Law, politics, pop culture, sports, and a touch of Oregon.
About this site
Comments When you submit a comment, it won't be published until approved. This is to cut down on comment spam. However, I will also edit or block comments that are profane or offensive.
No Legal Advice Although I may from time to time discuss legal issues on this blog, nothing that I post should be construed as legal advice, nor as creating an attorney-client relationship between you and me. In fact, there's a good chance I'm not licensed to practice law wherever you are. If you need legal advice, you should consult an attorney licensed in your jurisdiction.
Personal View This blog is neither affiliated with my employer nor hosted by it. It is maintained through TypePad, and I pay the hosting fees. Nothing that is posted here should be construed as anything other than the views of the particular author of the post.
USC running back Reggie Bush is the subject of a Pac-10 investigation into whether he violated NCAA rules prohibiting players from getting special benefits from agents. Bush's parents lived in a home owned by a sports agent, who was allegedly promised $4500 a month in rent (yikes!). According to the agent, Bush's parents never paid the rent, saying that Bush would pay the agent back after signing with a professional team.
Let me emphasize that the investigation is just beginning, so (a) we don't know if the sports agent's allegations are true, and (b) even if they are true, we don't know if there is enough of a connection to Bush that it would be a violation of NCAA rules.
What I found interesting is that if Bush did violate the NCAA rules, USC may forfeit all the games from last season that Bush played in, which in turn would obviously mean that USC would forfeit its 2005 Pac-10 title. Would it be fair to punish the entire team for the infraction of a single player? After all, the criminal justice system does not punish the parents of convicted serial killers, or the friends of a rapist, or whatever. It's true that in some cases, often white collar cases, the punishment of a business owner or a corporation may have the indirect effect of harming innocent employees; for example, when Arthur Andersen was convicted, it collapsed and suddenly about 100,000 people were unemployed. Similarly, when people are incarcerated, their families suffer, especially if the person being imprisoned was the primary breadwinner.
Still, those instances are ones where the system does not intend to punish those innocent persons; and the harms are a consequence of punishment meted out to the wrongdoer. In the NCAA example, however, the sanction is intended to punish the team directly (I think).
Here's why it doesn't seem unreasonable to me to punish the team. First, forfeiting games is not the same thing as incarceration, or even fines. It's not punishment in the criminal sense. Second, football is a team sport, and part of why we should celebrate it as part of our collegiate system is that it builds camraderies and teamwork. Therefore, letting teams know that if a player on the team cheats, the entire will suffer should have a deterrent effect that causes teams to want to police themselves. Even if Bush doesn't really care about his teammates, some of them will be turning pro with him, others in the next few years, and he'll have to face them as teammates or opponents.
I've sort of followed the Duke lacrosse scandal, mostly through cable TV shows like "Rita Crosby Live" and others, but I haven't spent a lot of time thinking about it. In part, that's because the whole thing seems like a mess. What I've read (mostly in Newsweek) about the lacrosse team suggests that some (many?) of the players are overprivileged thugs, but at the same time, the prosecutor really seems to have bolluxed things up. I mean, why did he make a big deal about the DNA tests before the results came out, only to end up with egg on his face when there were no matches to any of the suspects? Sure, you can say that the alleged rapist(s) may have used condoms, but don't you think it would have been wise to have said that beforehand? Come to think of it, wouldn't it have been wise to have said nothing at all to the media?
But then again, the defense also seems to be reaching. This news report has defense lawyers seeking a hearing "to 'determine if the complaining witness is even credible enough to provide reliable testimony.' " I haven't looked at North Carolina law, but this seems like quite a stretch to me. If the federal rules of evidence were applicable, I suppose that Rule 104(a) allows the judge to determine if a person is qualified to be a witness, and therefore one might argue that whether the witness is credible is part of that qualification. But generally speaking, credibility determinations are left to the jury, and even if the defense has evidence to cast doubt on the accuser's claim, I find it hard to believe that a judge would toss the case merely because the accuser would be subject to vigorous cross-examination.
Go to this website to register a vote for your choice of the "24" season 5 DVD artwork. There are five choices that you have to rank; for me, anything with Audrey Raines on it went to the bottom of the list. You also get to vote on whether Fox should move to slimcases (yes!), and as a bonus, you get a $5 coupon from the Fox DVD store (though I have no idea if the prices are comparable to amazon.com).
