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Category: General

Friday Links: What is the LEGACY of LGM? Edition

[ 8 ] September 4, 2015 |

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Roger Goodell’s Interpretation of the Rule of Law Gains Influence

[ 15 ] September 4, 2015 |

The rule of law is dead, one random winger asserts, and Hillary Clinton killed it:

What’s truly unsettling is that it has been widely taken as read among both the media and the general public that Mrs. Clinton will likely avoid serious legal consequences for her behavior because the Justice Department is ultimately answerable to President Obama – and Democrats will not use the instruments of government to destroy one of their own. Whether that eventually proves true, the sentiment itself reveals a troubling trend in American politics.

Elizabeth Price Foley heh-indeeds with some typically measured analysis:

The rule of law has been D.O.A. since 2008. It has suffered some injuries and insults prior to the Obama Administration, of course, but somehow it survived because both political parties seemed to care about it. That’s just no longer the case for the majority of Democrats today, who repeatedly vote for party interests over the rule of law.

The only real question is whether, assuming a Republican wins the White House in 2016, can the rule of law be revived through some prolonged CPR? Or are we past the point of no return? Time will tell.

You might think that an assertion that the rule of law was dead because of Hillary Clinton’s DEEPLY TROUBLING EMAIL SCANDAL would be followed with an explanation of how, precisely, Hillary Clinton violated the law. You would be wrong! And, needless to say, the reason no such explanation is forthcoming is because she plainly hasn’t. But, hey, why shouldn’t a vague sense that someone isn’t complying with best practices be plenty good enough to prosecute someone?

Take Your First Indefensible Punishment And Run

[ 30 ] September 4, 2015 |

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Dan Wetzel — who has been consistently excellent on the story — has the definitive Ballghazi analysis:

Oh, Roger had it all in his hands back in May. Kraft magnanimously/foolishly dropped the threat of litigation for the good of the NFL. He accepted the Wells report as fact, indefinitely suspended two locker room attendants and was just going to hope time heals all reputations. It was a terrible move; one Kraft himself has admitted was a mistake and even apologized for.

All Goodell had to do was the gentlemanly thing, the thing Kraft expected, and that was make a global settlement offer that included dropping Brady’s conclusion of guilt and four-game suspension. It would have quickly and effectively ended the quarterback’s appeal and further discovery into the NFL’s conduct in the case.

The NFL machine had won, beaten even the mighty Patriots in a battle that was more about public relations than the actual facts around whether the footballs were tampered with during the AFC championship game. Public perception had been flooded by false, yet highly prejudicial stories that the NFL refused to correct, a narrative that made it almost impossible for the Patriots to fight back.

The Wells report was still believed to be “independent” because at that point no one knew that the NFL’s general counsel had actually edited it, meaning it wasn’t independent at all. Rival owners, fans and players were united.

[…]

That belief framed everything else. New England was running a scheme and the NFL gumshoes would prove it.

Only once they learned otherwise, once they found out that a ball can, quite naturally, be measured at 11.5, or that protocol after that game had two pumps with varying measurements that made the entire experiment worthless, or noted that no one ever cared about ball inflation levels before this and the rulebook was indifferent, or thought hard after none of the equipment guys cracked, or when no firm evidence was uncovered, or when there was nothing tying Brady to the possible deflations that night, they should’ve backed down.

[…]

From the start, almost anyone who was paying attention, anyone who was reading through all the documents and considering all the actions of the league, saw the duplicity involved here was astounding.

You could always keep going back to Square One: Forget about reports of 11 of 12 footballs, the truth was and always has been that the league has no idea if the footballs were even unnaturally deflated in a scandal about unnaturally deflated footballs. Even the Wells report – buried deep, but still – essentially says as much.

The league first decided there was a scandal when there may not have been, then determined there was guilt in said scandal when there may not have been and then worked backward by any means necessary until that work caused a judge to call out the league.

For instance, there is no written notice, or precedent of any kind, that a player can be suspended for being “generally aware” of someone else’s actions. And Goodell couldn’t just arbitrarily make up the corollary that being generally aware of someone else’s equipment violation was akin to getting busted for performance-enhancing drugs.

Per NFL rules, even if Brady was guilty he should have only faced a $5,512 fine, the judge said, not a quarter-season suspension.

[…]

If you paid close enough attention, deflate-gate was a giant circle of nonsense. The NFL banked on almost no one paying close attention.

Yet Goodell, by taking on Brady, all but assured it would wind up on the desk of someone paying extremely close attention: a learned, intelligent, federal judge.

Those interested should definitely read the whole etc.

