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Justice Finally Done

[ 69 ] March 27, 2015 |

I argued that year that the United States should not have given a second’s consideration to extraditing Amanda Knox had she been re-convicted of a murder she plainly didn’t commit.   Fortunately, this action will no longer be necessary.    Glad someone else in the Italian judicial system finally stepped into the grown-up chair.

The Amateurism Fallacy

[ 88 ] March 27, 2015 |

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When you boil them down, defenses of the NCAA cartel boil down to a “if things were different, they wouldn’t be the same” argument.  Allegedly, the mystique of the NCAA comes down to players being forbidden from receiving anything but scrip as direct compensation, and also having extraordinary, unique bans on third party compensation that don’t apply to any other students imposed on them.  People are not offended by everyone else in the NCAA raking in as much cash as they possibly can, but end the exploitation of players in high-revenue sports and the edifice would crumble.

The most important response to this argument, of course, is “who cares?”  If the popularity of NCAA sports depends on gross exploitation and egregious double standards, then it’s not worth saving.  Sentimentality and trivial aesthetic preferences are pathetically weak justifications for denying the people taking the most risk and generating the most value fair compensation.

But here’s the thing: I don’t believe that the argument is correct on its own terms.  Owners asserted, after all, that free agency would destroy the popularity of pro sports, when in fact the popularity of pro sports exploded after free agency.  What fans will rant about to talk radio hosts has little connection with their future behavior.  In comments in the last thread, I think djw put the point brilliantly:

What’s particularly absurd about the first complaint is that at big-time sports schools, Football and Basketball resemble a professional team already in all the relevant ways: some of the best athletes in the world who treat athletics like more than a full time job, extremely high level of competition and performance, tons of money, marketing, and TV contracts, lots of people making obscene amounts of money, world class facilities, etc. The only real difference is that the people who do the most important and risky labor don’t get paid/get paid in dubious company script. It’s enormously popular.

On the other hand, there are hundreds of DII and DIII schools where the same sports teams resemble the amateur ideal a great deal more–no compensation, HS+ level facilities, part-time coaches, practice and travel schedules that let athletes be students in a meaningful sense, etc. Nobody cared. I attended one of those schools, I only heard my team was playing for a national title by watching sportscenter. (But I did watch UW on TV every week).

Bitter scribe’s assumption is that even though every single step toward professionalism so far has made college sports more popular, that one last step will someone how ruin everything. Let’s just say he’s got a substantial unmet burden of proof here.

The fact that the popularity of college sports is inversely correlated with how closely they embody the Noble Ideals of Amateurism makes claims that compensating players fairly will destroy college sports implausible in the extreme.

Larry Tribe: The Crank Years

[ 44 ] March 27, 2015 |

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Chait has an amusing discussion of Laurence Tribe’s willingness to cash paychecks from Big Coal to make arguments better suited to the CATO institute blog:

Tribe is playing an important legal role, which has to be evaluated on its own terms. Other law professors, like Richard Revesz, Jody Freeman, and Richard Lazarus, have called Tribe’s legal argument frivolous and absurd. Tribe has responded. But aside from the legal case Tribe has devised, his advocacy is also playing a crucial public role in the debate — even liberal professor Laurence Tribe noted that Obama’s climate regulations must be unconstitutional, which sounds very different from even coal company lawyer Lawrence Tribe agrees that Obama’s climate regulations must be unconstitutional. Should anybody put weight on Tribe’s endorsement of the anti-Obama lawsuit, any more than they should have taken Harvard law professor Alan Dershowitz’s word for it that O.J. Simpson was innocent?

The question of whether Tribe is arguing in bad faith is difficult to answer. His fetish for bad states’ rights arguments did not begin here, although as far as I can tell he’s certainly never made any claims this remotely this bad or this radical before. As Paul has previously observed, at Tribe’s particular position in the legal profession asking whether he’s arguing in bad faith is almost a category error, like trying to figure out what the leader of a large brokerage party “really thinks.”

