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I think Bill Buckner can finally stop answering that question now

[ 51 ] September 28, 2011 |

buckner

Red Sox lose after leading with two out and nobody on in the bottom of the ninth. One minute later Longoria wins it for Tampa Bay against the Yankees.

Go Tigers!

I see Scott has been live blogging all this below. Craziest night in baseball history . . .

An inquiry concerning human understanding

[ 48 ] September 26, 2011 |

bo

Two incidents from yesterday’s NFL action:

(1) Detroit is punting from their own five in a tie game with Minnesota. The clock is running and Minnesota has no time outs. If Detroit calls a time out right before the play clock expires they will punt with 20 seconds remaining. Instead, they snap the ball with 26 seconds left, essentially giving Minnesota one precious extra play to get into field goal range (Luckily for the Lions some roided up Viking committed a personal foul on the play, probably saving the game and allowing the William Clay Ford ownership era to continue to move in the right direction after a bit of a slow start).

(2) Tennessee is up by three with a first down at their own 38 with 1:40 to go. Denver has one time out which means that if Denver stops the Titans they’ll be forced to punt with about 10-15 seconds left. On first down the Titans gain a yard. On the play they’re flagged for illegal procedure. Denver accepts the penalty rather than declining it, meaning that it’s first down again, thus allowing Tennessee to run out the clock without getting a first down (for extra added incompetence the Titans don’t realize this and run the ball twice, tempting the ghost of Joe Pisarck before realizing they can just kneel).

What you have here is gross clock mismanagement by coaches who collectively are paid millions of dollars to win football games. Any halfway alert fan who knows the rules — and these aren’t unusual or otherwise complex situations — would do a much better job of making these decisions.

There are a couple of explanations for this. The first is that football coaches are idiots but nevertheless a multi-billion dollar industry hires idiots to make key decisions. Now it’s not if there’s nothing to this (see Matt Millen’s brilliant career as an NFL general manager). Still in my view that’s far too simplistic an explanation. NFL coaching staffs have to manage complex operations that involve making hundreds of decisions every week — and dozens during every game — operations which require various kinds of intelligence (strategic, psychological, analytic, emotional etc) to pull off successfully. It seems implausible that coaches make these kinds of simple mistakes — and they make them all the time — because they’re simply dumb people in general.

Rather I think a more plausible explanation is that it’s extremely rare to find all the cognitive skill sets and relevant related experience that one would want a football coach to have in one person. Earlier this month on a flight to Detroit I ended up sitting to a great Michigan football player from the 1970s. He told me several stories about the team’s coach at that time, Bo Schembechler. Most revolved around Schembechler’s gift for inspiring players to believe in their abilities. “Bo,” he told me, “could make you believe that you could have won the Vietnam war single-handedly with a BB gun.” That of course is a much rarer skill than being good at clock management (which Schembechler was almost comically bad at).

Still it does make me wonder why big time football teams don’t employ some geeky kid — heck I would have done it for free for Bo in my younger and more vulnerable years — to just tell the head coach what to do about the clock as he’s busy trying to manage 17 other tasks while getting a bunch of guys to run through the metaphorical equivalent of a brick wall. And this applies to a lot of things in life besides football as well, like political leadership: expecting an inspiring politician to also be some sort of policy polymath is probably unrealistic (not that this is an argument for Peggy Noonan-style Odes to the Virtue of Stupidity, but still).

The Needle and the Damage Done

[ 58 ] September 22, 2011 |

The execution of Troy Davis says some things about our legal system which apply to lots of issues beyond the debate over the death penalty. I had some (very tangential) involvement in this matter, so I think I know the case well enough to say the following with confidence: Davis’s execution was a grotesque travesty of justice, but it also resulted in the legally correct outcome, if by “legally correct outcome” one means what law professors usually mean when they ask if a case was “correctly decided.”

In brief, Davis’s problem was that, if he wasn’t able to demonstrate, after his conviction, that he had not gotten a full and fair trial — and he wasn’t able to demonstrate this, because the trial he got pretty clearly met the standard of what counts as a “fair trial” in our criminal justice system, at least for the purposes of the existing state and federal laws — then the only way he could avoid execution was to convince the authorities reviewing his case that he was actually innocent. (The inimitable Justice Scalia went so far as to declare that even this wouldn’t be good enough for the purposes of a federal court review of his case, because “this Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.”).

Davis’s execution was a travesty of justice because, in my opinion, the chances are a good deal better than even that he didn’t murder Mark MacPhail. It’s more likely, in my view, that Redd Coles — the key witness in the case against Davis, and the man who went to the police in the first instance with the claim that Davis killed MacPhail — is MacPhail’s actual killer.