As Wetzel says, Goodell’s refusal to take far more than he should have gotten is remarkable. Robert Kraft gave him a huge gift by refusing to take Goodell’s massive over-punishment of the Patriots to court. Like Wetzel, I assume that Kraft believed that sacrificing money and the draft pick would lead to Brady’s suspension being eliminated or at least substantially reduced. If he had done that, his use of media lickspittles to create a false narrative at the beginning would, alas, have worked. The voices of people pointing out the lack of evidence that the footballs were underinflated and the contemporaneous triviality of the offense would have been drowned out. Goodell’s maximalist interpretation of his own majestic authoritah would have escaped judicial review until the next time he screwed something up (which, admittedly, probably would have been soon enough.)

But — like Adler and Cannon convincing themselves that the Moops invaded Spain and the evidence for this would surely emerge — Goodell apparently thought that he could snow a federal judge like he could snow Chris Mortensen or Peter King. The leeway the FAA gives arbitrators could have allowed him to get away with it — but he didn’t. Even on his own authoritarian terms, the fact that he thought this risk was worth taking even after he got the Pats to concede far more than they should have was foolish.

It also seems that, even as we approach the 120th anniversary of The Path of the Law, the lessons of legal realism have still not been widely absorbed as they should be. It’s easy to tell yourself a civics-textbook story about how the facts that the NFL’s evidence against Brady was complete shit and the punishment for the offense absurdly disproportionate were technically irrelevant to whether Goodell had the authority to impose the punishment and uphold it on appeal. But, in practice, judges notice this kind of thing, and it matters. To be clear, I’m not saying that Berman would have vacated the punishment if he thought there was no legal basis for it. But normally, the law does give judges some discretion, and this is true here — the deference judges owe arbitrators under the FAA is considerable but not absolute. Moreover, the NFL blundering forward even after its assumptions collapsed gave a judge whose instinct would probably be to throw out a plainly unjust punishment plenty of ammunition. The procedural irregularities that were practically necessitated by the NFL’s lack of any actual case against Brady — Goodell having to hear the appeal of his own ruling because any remotely independent arbitrator would have overturned it with hails of derisive laughter, and Goodell having to limit Brady’s notice, discovery and confrontation rights to minimize publicity about the NFL’s thoroughly malicious and incompetent investigatory and disciplinary processes — gave Berman a sound legal basis for vacating the punishment.

The last piece of the puzzle is trying to figure out why the NFL failed to read the non-exactly-subtle signals Berman was sending them and cut a deal with Brady. Part of this is the rabbit hole problem — someone rationally assessing the strength of their own case would have cut their losses earlier. In a sense, Brady ultimately benefited from Goodell’s arrogant incompetence. Sometimes blundering authoritarianism is something you get away with, and sometimes it’s self-defeating. It’s always gratifying when it turns out to be the latter.

Iran Deal Gets More Supporters

[ 150 ] September 4, 2015 |

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Excellent:

It’s going to be pretty hard for opponents of the Iran Nuclear Deal to claim any momentum from the Schumer defection to their ranks any longer. Today three more previously undecided Democratic senators, Corey Booker, Mark Warner and Heidi Heitkampf, came out in the support of the deal, bringing the number of “nay” votes on the resolution of disapproval to 37. Whoever gets a majority of the seven remaining Democratic undecideds will prevail on a cloture vote against a presumed filibuster.

We’ve had this discussion before, but I still don’t get the progressive consternation surrounding Corey Booker. He’s no Elizabeth Warren, but he’s also not even the worst Democratic senator from New York and New Jersey; basically, his votes will be fine.

GE’s Taft-Hartley Comic, 1947

[ 36 ] September 3, 2015 |

Thanks to Bruce Vail for sending me this hilarious propaganda comic General Electric put out in 1947 during the debate over the Taft-Hartley Act. He asked me to credit the Maryland labor activist Bill Barry in hunting this up and putting it into a PDF file. Enjoy!

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In Other News From the Jerks Who Run American Football

[ 29 ] September 3, 2015 |

The people who run football provide one with such joy.

The NCAA makes Roger Goodell look like a man of principle. As a response to the fear of college football players unionizing, the NCAA’s big schools have begun paying stipends to players so they have live with some level of dignity. Of course the coaches now see opportunities to fine players for whatever they decide is a rule violation. Such as at Virginia Tech:

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From the Deadspin piece linked above:

Just look at that bullshit right here. (And note that the scale roughly indexes the priorities of a meathead college football coach—a dirty locker, for example, is apparently more than three times as bad as being disruptive enough in class for an instructor to report it.):

These are fines being thrown at players who, aside from a piddly shit cost-of-attendance stipend—$3,280 or $3,620, depending on whether a player is from out of state or not—aren’t getting any kind of monetary compensation in exchange for their labor. The Times-Dispatch has another photo, in which fines for “improper equipment” are detailed. A seventh offense would have cost a player $1,600.