The more important question is whether his arguments are at all plausible, and…they are in fact strikingly terrible. They push far beyond current federalism doctrine to reach results with appalling consequences. Taken together, if applied seriously the arguments he’s making would threaten huge swaths of the United States Code. I’m particularly gobsmacked that he would embrace a favorite argument of radical libertarians, “the contemporary regulatory state is unconstitutional because the takings clause“:

Second, the constitutional arguments are wholly without merit. Tribe argues that EPA’s rule is an unconstitutional “taking” of industry’s private property under the Fifth Amendment because government regulation of power plant pollution has not covered greenhouse gas emissions until now. The clear implication of Tribe’s novel view of the Constitution is that the coal industry, and the power plants that burn their coal, possess an absolute constitutional property right to continue to emit greenhouse gases in perpetuity. No Supreme Court opinion has ever announced such a preposterously extreme proposition of constitutional law. Nor has even one single Justice in more than two centuries of cases endorsed such a reading of the Fifth Amendment.

If Tribe were right, government could never regulate newly discovered air or water pollution, or other new harms, from existing industrial facilities, no matter how dangerous to public health and welfare, as long as the impacts are incremental and cumulative. The harm EPA seeks to address with its power plant rule not only affects future generations, but also current ones already managing the impacts and risks of climate change. Indeed, after an unprecedented and exhaustive scientific review, EPA in 2009 made a formal finding that greenhouse gases already endanger public health and welfare. The D.C. Circuit upheld this finding, and, given a chance to review it, the Supreme Court declined. This is important because it makes it all the more astonishing that Professor Tribe has himself determined that greenhouse gases do not pose the kind of risk that government is entitled to address, unless it is willing to compensate industry for its losses. It is hard to imagine a more industry-friendly and socially destructive principle than this.

Thankfully, this principle has no basis in constitutional law. The Supreme Court has repeatedly made clear that the Fifth Amendment’s Takings Clause does not shield business investments from future regulation, even when that regulation cuts sharply into their profits. The Constitution protects only “reasonable investment backed expectations,” and there is simply no reasonable expectation to profit forever from activities that are proven to harm public health and welfare. Certainly the coal industry uniquely enjoys no special exemption from this fundamental constitutional rule.

The nondelegation and anti-commandeering are no better, and any of them could have been made by Richard Epstein himself. I don’t really care whether Tribe believes them or not; what matters is that they all need to be killed and the earth salted before they could reemerge. They would be embarrassing if they were being made for good policy ends, let alone being made to protect the interests of polluters and increase carbon emissions during an environmental crisis. And I’m note sure he’ll be able to get even Clarence Thomas’s vote for the constitutional arguments.

Tribe has made many salutary and important contributions to constitutional law. Where’s he’s coming from here, I have no idea.

Reid Retires

[ 129 ] March 27, 2015 |

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Harry Reid is retiring — an a presidential cycle, luckily. Kilgore on his legacy:

We’ll soon get around to appreciations of what Reid accomplished and tried to accomplish, and an assessment of the contest to succeed him as Senate Democratic Leader (Chuck Schumer and Dick Durban are the most likely candidates). I think he will be most remembered as the Senator who finally began restricting the out-of-control use of the filibuster, though he also deserves significant credit (or blame) for how the Affordable Care Act was put together and enacted. For now we can just marvel at his long and very significant career.

I’ve said this before, but I think Ed’s assessment of Reid’s work on the ACA is far too equivocal. It seems ever more obvious in retrospect that what’s surprising is not that something much better than the ACA couldn’t pass but that Reid and Obama were able to get 60 votes for anything. Certainly, the next person with an even slightly plausible argument explaining how he could have gotten the votes of Lieberman, Bayh, Nelson, Landrieu, Lincoln, et. al for, say, a meaningful public option will be the first. There were certainly more liberal senators than Reid, but I’m not sure how many of them would have been more effective parliamentarians. He was very good at his job at a time when the Democrats really needed him to be.