Speaking of "24," some spoilers for last night's (4/24) episode:
Was anyone else disappointed that Jack didn't totally work Christopher Henderson over? And when Audrey Raines couldn't shoot Henderson to death, I expected her at least to shoot him in both knees to slow him down.
I've been remiss in taking so long to point out a new blog, Truth About False Confessions, by an expert in the field of false confessions. There are interesting posts on the Moussaoui case and the Duke lacrosse team rape scandal, among others. Check it out!
Today is the last day of classes of the spring semester, although my last day of teaching was Wednesday. I've finished writing and debugging my exam, which isn't until next Friday, so I have about a week of uncommitted time. Some of that will go toward The Haunted Air, a "Repairman Jack" novel. If you like thrillers tinged with a hint of the supernatural, with a very libertarian protagonist, you should give the Repairman Jack series a try. I actually haven't read the first book, The Tomb, but that's because the author (F. Paul Wilson) first wrote in 1984 and didn't come back to the character until 1998, and since then he's been working on revising The Tomb to bring it into the 21st century in terms of pop culture references, etc.
I might add that I normally don't like supernatural horror books. I think I can count on one hand the number of true horror novels that I've read and reasonably enjoyed: Falling Angel (which was made into the movie Angel Heart); Dracula (sort of); Night Shift; and that may be it. (I don't consider Dean Koontz to be true horror, but if you do, then I've enjoyed a lot of books during the stretch from Strangers to Seize the Night). The Repairman Jack books are more supernatural in the way that "The X-Files" was, so it doesn't seem to bother me the way that, say, The Exorcist would.
The other paper is Coercion and Terrorism Prosecutions in the Shadow of Military Detentions, which looks at the problems inherent when the Executive Branch leverages its power to detain persons as "enemy combatants" in order to extract guilty pleas in criminal prosecutions. This is a problem that has been brought to the forefront with the government's recent decision to transfer Jose Padilla out of military detention into a federal court to face criminal charges. What if Padilla is willing to plead guilty just to avoid being sent back to military detention (where he has spent almost four years)? Especially if the government "hints" that this will be his fate if he doesn't "cooperate"? In my paper, I consider the possibility that terrorism defendants will plead guilty to avoid such consequences even if they aren't explicitly threatened, and propose a framework for allaying such fears.
I can't really say that things are back to normal in Iowa City a week after that tornado blew through town, because my drive home takes me along the tornado's path, and there are still houses that are cordoned off by yellow tape, yet to be torn down; and other buildings whose windows are still covered by plywood, or plastic.
On the other hand, the traffic lights on Burlington, which had been ripped off by the storm, have been replaced and work at all but one intersection; that one was still, as of this morning, being manned by police officers.
Because Iowa City is a small college town, the scale of the impact may not seem that terribly significant, in terms of damage. But if you were to scale it to the city of Los Angeles, which is about 60 times bigger in population, it would be something like almost $1 billion in damage.
Anyway, I've decided that, having endured earthquakes and tornados, that the latter are worse. I suppose having a little bit of time (thank goodness for the city's alert sirens) to get to the basement is a good thing. But having to wait down there while hearing that the twister is headed your way is not such a good feeling. At least with the earthquake, it happens, it lasts for about 45 seconds, and it's over. (Well, except for those aftershock thingies.)
How much trouble would the country be in if Chloe O'Brien ever went to work for the terrorists? I mean, she escapes from CTU detention with a laptop and proceeds to hack into CTU's computers using just a phone line. . . .
Instead of these ridiculously elaborate plots, the bad guys should just hire her to crash the Internet. I don't think even Jack Bauer could save us from that.
In a somewhat misleadingly headlined story, AP reports that the Supreme Court denied cert. in a case involving two Chinese Muslims detained at Guantanamo Bay. I say "somewhat misleadingly" because the story opens by saying that the Court "rejected" the appeal. In a way, that's correct, as the petitioners did not get the relief that they sought, but of course, denial of cert. carries no legal significance. (See Brown v. Allen, 344 U.S. 443 (1953)). Later on, the story does note correctly that the Court declined to hear the case . . . .
Anyway, when I first read this story, it sounded outrageous to me: the military had already determined through its Combatant Status Review Tribunal process that the two men were not "enemy combatants." As such, they should not have been detained military at all. Yet, the Bush Administration was refusing to release them.
But it turns out that it's a trickier situation -- the government wants to release the men, but it has nowhere to send them. If they're sent back to China, they will likely be tortured and killed, and no other country is willing to take them. That means the government's option is, until it successfully negotiates with another country to take them, release the men into the United States or continue to detain them.
