about eradicating hate-fueled criminal action and figuring out when, where, and how it occurs is a critical first step.

1

Turning up the Pressure on Alabama, Mississippi, and Georgia

Doing a little research for an article, I was just looking at a table from the FBI’s compilation of hate crime statistics broken down by state, released last November.

I was aware that, although the Attorney General is required to collect data on crimes manifesting evidence of prejudice, the compiled statistics are notoriously unreliable because of reporting problems; however, until I looked at the chart, I didn’t understand the degree to which certain states take the reporting seriously and others don’t.

In 2008, New Jersey reported 744 incidents, Massachusetts reported 333, and Michigan reported 560.

During that same time period, Alabama reported 11 incidents, Mississippi reported 4, and Georgia reported 9.

Particularly given the history of discrimination, intimidation, and violence against minorities in those three southern states, I don’t understand how this blatant failure to cooperate with the data collection is tolerated.

Lack of political will? An ambivalent media establishment? The haze of “post-racialism”?

Can anyone fill me in?

Oh, and happy MLK Day.

1

Exploiting Your Charity

Maybe this is an easy question (it’s certainly an old one): Should we punish you more if you defraud someone by tricking her into giving you money that she believes is going to charity than if you defraud someone by tricking her into giving you money that she believes is going into an investment that will make her rich?

Yesterday afternoon, I received a text message from the number for the Pennsylvania voter protection project that I did volunteer work for back in the fall of 2008:

Text HAITI to 90999 to donate $10 to the American Red Cross relief efforts in Haiti (Text STOP to unsubscribe Msg&Data rates may apply)

In the previous few days, I’d received a number of similar appeals from friends as result of efforts by the Mobile Giving Foundation (“The Mobile Giving Foundation brings the power and reach of mobile phones to nonprofit organizations as a new fundraising and donor interaction mechanism”) and other organizations.

From all accounts, the text message campaigns have been tremendously successful. According to organizers, by Thursday night, $2 million had already been raised for the Red Cross. However, the campaigns have also opened the ways for scammers of all sorts. As the FBI explained, in a warning issued last week, “Past tragedies and natural disasters have prompted individuals with criminal intent to solicit contributions purportedly for a charitable organization.” And, sure enough—as with 9/11, Hurricanes Katrina and Rita, and the earthquake in China—that appears to be happening again, which leads to the punishment question.

I would not be surprised to find out that some of the same folks behind the email schemes from the “desperate” Nigerian government official who offers several million dollars for your “help” are the same ones behind the new Haiti earthquake relief scams. Should they receive stiffer sentences for being convicted of perpetrating the latter than perpetrating the former? Anyone want to argue that they shouldn’t?

8

Is Rigorous Age Identification the Best Way to Prevent Negative Social Outcomes from Alcohol Consumption?

This holiday season, while visiting friends and relatives in Washington, D.C., I had the opportunity to go to a few of the fine restaurants that the metropolitan area provides. The food was excellent, the company even better, and the only odd thing was that on three occasions I was carded.

The three ID requests did not come at clubs or bars; they came at Washingtonian Top 50 restaurants.

I will happily accept that I have certain youthful features (my spry gait, for example), but, up close, I do not look anywhere near 20, which leads me to believe that (much to my chagrin) it was not the suppleness of my skin and a genuine fear that I might be a freshman in college that was prompting the age verifications. Rather, it appeared that the wait staff had been warned to be extremely, extremely cautious (indeed, when I inquired at Jaleo, I was told that a bartender at the restaurant had been dismissed on the spot recently as a result of an “underage sting”).

There is no doubt that alcohol abuse in the United States is a very grave concern, but is ensuring that food and beverage establishments review the driver’s license of anyone who might possibly be under 30 a prudent use of our limited resources? I, for one, question whether a “rigorous age identification” approach to preventing negative social outcomes from drinking is the appropriate one.

Indeed, it seems almost laughable when one considers the broader context.

Ordering a bottle of wine for the table to go along with the first round of tapas at Jaleo prompts a carding, but order a second, or third, and the waiter doesn’t bat an eyelash. Add a nice Port for desert and all you get is smiles. On your way out, as long as you don’t literally fall on your face, does anyone check to see if you can safely operate a motor vehicle? Or inquire into how many pints you’ve had when you leave the bar next door? (As a colorful detail, I’ll tell you that when I left one of the restaurants in Northern Virginia, there was a man, barely able to keep his balance, urinating against a building as the bouncer at the bar he had evidently just come out of paused in his ID-checking duties to look on and laugh.) And even if you’re well over the limit, how likely is it that you actually get pulled over when you drive home?

On New Year’s, we took a cab from D.C. back to Virginia (where we were staying) at two in the morning. Driving back on Route 66, I can tell you that I saw at least 10 drivers exhibiting clear signs of dangerous levels of intoxication (weaving, erratic speeds, and even attempts to backup on the highway after a missed exit). The police who were patrolling the highway had pulled over a grand total of three people of the hundreds passing by.

11,773 people died in alcohol-impaired driving crashes in 2008. Thousands more were injured or killed in alcohol-fueled violence. And millions of dollars of property was damaged by drunken individuals.