Tommy Tuberville, head coach of Cincinnati, is talking the same game as Virginia Tech. This is ridiculous, especially when the players have no means to appeal these fines except for the same people who are fining them. Also, where is the money going? Who is accountable here? In other words, these players need a union.

Speaking of bullshit, let’s go back to our old friends who run the NFL. You know what I hate about the NFL? All the meaningless cross promotions for the military and breast cancer that don’t actually do anything but make the NFL look all awesome and patriotic and pro-woman when it is only interested in making money and has an enormous problem with its violent game bleeding over into widespread domestic abuse.

Deadspin again broke open just how bankrupt all this is. The St. Louis Rams pulled a stunt where they surprised one of their cheerleaders with her husband just returned from the military. Oh, everyone is just so happy, right? The Rams look so good! The NFL looks so patriotic! Well, about that… Turns out the husband was not only serving in the less than dangerous combat zone of Korea but that he is, wait for it, a Busch! And the cheerleader? A former aide to Laura Bush and the daughter of a well-known right-wing Illinois political family. The couple had their wedding ceremony at the Vatican. In other words, this was a stunt that in addition to the usual military pablum was designed to serve powerful and wealthy families of the area. Big deal, right? But on top of it, the cheerleader’s mother is running as a Republican for state representative in Illinois and is using the video of this to promote her political career.

It makes sense that an NFL team would go out of its way to do something special for a member of one of the most powerful families in America instead of, say, a local grunt who’d served in a combat zone, because these reunions really aren’t orchestrated and televised for the benefit of the soldiers and families involved. They are done because cozying up to the military is a good way for the NFL to market itself as a noble civic endeavor while making some extra money, and because the American football-loving public loves a chance to share in a bit of un-earned catharsis—watching two smiling, photogenic soldiers embrace in relief is a great way to forget about all the bodies that have piled up. If a given reunion happens to basically be a viral political ad—and given that Candace Ruocco Valentine is not only the member of two connected families and a former White House intern but has pursued or is pursuing both a JD and a doctorate in public policy analysis, one suspects that this moment may be shared on some campaign page of her own before too long—it’s hard to be too put out. That is, after all, what they all are.

Between this and the Brady case, that’s the NFL for you in a nutshell.

Kentucky’s Petty Orval Faubus Arrested By U.S. Marshalls

[ 233 ] September 3, 2015 |

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A Kentucky judge fails to recognize Kim Davis’s sacred right to get paid while refusing to do her job and obstruct the rights of the citizens she represents based on arbitrary whim:

Federal District Judge David Bunning held Kim Davis, the county clerk who has become a national symbol of anti-gay animus for her resistance to marriage equality, in contempt of court on Thursday. According to Dan Griffin, a reporter for local news station WSAZ, she was led out by U.S. Marshals. The judge reportedly said that financial sanctions were not enough to ensure her compliance with the law.

Yes, that’s the son of deserving Hall of Famer and consummate winger Jim Bunning who sent her to prison. I have no problem with this — she’s violating the law, it will be impossible to remove her from office, and if wingers want to try to turn this extremely unsympathetic figure into a martyr good luck and so what.

The Failure of a Clown

[ 71 ] September 3, 2015 |

Yup:

It’s fitting that Roger Goodell’s biggest failure, the one that could well end up permanently lessening the considerable power he and NFL owners have traditionally held over the NFLPA, was born out of the stupidest scandal in the history of the NFL, and perhaps all of sports. This is precisely the kind of defeat that someone as impotent and hollow-headed as Goodell deserves.

While we’re here, can we stop with the “he always made money for his partners” crap? The NFL was an immensely profitable enterprise before Goodell got there and will be when he leaves. The idea that he’s worth $40 million or so above replacement is a particularly egregious example of the cartel reasoning that results in massively overpaid executives.

…the great Charles Pierce is great on this, needless to say.

Bad News For Slavering Authoritarians

[ 218 ] September 3, 2015 |

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A lot of people resent the Patriots, because they’re really good. It’s nice to think that the Patriots beat the crap out of you every time they play you not because they’re smart enough not to do stuff like trading first round picks for sub-replacement level players at positions of marginal importance, but because they CHEAT. The grossly dishonest leaks that created the Ballghazi tempest in a thimble was hence welcome news for many. The Wells Report, however, confirmed two problems for people excited about the suspension doled out to Tom Brady. First, the NFL’s evidence that Brady was guilty was farcical. And second, even if one assumed that Brady and the Patriots were guilty, all precedent and the substantive importance of the offense plainly mandated a punishment somewhere between a sternly worded letter and a modest fine, not a four game suspension.

