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“Hide, and Then Hinder”

[ 28 ] October 12, 2014 |

Given a choice between basic human rights and the local semi-pro football team, the university and local police chose the latter:

Florida State University officials and Tallahassee police took steps to both hide, and then hinder, the criminal investigation into a rape allegation against the school’s Heisman-trophy winning quarterback Jameis Winston last fall, a FOX Sports investigation has found.

The upshot: University administrators and Winston’s attorney, Tim Jansen, had a head start on the state attorney in Tallahassee responsible for investigating and prosecuting serious crimes. Florida State administrators, for instance, had all the police reports at least four days before State Attorney Willie Meggs was handed the case.

In fairness, Winston wasn’t suspected of a serious offense, like selling his autograph for 20 bucks or something.

Free the Minors!

[ 24 ] October 11, 2014 |


Leave Scorch Aloooooooooooone!

On Thursday, I inadvertently stumbled onto a story that would get national media attention. I drove to the War Memorial world-renowned Glens Falls Civic Center to get tickets to the inaugural opening night game on Saturday, and met the mascot who was on the premises as part of what turned out to be a disastrous PR initiative. In addition to the obvious tastelessness of the film, I’m also offended by the historical revisionism of the backstory. Everyone knows that the name is meant to commemorate Sherman’s marches through Western Canada and the Adirondacks.  Never forget.

I am, however, compelled to note that Scorch not only offered us a friendly greeting but directed me through the labyrinthine set of stairwells to the office where I could buy a ticket-flex pack. So I AM ON TEAM SCORCH.

To make a broader point, my relative excitement about the new AHL team 50 miles away when I only sporadically attend the games of the local AHL team says something about the nature of minor league sports in the US. I like watching live hockey a lot, of course, and if I still lived in Calgary I would see as many games as I could afford to. (Which, given current prices, wouldn’t be very many; it’s good that I’m not moving back, since this blog might have a higher fundraisers-to-posts ratio than Jeff Goldstein’s.) AHL games are cheap and relatively high quality. But as Bill James pointed out a couple decades ago, since they exist purely for developmental purposes and aren’t really allowed to compete properly, it’s impossible to develop any real attachment to the teams. I’m interested to watch Adirondack because I have an attachment to the players through my attachment to the parent club.

For some reason, people are very fond of citing the European relegation system, often using it to make quarter-assed arguments that could be identified as unworkable on the slightest inspection. (Hi Utica — you’re an NHL team now! Let us know how selling what are surely your many skyboxes to all the Fortune 500 companies with head offices in Oneida County is going!) Relegation doesn’t make any sense here, even if you think that its benefits are greater than I do. On the other hand, having actual free minors like European club teams would be a major improvement for North American pro sports. The best players would eventually end up in the major leagues, but minor leagues where teams could actually compete on a season-to-season basis rather than existing solely to serve the goals of another organization would be a lot better.

Vote Suppression And Strategic Voting

[ 6 ] October 10, 2014 |

Hasen on the Supreme Court refusing to intervene in both North Carolina (allowing a vote suppression law to be enforced) and Wisconsin (preventing a vote suppression law from being enforced):

Here is the order, and judged by the dissent of Justice Alito, joined by Scalia and Thomas, the basis was the Purcell objection, the proximity to the upcoming election and the risk of electoral chaos.

Not only did the apparent Kagan/Breyer strategy I explained last night to keep the Chief and Kennedy likely work, here’s something odd: I probably agree with the votes on all three of the decisions of the Court in the election cases: OH, NC, and WI.  Three in a row for me and the Court—unheard of.

If applied fairly, the Purcell principle is one I can live with; last minute changes to the election laws ordered by the courts are problematic. The problems associated Wisconsin are much more severe than they would be with North Carolina, but it’s at least a reasonable outcome, and stopping the vote suppression laws in all cases obviously wouldn’t have had the votes.

This also reinforces my belief that Kagan and Breyer would not have been the swing vote to re-write the Medicaid expansion.

Against Amazon

[ 109 ] October 10, 2014 |

Worthy of discussion.

The Problem is Also the Maximums

[ 16 ] October 9, 2014 |

Andrea Jones has an excellent piece on The War On (Some People Who Use Some) Drugs and mass incarceration. I do have one quibble: the framing suggesting defining the problem with draconian drug laws as “mandatory minimums.” Now, to be clear, the mandatory minimums for drug offenses should be reduced, and as the Supreme Court observed in the context of the death penalty they don’t even really reduce arbitrariness so much as transfer it from judges to the less accountable prosecutor’s office. Nevertheless, reducing mandatory minimums is far from sufficient. Maintaining the judicial discretion to impose lengthy maximum sentences for drug possession will lie around like a loaded weapon, leaving far too many people in prison. The problem with mandatory minimums isn’t the restriction on judicial discretion per se; it’s that people end up in prison who shouldn’t be there. This problem needs to be attacked from both ends.