In Shaughnessy v. Mezei, 345 U.S. 206 (1953), the Court considered a similar situation, where an alien was detained on Ellis Island while seeking entry to the country. The government denied him permission to enter, but no other country would take him, so he remained detained on Ellis Island (which was considered under a judicial fiction to be "outside" the U.S. so that Mezei lacked any constitutional rights). The Court upheld Mezei's permanent exclusion from the country:
That exclusion by the United States plus other nations' inhospitality results in present hardship cannot be ignored. But, the times being what they are, Congress may well have felt that
other countries ought not shift the onus to us; that an alien in
respondent's position is no more ours than theirs. Whatever our
individual estimate of that policy and the fears on which it rests,
respondent's right to enter the United States depends on the
congressional will, and courts cannot substitute their judgment for the
Mezei is an undeniably harsh case, and it is pilloried in immigration law casebooks. Still, it is a key component of the Plenary Power Doctrine, which states that Congress has virtually unreviewable power to decide matters of immigration with respect to aliens outside the country. Despite the consistent criticism of this doctrine (see, for example, Gerald Neuman's Strangers to the Constitution), the Court has continued to adhere to it.
On the other hand, there is a crucial difference between Mezei and the two detainees, which is that Mezei voluntarily left his home country to try to come to the United States. The detainees, on the other hand, were forcibly removed from Afghanistan and placed into their current state of limbo because of the actions of the United States. I wouldn't be necessarily keen on admitting them to the United States, but I could see how a court could distinguish Mezei and conclude that, by authorizing the President to take the actions that he did, Congress bears some responsibility for ameliorating the situation that the detainees now find themselves in.
It's less than an hour after the expiration of a tornado warning that sent us scurrying to our basement (during my baby's bedtime, no less), and I still find it hard to believe that just eight hours ago, it was a beautiful spring day, sunny, 80 degrees, and my Con Law students and I were playing softball against Professor Erin Buzuvis and her students. . . .
Regular readers will recall that last year, my section challenged Prof. Buzuvis', engaged in a whole bunch of trash-talking (after reassuring me that Prof. Buzuvis' students were lame), and proceeded to get absolutely annihilated. I told this story to this year's group, and they were perhaps more circumspect. Still, we got disturbing reports that Professor Buzuvis and her students were actually practicing!!!
Well, we met on the field today, with an agreed upon 7 inning limit. Reader Tom Snee reprised his role as the field umpire. After 6 1/2 innings, we (the home team) were ahead 5-4. (5-4? What kind of softball score is that? It turns out that this was one of the best games of softball I've ever pitched. Too bad we were pitching to our own teams!) However, we still had the field reserved for 45 more minutes, so Prof. Buzuvis, Umpire Snee, and I agreed to play two more innings.
Prof. Buzuvis' students proceeded to score three runs in the top of the 8th inning, and we went down meekly 1-2-3. Heading into the bottom of the 9th inning, we were still down 7-5. My students were wondering why we'd agreed to extend the game; we would've won already, they complained.
The first two batters grounded out and popped out . . . and then we snatched victory from the jaws of defeat, with a string of hits that eventually plated the winning run (scoring on an overthrow, how delicious).
Most of my students and I headed to Dairy Queen to celebrate our victory. Little did I know that four hours later, my wife and baby and I would be down in our basement, listening to the radio report about a tornado touching down in southwest Iowa City, heading east (i.e., toward us). . . .
Apparently, much of downtown Iowa City is a mess right now, exacerbated by people who are inexplicably driving out to take a look at how much damage there is!
I'm shocked at how close the tornado came to our house. One of the main east-west thoroughfares, to which our street connects, was blasted in a stretch less than a mile away from us. Huge trees were uprooted (one blocking an adjacent street from the thoroughfare), and there were lots of what I assume to be insurance adjusters milling about.
Closer to downtown, the traffic lights along another major thoroughfare were ripped off, replaced for the moment by temporary stop signs that created a long traffic jam at 10:30 am. One car parked outside a parking garage looked like it had been crushed by something from above. Yet, other parts of the city look untouched.
This is, of course, nothing compared to the devastation that Hurricane Katrina leveled on New Orleans, but I did see a National Guard person directing traffic, and the American Red Cross is in town. The most amazing thing, though, is that as we were huddled in the basement last night, listening to the radio, there were reports that some University of Iowa students were standing out in the open, watching the weather and tornados!!!