What’s a Patriots hater with enough of an authoritarian streak to want them treated with patent unfairness to do? Focus on the broad authority given to Goodell under the collective bargaining agreement. Try to switch the discussion from whether the NFL had adequate evidence or whether the punishment was fair given the offense to the question of whether Goodell had the formal legal authority to impose it. The implication that if a punishment is formally authorized it therefore cannot be arbitrary or capricious or unjustified is transparently wrong and dangerous, of course, but since defending Goodell’s punishment on the merits is impossible, what option do you have?

Well, too bad for authoritarians who retreat to formalism:

Judge Richard M. Berman has nullified the NFL’s four-game suspension of Tom Brady for his role in the Patriots’ ball deflation scandal. Pending an appeal (which is a very real possibility, given the implications for the NFL’s disciplinary process going forward), Brady will start on opening night one week from tonight.

More after I have a chance to read it, but this is excellent news. Even if you hate the Partiots, an employer being stopped from imposing a patently unfair punishment on an employee is a good thing.

…perhaps the most important part of the ruling going forward is Berman’s argument that reliance on the conduct detrimental clause was “legally misplaced.” Goodell and his apologists essentially relied on an argument similar to that used by the plaintiffs in King v. Burwell, using the conduct detrimental clause to override the other collectively bargained procedures and punishments. For good reason, Berman rejected this approach.

You Didn’t Build That Extremely Tacky Thing

[ 74 ] September 3, 2015 |

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If you’d like to be extremely rich, being born extremely rich is highly useful:

“It takes brains to make millions,” according to the slogan of Donald Trump’s board game. “It takes Trump to make billions.” It appears that’s truer than Trump himself might like to admit. A new analysis suggests that Trump would’ve been a billionaire even if he’d never had a career in real estate, and had instead thrown his father’s inheritance into a index fund that tracked the market. His wealth, in other words, isn’t because of his brains. It’s because he’s a Trump.

In an outstanding piece for National Journal, reporter S.V. Dáte notes that in 1974, the real estate empire of Trump’s father, Fred, was worth about $200 million. Trump is one of five siblings, making his stake at that time worth about $40 million. If someone were to invest $40 million in a S&P 500 index in August 1974, reinvest all dividends, not cash out and have to pay capital gains, and pay nothing in investment fees, he’d wind up with about $3.4 billion come August 2015, according to Don’t Quit Your Day Job’s handy S&P calculator. If one factors in dividend taxes and a fee of 0.15 percent — which is triple Vanguard’s actual fee for an exchange-traded S&P 500 fund — the total only falls to $2.3 billion.

It’s hard to nail down Trump’s precise net worth, but Bloomberg currently puts it at $2.9 billion, while Forbes puts it at $4 billion. So he’s worth about as much as he would’ve been if he had taken $40 million from his dad and thrown it into an index fund.

In all fairness, I am compelled to observe that Trump has come out against the carried interest loophole, one of the most indefensible parts of the United States Code.

Area Commenter Places Unwarranted Faith in Lanny Davis

[ 39 ] September 2, 2015 |

Beloved commenter Denverite did not believe that the recent email Lanny Davis sent to Hillary Clinton revealing him a a particularly pathetic drooling lickspittle was real. To his credit, he offered to put a championship bet on the Blue Jays or Seahwaks on my behalf if they turned out to be real. Well, how about that Josh Donaldson?

For future reference, anybody considering making a Lanny Davis wager should understand this: if a story about him sounds too good to be true, it’s probably true. It might be generally sound policy to distrust stories that seem a little too on-the-nose, but Lanny is never not on the nose. He’s a character written by Aaron Sorkin to represent a morally repugnant D.C. kiss-ass but then rejected for inclusion in The Newsroom because he’s too broadly conceived and his dialogue isn’t credible. We veteran Lanny Davis watchers would never make this mistake.

ATI Lockout

[ 3 ] September 2, 2015 |

Last week, I wrote about the ATI lockout of their union mills. Wanted to highlight this issue once again. The United Steelworkers held a big rally in Pittsburgh yesterday to pressure the company to end the lockout and negotiate a fair contract with the union. The lockout and union-busting could devastate the steel towns that rely on the wages of union members for businesses to survive. That’s the theme of this USW-produced video, focusing on a pizza shop owner standing with the USW because it’s in his own financial interest to do so (also because he knows it’s the right thing to do). Check it out.

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