Don’t Call It Hazing. Call It Sexual Assault.

[ 139 ] October 8, 2014 |

Where a “boys will be boys” mentality leads you:

It came without warning.

It would start with a howling noise from a senior football player at Sayreville War Memorial High School, and then the locker room lights were abruptly shut off.

In the darkness, a freshman football player would be pinned to the locker-room floor, his arms and feet held down by multiple upperclassmen. Then, the victim would be lifted to his feet while a finger was forced into his rectum. Sometimes, the same finger was then shoved into the freshman player’s mouth.

This disturbing hazing within the storied Sayreville football program, as told to NJ Advance Media on Wednesday by the parent of a player in the program, happened almost every day in the locker room this fall, he said.

Is the Supreme Court Refusing to Grant Cert in The Same-Sex Marriage Cases Like Dred Scott? (SPOILER: No.)

[ 81 ] October 8, 2014 |

Matthew Franck offers many reasons for his comparison.  You will be surprised to learn that they are all terrible. Let’s start:

Like Dred Scott, judicial decisions in favor of same-sex marriage needlessly divide the country on an important moral issue about which people differ, and could otherwise debate their differences in the democratic process, on the pretext that there is a genuine constitutional issue in the cases.

Same-sex marriage will an issue that “will divide the country,” at least in the short term, whether the Court intervenes or not. (A Supreme Court ruling that bans on same-sex marriage are constitutional would also be divisive.) Also note that this proves too much, as one could say the same thing about Brown v. Board. Judicial review is a part of the American democratic process, and the same-sex marriage cases present a genuine constitutional issue.

Like Dred Scott, such decisions rest on transparently fallacious legal reasoning with no connection to the Constitution’s words, historic meaning, or underlying principles.

This is absurd, but we’ll return to this in a second.

Like Dred Scott, these decisions rely, in part, on the conflation of the due process clause with a constitutionally ungrounded and so far unexplained power of the judiciary to decide what is “arbitrary” or “reasonable” or “just” in legislation, known by the laughable oxymoron “substantive due process.”

On a minor point, while substantive due process might sound like an oxymoron, it is in fact deeply embedded within American constitutionalism. (Note that McLean, dissenting in Dred Scott, accepted the premise that people had a 5th Amendment right to take their property into the territories; he dissented from the holding that the Missouri Compromise was unconstitutional because “a slave is not property beyond the operation of the local law which makes him such.”) This doesn’t make it inherently correct, but the idea that the concept of “due process of law” guaranteed more than fair procedures was not an opportunistic invention of the slave power (although the application of the principle by the slave power was certainly opportunistic.)

But this argument is misleading in a much more important sense. It’s true that, because of the Windsor holding, the circuit court rulings that state bans on same-sex marriage generally did cite the due process clause. But Windsor was a due process case because of reverse incorporation — that is, the well-settled holding that the equal protection clause of the 14th Amendment binds the federal government through the due process clause of the 5th Amendment just was the due process clause makes most of the Bill of Rights applicable to the states. It is much more accurate, although inconvenient for Franck’s silly Dred Scott analogy, to describe these cases as equal protection cases, not substantive due process cases.

At this point, the absurdity of Franck’s assertion that the circuit court holdings have “no connection to the Constitution’s words” becomes readily apparent. If a state classification that excludes a group of persons who have historically been subject to invidious discrimination has “no connection” to the explicit constitutional requirement that states shall not deny anyone the “equal protection of the laws,” it’s not clear what content the equal protection clause is supposed to have.

Like Dred Scott, decisions for same-sex marriage rely on a false anthropology that drives a political decision made by judges. In Dred Scott it was the false idea that some human beings can own other human beings, and that a democratic people cannot say otherwise. In the same-sex marriage rulings it is the false idea that men can marry men, and women can marry women, and that democratic peoples cannot say otherwise.

This is obviously offensive for the reasons explained in the original Millhiser post. In addition, Franck’s assertion that same-sex marriage is a “false idea” will be useful to those who need an example of what “begging the question” means.

Skipping some pure gibberish about how the decisions will impair the ability of people to do something called “living the truth” about same-sex marriage (that apparently goes beyond merely being free to choose not to marry a same-sex partner and to state your views that same-sex marriages are morally objectionable), we get this:

Like Dred Scott, same-sex marriage rulings, for all the reasons above, amount to a comprehensive threat to republican government, raising the question Lincoln asked in his First Inaugural Address, whether the American people are entitled to govern themselves, or must surrender to government by an “eminent tribunal” of judicial despots.