Mike Pence Makes Idiotic Argument to Defend Horrible Law

[ 62 ] March 26, 2015 |

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It should go without saying that Indiana’s Restoration of Bigotry Act is an abomination. I can’t resist, however, noting this particularly asinine defense of the statute from the governor:

“This bill is not about discrimination, and if I thought it legalized discrimination in any way in Indiana, I would have vetoed it,” Pence said in his statement Thursday. “For more than 20 years, the federal Religious Freedom Restoration Act has never undermined our nation’s anti-discrimination laws, and it will not in Indiana.”

Uh, can someone show me where the federal RFRA permits burdens on religious liberty to be invoked in suits between private parties? Because it seems to be missing from my copy of the statute. Which seems relevant, since such a provision is in Indiana’s statute and is what will undermine the state’s anti-discrimination laws. I concede Pence’s point: if the law he signed was different it would have different effects. The one he did sign, however, is a disgrace.

…relevant!

On Foodie Elitism

[ 295 ] March 26, 2015 |

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Don’t live on the west coast? None of this until summer for you!

 

The mockery of Mark Bittman’s “turns out the Bay Area is a nice place to live with many available foodstuffs” column has been swift and inevitable. But there are also some substantive issues at stake here, and Phoebe Maltz Bovy’s response is devastating:

The true villain for the food movement isn’t someone who buys fast food when they should be eating lentils. It’s someone who, despite having the resources to do so, hasn’t researched where his or her food comes from. Grocery shoppers’ desire to purchase fruits and vegetables—a seemingly admirable, or at least innocuous, one—is recast as consumer demand for out-of-season produce—the height of decadence. In 2011, Bittman had some harsh words for these consumers:

[…]

Bittman lamented the fact that “we have ceased to rely upon staples: long-keeping foods like grains, beans, and root vegetables, foods that provide nutrition when summer greens, fruits, and vegetables aren’t readily available.”

Is Bittman relying on root vegetables in Berkeley? When he’s in Rome learning the craft of pasta sauce? Or when he was on a food tour of Spain with Gwyneth Paltrow and Mario Batali? Along similar lines, I became somewhat less impressed with David Tanis’s remarks about how he for one is going to stick with “end-of-winter vegetables” until the “local and seasonal” green ones sprout, when I noticed he’ll be giving a cooking workshop in Sicily this April. I point these things out not (just) out of culinary envy of New York Times food writers, but because it genuinely does mean something different to be a strict locavore if you travel around all the time, or live in grocery-endowed part of California, or both.

In addition to the problem that being a “locavore” isn’t much of sacrifice if you live on the California coast or can afford to travel wherever you want, there are the additional problems that 1)relying solely on local produce requires, you know, plenty of money and 2)in the vast majority of places it would be completely unsustainable if more than a minority did it anyway.

Look, I like farmer’s markets and the local co-op; I try to buy as much localish produce as availability and budget permit. But I also appreciate well-stocked supermarkets with decent produce to go along with other staples. And as to the idea that I shouldn’t have access to most vegetables for 9 or 10 months a year unless I can move to Berkeley, go to hell.

Supreme Court Side With Rights of Women Against Employers. (You read that correctly.)

[ 23 ] March 26, 2015 |

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No longer stands for “Unlimited Pregnant woman Sacking”

You do this long enough, and you’ll see everything:

Based on this test, the majority rejected the Fourth Circuit’s summary dismissal of Young’s claim. Young was able to present at least some evidence that she was treated differently than other non-pregnant employees with similar limitations related to heavy lifting, and hence her case was dismissed prematurely. Justice Alito — not exactly a bleeding heart on employment discrimination cases — found that it “is not at all clear that respondent had any neutral business ground for treating pregnant drivers less favorably than at least some of its nonpregnant drivers who were reassigned to other jobs that they were physically capable of performing.”

If there isn’t a settlement, it will remain up to the lower courts to determine if she can prove her discrimination claim. But at least she will be allowed to make her case.

So while Young did not get the court to embrace the broadest interpretation of the statute, the decision must be considered a victory. “The court made clear that employers may not refuse to accommodate pregnant workers based on considerations of cost or convenience when they accommodate other workers,” Samuel Bagenstos, the Michigan Law School professor who represented Young before the Supreme Court, told me. “It’s a big step forward towards enforcing the principle that a woman shouldn’t have to choose between her pregnancy and her job.”