If D.C., Virginia, and other states want to eliminate these ills, they need to get more serious about treating the roots of the problems. Undercover ID inspections at fine restaurants isn’t going to do it.

The real solutions are far more difficult and costly. Among other things, we need to think sincerely about concentrating development and improving public transportation to reduce the number of people who drive while intoxicated. We need to consider taxing alcohol more heavily to reduce consumption and using the money to more rigorously police (and prosecute) antisocial behavior fueled by alcohol. We need to invest in alcoholism treatment programs and youth education. And we need to figure out acceptable ways to intervene in drinking behavior after the moment it is initiated.

5

Do We Need A Password Coordination Agency?

There is a lot of discussion out there about the injustice of bankers getting 8-figure bonuses—and I’m all for the ire (Too soon?  Yes, too soon.)—but, today, I’ve got more pressing matters on my mind.

Yes, there is a new 8-figure menace on the horizon.

Westlaw’s OnePass.

It seems that, once again, I must change one of my passwords. According to Westlaw, choosing a new 8-to-70-character-long password that must include uppercase letters, lowercase letters, and numerals (or special characters), will result in “more security, more control, [and] more convenience.”

Perhaps for Westlaw, but what about for me?

I’ve got so many passcodes in my head (for email accounts, checking accounts, personal and work computers, wireless routers, gas, electric, cable, and telephone company accounts, retirement accounts, student loan accounts, voicemail accounts . . . I could go on and on) that I’m either constantly forgetting them or I have them written down in embarrassingly obvious places. And every month it seems like I’m forced to change one or another (usually right at the moment that I have it committed to memory).

Enough is enough. I am hereby calling on President Obama and Congress to table this whole Consumer Financial Protection Agency business (in fact, better take a breather on global climate change, job creation, and terrorism, just to be safe) and focus on creating a new Password Coordination Agency.

We’ve seen the world of unregulated passwords and it is not pretty.

7

Blind Consumption

I was down in D.C. last Friday when the Anacostia River Cleanup and Protection Act first went into effect instituting a 5-cent fee on each disposable plastic or paper bag issued in the District.

The money is to go to cleaning up the Anacostia River (which badly needs it), but the main goal for the law is to change consumer behavior.

Although skeptics abound, I’m excited to see the outcome. Sure, five cents, isn’t much, but I think it’s enough to make people stop and think about their consumption.

With so much on our minds, we need a little encouragement. I happened to care a lot about clogged rivers and tributaries—and the environment more generally—but I find it hard without a little nudge to change my daily routines.

Today, on the way home from buying some books, I stopped into CVS for a half-gallon of milk and some cereal (see picture). When I got home I found that I’d been given eight bags to carry the three items (see picture)! (Somewhat ironically, the Washington CVS stores recently partnered with the D.C. Department of Environment to provide 112,000 free reusable bags to customers in the metropolitan area.  Hopefully, they haven’t been handing them out eight at a time.)

This needs to change and I, for one, would welcome the adoption of a similar law in my hometown.  Would you?

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On a side note, for those art and film lovers out there, there is a tremendous short film, Next Floor, engaging the theme of overconsumption, being shown until April 11, 2010 at the Hirshhorn Gallery in D.C. The film garnered the creator and producer, Phoebe Greenberg, the award for Best Short Film at the Cannes Film Festival in 2008. I highly recommend it.

4

Practical Advice for Victims of Stalking

I am very sorry to have to miss the AALS panel on Saturday, “The First Amendment Meets Cyber-Stalking Meets Character and Fitness,” as it looks to be a fascinating discussion. (Like many readers, I have enjoyed Danielle, Kaimipono, and Dave’s past posts on the topic).

In this post, however, I’d like to broaden the focus to include classic, old, “real-life” stalking and ask a rather simple question: What is the best practical advice to give someone who is being stalked?

It’s National Stalking Awareness Month and I’d love to hear from commenters about what they tell people who come to them seeking advice for dealing with incidents of stalking. In the past, I’ve had multiple friends who have suffered harassing phone calls, threatening emails, and physical surveillance from obsessed exes and over-zealous suitors and I’ve struggled to give advice that I thought would actually be effective in bringing a swift and final end to the abuse (without exacerbating the problem).

There is some good data on the internet but it is often difficult to wade through or outdated. Stalking: A Handbook for Victims by Emily Spence-Diehl, for example, is a useful resource and offers a step-by-step guide to addressing abuse, but it is over ten years old.

Given data on the prevalence of victimization (according to a national study released last year by the U.S. Department of Justice, Bureau of Justice Statistics (BJS), during a 12-month period 3.4 million people reported being the victims of stalking), I’m guessing that there are many Co-Op denizens that might benefit from learning about the latest proven approaches.

I’ll get the ball rolling by suggesting that one of the easiest ways to take action is to talk directly to a trained professional who can help design a stalking safety plan. The National Center for Victims of Crime (NCVC) can be reached at 1-800-FYI-CALL, M-F 8:30 AM – 8:30 PM EST. The NCVC can also be contacted by email at gethelp@ncvc.org.