Republican government, as it exists in the United States, permits legislative enactments to be reviewed by the judiciary. One can fairly argue about whether this is a good thing, but it is not obviously inconsistent with democratic government. And, of course, Franck does not believe this either; after all, he “agree[d] with the dissenters” in NFIB v. Sebelius, making him by his own lights an enemy of democracy and the contemporary equivalent of Roger Taney.

If Franck wants a recent decision that actually uses Dred Scott‘s constitutional reasoning (as opposed to being like Dred Scott because every exercise of judicial review one doesn’t like is like Dred Scott), I have one for him


[ 76 ] October 8, 2014 |

For all the abuse Yost got for the wildcard game, what Matt Williams did tonight was indeed far worse. In fairness, nobody could have predicted that a managerial protege of Kirk Gibson would turn out to be shaky.

And now we have a Giants/Cardinals NLCS, which for neutral observers must be by far the most dreary matchup. Well, you can take the Expos out of Montreal but…

It’s Like, How Much More Ron Fournier Could This Be?

[ 53 ] October 7, 2014 |

We will never reach peak High Broderism:

Bipartisanship is here…if you want it! Should we get two houses of Republican overlords in January, their failure to cooperate with the White House will be because of Barack Obama’s failure to lead, with leadership. One day we will get a president truly willing to Bully Pulpit the Overton Window Under the Bus.


This Has Been Straightforward Answers To Idiotic Questions

[ 313 ] October 7, 2014 |

Via Jeb, a HOT TAKE from Tim Teeman:

But my most immediate thought was: Why take pictures of yourselves having sex, or naked, in the first place, which you then choose to share electronically? In doing those things, haven’t you already compromised your privacy long before a pervy hacker has figured out a way to get their grubby mitts on your pictures?


Being naked in your home does not constitute consent for people outside your home to look at you. Storing nude pictures on a home computer or password protected cloud does not constitute consent for other people to look at them. Appearing in revealing clothing onstage does not constitute consent for people to look at you offstage. Walking around on the street with a wallet does not constitute consent for someone to take your money. The fact that the last point is not in dispute but the first three are might just have something to do with the gender makeup of the typical targets, doncha think?

If there’s anything worse than a transparently dumb argument, it’s a transparently dumb argument that Ann Althouse already made nearly a decade ago.

consent, how does it work?

“Things Are Going To Hell Faster Than When That Son-of-a-bitch Roosevelt Was In Charge.”

[ 96 ] October 7, 2014 |

Syndicated columnist William F. George is very excited about a Republican hack about to be trounced in a Senate election. Why? His exciting old ideas:

Because Bell speaks incessantly about the dangers of fiat money and the wisdom of the gold standard, some people dismiss him as a one-issue candidate whose issue is an anachronism. He calls this “chronological snobbery”: The gold standard is a bad idea because it is an old idea and because the economics profession opposes it. Besides, his supposed single issue (actually, he has many) is the declining value of money, which affects everything.

His audiences, he says, are not just disgusted by today’s feeble economy, they are puzzled by it. So he explains that Wall Street “has been having a party” paid for by near-zero interest rates, which have had their intended effect of driving liquidity into stocks in search of higher yields, a bonanza for the 10 percent of Americans who own 80 percent of the directly owned stocks. This “wealth effect” is supposed to prompt spending and investing that will trickle down to the 90 percent. Meanwhile, near-zero interest rates punish savers.

Bell wants to alert the nation before the government again has to pay 4 percent interest on its borrowing, thereby adding, he estimates, $400 billion to the deficit. He is running because “something substantive ought to be offered before the 2016 cycle.”

Shorter Jeff Bell: “After a period of extended unemployment, government policy should make unemployment worse while punishing debtors. We therefore need interest rates to go up before interest rates go up — it’s totally going to happen any year now — and add to the deficit. GOLD!!!!!!!!! I am not a crackpot.”

Kramer: “Hmm! Oh! Yeah. I’ll tell you who is an attractive man; George Will.”

Jerry: “Really!”

Kramer: “Yeah! He has clean looks, scrubbed and shampooed and….”

Elaine: “He’s smart….”

Kramer: “No, no I don’t find him all that bright.”

Deciding to Let Others Decide on SSM

[ 73 ] October 6, 2014 |

If you choose not to decide, a Canadian philosopher once observed, you still have made a choice. When it comes to the Supreme Court and same-sex marriage, it’s at least a second-best-case scenario.

…Lithwick is right on what the Court should have done.

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