We still don’t know if Peggy Young’s strong case will ultimately prevail. But when the Roberts Court issues a ruling that sides with the workers and gives greater protection to women, it’s a reason for both surprise and celebration.

A few additional notes:

  • This case was apparently written from an alternate universe in which Stuart Taylor knows what he’s talking about. For the first time in an important case, Roberts and Alito but not Kennedy joined the Democratic nominees.  When I read the Alito concurrence I keep looking for the angle but it’s reasonable enough that I certainly would have signed for it after oral argument. Let’s just say I’m happy that I didn’t have the opportunity to bet on the vote alignment in this case.  I’m not saying that Bagenstos is the greatest Supreme Court advocate since Daniel Webster, but I’m not not saying either.
  •  As Irin Carmon observed on Twitter, Kennedy’s dissent is another one of his “I had to rule against your rights, ladies — I’m not prepared to go as far as a Trotskyist like Sam Alito — but I’m a nice guy, honest” specials.
  • The Scalia is dissent is pretty much all spittle and no gin, but it must be acknowledged that it almost certainly sets the record for uses of the word “poof” in a Supreme Court opinion.
  • More commentary from Lithwick and Leber.

The Satirical Novel We’re All Living In Continues to Lack Subtlety

[ 169 ] March 25, 2015 |

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Shorter Verbatim Buckley “Yes of course Tucker Carlson’s brother is named Buckley” Carlson: “Great response [DeBlasio Spokesperson] Amy Spitalnick. Whiny little self-righteous bitch. “Appalling?” And with such an ironic name, too… Spitalnick? Ironic because you just know she has extreme dick-fright; no chance has this girl ever had a pearl necklace. Spoogeneck? I don’t think so. More like LabiaFace.”

What a wit!

Meanwhile, in attempting to play the good cop, his brother remains the most irritating concern troll in the known universe.

…see also.

On Marijuana Policy Reform, Senate to Do What it Does Best: Nothing

[ 16 ] March 25, 2015 |

Proponents of the strongest version of the War (On Classes Some People Who Use Some) Drugs ain’t going down without a fight:

But the Senate Judiciary Committee is emerging as a serious buzz kill for the pro-reform set.

The powerful panel is stacked with some of the most senior lawmakers in Congress, many of whom came to power during a tough-on-crime era of the drug wars that saw stiffer penalties for drug possession. Several of them openly gripe about what they call the Obama administration’s lack of enforcement of existing federal drug laws — and they certainly aren’t willing to send a signal that Congress is OK with the movement to liberalize pot.

“I’m probably against it,” Sen. Orrin Hatch of Utah, the most senior Senate Republican and a member of the Judiciary Committee, said of the cannabis bill

“I don’t think we need to go there,” added Sen. John Cornyn of Texas, the No. 2 Senate Republican and former Texas attorney general and state Supreme Court justice. “This is a more dangerous topic than what a lot of the advocates acknowledge.”

Republicans most recently made news on the marijuana front in December, adding language to a spending bill that effectively blocked sales of pot in the District of Columbia — where, a month earlier, voters overwhelmingly approved a legalization measure.

But the slow boring of hard etc.  Good for Gillibrand et. al for putting this on the agenda.

We Must Kill the Free Market In Order To Protect It, NCAA Cartel Edition

[ 212 ] March 24, 2015 |

bcs_200Above: A Sponsorship That Must Have Been Given Away For Free Because the Noble Ideals Of Amateurism (TM)

This genre of NCAA lickspittlism might be my very favorite. “NCAA players have absolutely no value that contributes to a billion-dollar industry. People cheer for laundry, coaches, and administrators, not specific players. In conclusion, we need to completely eliminate the market so that players cannot be paid.” I mean, “we must preserve the Noble Ideals of Amateurism” is a terrible argument that is neither attractive in itself nor remotely relevant to the actually existing NCAA, but at least its assumptions don’t immediately collapse on themselves even in theory.