In retrospect the claim that Davis was guilty beyond a reasonable doubt for the crime for which he was executed is completely indefensible, but again, as a procedural matter, once Davis was convicted for the crime in what counts in our system as a fair trial (and he was), then as both a formal and practical matter Davis had to prove his innocence to a fairly high degree of certainty in order to avoid execution. This he was unable to do (I certainly don’t claim to know whether Davis was in fact innocent — I personally think the available evidence suggests he was, but that’s quite different from that evidence amounting to a genuine exoneration). So, as a formal legal matter, Davis’s execution did not involve any violation of state or federal law, even though he was probably innocent.

Now this realization should fill any decent human being with a sense of disgust, but it affects certain legal actors with something more like exasperation at the extent to which our current system refuses to achieve “finality” within a reasonable time frame. Justice Scalia’s dissent linked above could not be more clear on this point: what matters to him is whether or not the rules have been followed, and if they have then the execution of a probably innocent man is just one of those prices “we” must pay for all the wonderful things we get from the legal system.

As I have argued elsewhere, Scalia represents an extreme example of a certain kind of judge that positively revels in coming to conclusions that are morally revolting but “legally” sound. Judges of this type like these sorts of cases because they demonstrate that law is a supposedly nonpolitical and intellectually rigorous practice, rather than a touchy-feely exercise in doing what strikes the judge as the right thing.

What, after all, could be more nonpolitical and intellectually rigorous than executing an innocent man, simply because “the law” requires that result? In a perverse way, such bloody logic is a kind of advertisement for the supposed objectivity of the legal system, since we can assume that no sane decision maker would reach such a decision voluntarily. (The great legal historian Douglas Hay explained the 18th-century English practice of sometimes acquitting obviously guilty men on absurd procedural technicalities, such as incorrectly calling the defendant a “farmer” instead of a “yeoman,” in similar terms: “When the ruling class acquitted men on such technicalities they helped embody a belief in the disembodied justice of the law in the minds of all who watched. In short the law’s absurd formalism was part of its strength as ideology.”)

“The law’s absurd formalism was part of its strength as ideology.” Precisely. This insight applies to many more aspects of the legal system than the revolting spectacle of our contemporary system of capital punishment, which in a case such as Davis’s — which is not in this respect was not unusual — psychologically tortures the defendant, the defendant’s family, the victim’s family, and others connected to the case for literally decades before producing what the system then has the temerity to call “justice.” (The climax of this spectacle last night involved Davis being strapped to a gurney with a needle in his arm for nearly four hours, waiting for various legal personages to respond to the question of whether, all things considered, it was finally time to stop his heart with state-administered poison).

That we tolerate this kind of thing so readily helps explain, in its own way, why it sometimes seems impossible to do much of anything about the absurdities and dysfunctions of the system of legal education that legitimates it in the first instance. Or perhaps it’s the other way around: perhaps we tolerate the absurdity of something like the 22-year “process” that resulted in the horror of Davis’s final hours because we ‘re socialized from the beginning of our careers in this system to accept all kinds of absurdity and injustice as natural, inevitable, and therefore legitimate.

(C/P at ITLSS).

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Law school petition

[ 21 ] September 15, 2011 |

If you work at a law school, attended one, or currently attend one, please consider signing this letter:

“We, the undersigned, believe it is imperative that all law schools provide prospective law school students with information that will allow them to accurately assess their prospects for finding appropriate employment within the legal profession upon graduation from the schools they are considering attending. We therefore call upon the American Bar Association to require all schools it has accredited to release clear, accurate, and reasonably comprehensive information regarding graduate employment, by for example implementing the proposals outlined in Part III of the Law School Transparency Project’s white paper “A Way Forward: Improving Transparency in Employment Reporting at American Law Schools” ( http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1528862 ), so that prospective students may obtain adequate information regarding their likely future employment prospects.”

Name
Institutional affiliation or employer, if applicable
Law school attended and year of graduation, if applicable

*Institutional and employer affiliations are for identification purposes only

If you would like to sign the letter, send an email to: lawschoolpetition@gmail.com

Note:

This letter will not be published, nor will the identities of any signers be disclosed, until at least 100 current law faculty at ABA-accredited schools have signed it. This number represents little more than one percent of the tenured faculty at such schools. I will give occasional updates on how many signatures have been collected from law faculty, employed lawyers, law graduates, and current law students.

My worlds are colliding, and in a bad way

[ 57 ] September 14, 2011 |

rice palin

I remember the 1987 Great Alaska Shootout well. It featured heralded recruits (and Prop 48 casualties) Terry Mills’ and Rumeal Robinson’s first games as Michigan basketball stars, and we all stayed up to watch the first game, which started at midnight Ann Arbor time.

He shoots he scores.

The savage god

[ 11 ] September 13, 2011 |

A lawyer’s story.

Is student educational debt the next financial crisis?

[ 24 ] September 12, 2011 |

In the next few months outstanding student educational debt in the US will hit one trillion dollars (it’s already bigger than outstanding credit card debt). Apparently, until the federal government stopped guaranteeing future private educational loans in the summer of 2010 (all federal student loans are now directly from the government, although private banks still collect a fee for servicing them), private federally guaranteed educational loans were being used to securitize various financial instruments structured around the pleasant proposition that private banks could engage in “risk-free” arbitrage by issuing unsecured loans at high interest that were guaranteed against default by the US government.

Somehow that all sounds vaguely familiar . . .

There’s something happening here

[ 15 ] September 8, 2011 |

I found the comments that are being posted in response to the latest analysis of how utterly “misleading” (to put it as nicely as possible) law school employment numbers are to be particularly interesting.

The situation for current American law school graduates is of course merely a reflection of much more widespread trends throughout this country in particular and the world in general. In short, huge numbers of highly educated young people who had to borrow much or all of the money the spent acquiring extremely expensive undergraduate and professional educations can no longer get anything resembling real jobs. For example, if being a lawyer means actually practicing law (as opposed to being a $25 per hour document review monkey in a windowless room in the bowels of some NYC or DC Kafkaesque warehouse for white-collar serfs) then these people are not and will never be real lawyers. And they’ve got $200,000 of non-dischargeable debt in the bargain, which will be paid off eventually by taxpayers. And again the position of recent law grads is merely a reflection of things that are happening all across society, in any number of fields.

This is not, one would think, a socially sustainable situation.

Bear patrol

[ 20 ] September 7, 2011 |

The present version of security theater may soon be losing one of its more distinctive elements:

“You don’t take your shoes off anywhere but in the U.S. — not in Israel, in Amsterdam, in London,” said Yossi Sheffi, an Israeli-born expert on risk analysis at the Massachusetts Institute of Technology. “We all know why we do it here, but this seems to be a make-everybody-feel-good thing rather than a necessity.”

John S. Pistole, the TSA administrator, cites a travel industry survey that found shoe removal was second only to the high price of tickets in passenger complaints. But he is unapologetic about the practice.

“We have had over 5.5 [billion] people travel since Richard Reid and there have been no shoe bombs because we have people take their shoes off,” Pistole said in an interview last month with Business Travel News.

Homer: Not a bear in sight. The Bear Patrol must be working like a
charm.

Lisa: That’s specious reasoning, Dad.

Homer: Thank you, dear.

Lisa: By your logic I could claim that this rock keeps tigers away.

Homer: Oh, how does it work?

Lisa: It doesn’t work.

Homer: Uh-huh.

Lisa: It’s just a stupid rock.

Homer: Uh-huh.

Lisa: But I don’t see any tigers around, do you?

[Homer thinks of this, then pulls out some money]

Homer: Lisa, I want to buy your rock.

Our rock costs $8.1 billion per year. Freedom isn’t free.

The generation gap and the education crisis

[ 88 ] September 1, 2011 |

I think one thing that fuels the current dysfunctions of higher education in this country is the extent to which older people — and especially university administrators and faculty — have lost touch with how basic shifts in the American economy have left young people in a vastly worse position than they themselves were at similar points in their lives.

I graduated from college in 1982, in the middle of what would turn out to be the worst post-WWII recession until the current mess. But I had no debt, because I went to an excellent public university that charged very low tuition. This, I realize in retrospect, made a huge difference in regard to my psychic as well as economic health. A few years later I went to a top state law school for not exactly free, but for a low enough price that I could earn the total cost of tuition from summer jobs. Today if I had done exactly the same thing I would be graduating with easily six figures of non-dischargeable educational debt at 7.5% interest.

All this is just part of a bigger picture involving very fraught questions of generational equity (The basic policy of the federal government for most of the past 30 years has been to pass on the costs of everything to people who weren’t yet old enough to vote. The student loan crisis may be a sign that strategy is running up against some limits).

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Why are so many people still applying to law school?

[ 30 ] August 27, 2011 |

omar

I suggest some possible explanations, and also try to break down the question of who should be going to law school, given current circumstances.

Bleg

[ 30 ] August 25, 2011 |

I’m looking for striking recent examples of upper class whining about how it’s hard out there for people living on not that much more than 200K a year, and who are threatening to go Galt should the fruits of their labors be expropriated at an even higher rate than the current confiscatory tax code allows for. I already have this guy in the queue but would much appreciate whatever help the LGM commissars can give me from what you’ve seen during your travels through what must surely be the target-rich environment of the contemporary blogosphere.

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