Somewhere, Michael Bloomberg and Rudy Guiliani are Green With Envy

[ 116 ] March 24, 2015 |

Arbitrary police harassment of citizens in Chicago is remarkably pervasive:

Perhaps the most startling finding of the ACLU report is that during the summer of 2014, CPD conducted more than a quarter million stops of civilians that did not lead to an arrest. When comparing that number of stops to population in Chicago versus New York City at the height of that city’s controversial use of the stop-and-frisk practice, Chicagoans were stopped more than four times as often as people in New York. Stops per 1000 residents was 93.6 in Chicago, compared to 22.9 (at the highest point in 2011) in New York City. The New York police have been forced to curb significantly their use of stop-and-frisk after a federal judge found the use in that city to be unconstitutional.

4 times more often than Bloomberg’s New York? Jesus.

You may be unsurprised that these arbitrary stops were not conducted in a racially neutral manner:

According to data from calendar year 2014 analyzed by the ACLU, African Americans represent nearly 72% of all the stops in the City of Chicago, as compared to the reality that African Americans represent only about 32% of the City’s population. The data analyzed by the ACLU shows that stops most commonly take place in the districts with the largest minority populations. For example, in 2014, police conducted 266 stops per 1000 people in the Englewood area (which is predominantly African American) while the rate in predominantly white Lincoln/Foster district was just 43 per 1000 people.

However, the data also shows that African Americans are much more likely to be the target of stops in predominantly white neighborhoods. Thus, in Jefferson Park where the population is just 1% African American, African Americans account for a full 15% of all stop-and-frisks in that area. In the Near North District, where the African American population is 9.1%, African Americans are subjected to more than one-half (57.7%) of all the stops. The ACLU report concludes that “black citizens are disproportionately subjected to more stops than their white counterparts.

Equally unsurprising is that many of the stops were not legal even under the very forgiving standard established by Terry v. Ohio:

The report also explores the problems with the reasons for many of the stops are taking place. Each time a Chicago Police officer makes a stop, the officer is required to fill out a “contact card” collecting information about the person who was stopped and why the stop took place. The ACLU’s review of a randomly-selected number of contact cards from selected months in 2012 and 2013, they found that in half of all stops reviewed the officer failed to record a legally sufficient reason for initiating the stop. In a number of other instances, police stated that they stopped someone for a reason that was unrelated to criminal activity (associating with others who were suspicious, for example) or asserting that someone “matched a description” without any explanation of how or what description was matched. In spite of this poor performance, the City reported that it has no record of police officers receiving additional training after the academy in proper procedures for stop and frisks—training that seems to be needed greatly.

What’s even better about these systematic violations of civil liberties is that there’s no evidence that they actually improve public safety.

The Cruz Candidacy

[ 96 ] March 24, 2015 |

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I don’t think Cruz is likely to win the nomination, but I do think he will play an important role nonetheless:

Cruz is a long shot to win the nomination, but he is a canny politician with enough of a base of support to act as an ideological enforcer during the primaries. And one of the most important orthodoxies he will be policing is total, uncompromising opposition to what will invariably be referred to as “Obamacare.”

Another notable aspect of Cruz’s announcement was the date: Monday was the fifth anniversary of President Obama signing the Affordable Care Act. The significance of this was swiftly grasped. Republican power broker William Kristol explained the symbolic importance of the date to his Twitter followers, and added that if “he makes zeal for repeal AND real plan to replace a centerpiece of his run, has a shot.”

Somehow I doubt that Cruz will propose that replacement.

It’s nice that Bill Kristol has come up with a zingy one-liner to describe the drive to take health insurance away from more than 10 million people.  (The fact that he thinks Cruz has a shot is reassuring, though.)

Some additional links: Nate Cohn has a good explanation of why Cruz is a longshot; Dara Lind explains why Cruz is eligible to run for president despite having the distinction of being born in Calgary; and Josh Israel has a good tip of the iceberg of Cruzian wingnuttery.

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