Eugene Volokh's Blog, page 2744
July 22, 2011
"Let 'em Play": Concluding Thoughts
I started on Monday with a puzzle – what might be said in favor of enforcing at least some rules of sports less strictly at crunch time? – and tried to develop a solution. That solution turned out to be two solutions, or two variants of a single solution.
All competitive sports, I have claimed, share a core interest that the outcomes of contests reward competitors' relative excellence in the performance of the sport's fundamental athletic tests. To further this interest, each sport has reasons – weighty but not decisive – (1) not to enforce penalties on infractions when, for contextual reasons, the penalty would be unusually over-compensatory, and (2) to sometimes disregard the rule-like form or surface of some norms in favor of the standard that underlies it.
These arguments are tentative and partial, only first steps toward a solution to the puzzle. But whether they ultimately justify the temporally variant enforcement of particular rules of particular sports, all things considered, is not greatly important to me. Think of this study as a search for what Robert Nozick called a philosophical explanation: not a defense of the thesis that temporal variance in sports is optimal, but an account of how that could be.
Philosophical explanations are not always the right goal. Often we want to know what some agent should do. In this case, however, I'm satisfied to identify factors and analytical devices that might prove useful for theoretical projects across reaches of law and sports.
For example, the analyses here might helpfully illuminate the lost chance doctrine in torts; the granting of equitable relief, near contest's end, from rules governing municipal and corporate elections, or appellate litigation; the difference between genuine "jurisdictional rules" and mere claim-processing rules; and possibly much else.
Those are just promissory notes at this point. So I'll conclude by offering one final non-obvious lesson – albeit one for gamewrights, not for legislators or judges. It concerns soccer.
Here are two much-noted problems with the beautiful game: there is too much diving, and refs make too many errors. The latter is partly a consequence of the former, but it's also a consequence of there being only a single referee and FIFA's refusal to introduce any form of instant replay review. (Plug: my thoughts on instant replay are here.)
While these are familiar criticisms, I maintain that soccer harbors a third defect, one that works as a multiplier, exacerbating the first two problems and exacerbated by the fact (not itself a problem) of low scoring. That problem concerns the red card – in particular that it results in ejection of a player for the remainder of the match without allowance given for substitution.
This is an unusual complaint. But if it's a surprising charge, its connection to the issue of temporal variance might seem obscure.
Here's the connection. A central assumption undergirding the argument that basketball referees should "let 'em play" is that, presumptively, the competitive impact of a penalty should bear a stable relationship, over the course of a contest, to the competitive impact of the infraction that the penalty penalizes. We saw, however, that (holding closeness of contest constant) a contest event has a greater impact on outcome the closer it occurs toward contest's end. Non-enforcement of the penalty at crunch time aims to rectify this imbalance.
I'm not going to suggest that soccer's red card should be brandished more reluctantly at crunch time. Unfortunately, that's not because soccer ensures that the red card exerts a constant competitive effect regardless of when issued. It's because red cards exert a greater competitive effect the earlier they are awarded. Because a red card results in ejection of the offending player and a ban on his being replaced, it entails that the offender's team play short for the remainder of the match (or until the opposition is red-carded too).
So the more time remaining at point of infraction, the greater the penalty. In effect, a red card awarded at minute 15 reads "play shorthanded for 75 minutes" whereas one awarded for the very same infraction at minute 85 reads "play shorthanded for 5 minutes." The red card thus violates the sensible principle of game design that, presumptively, the same infraction should call forth the same penalty regardless of the time of occurrence.
This disparity in the effective magnitude of the red card sanction should occasion little concern if the optimal penalty for committing a red-card offense (serious fouls, spitting, handling the ball to deny an obvious goal-scoring opportunity, etc.) were to be shorthanded for 90 minutes. In that event, the sanction would never be too high, and the fact that it would generally be too low would be unavoidable. But that's not plausible.
To be sure, what would be an optimal period of shorthandedness is extraordinarily difficult to determine. But the basic parameters are plain: Because a red card is awarded for a serious offense, the offending team should incur a significant penalty, one that meaningfully affects its prospects for victory. Yet we don't want the penalty to be virtually outcome-determinative – all the more so given the prospect (exacerbated by the prevalence of diving, by the presence of a lone referee, and by the absence of replay) that some red cards will be issued in error.
Nobody would seriously entertain a proposal to replace the penalty of ejection with the award of two goals to the opposing team. Given soccer's very low average scores and margins of victory, a sanction of such magnitude would threaten to convert the sport into an extended exercise in penalty avoidance. Similarly, we might expect that sending off a player in, say, the 10th minute is apt to have such a significant impact on game outcome as to contravene the competitive desideratum.
The obvious solution is for soccer to unlink the penalty of ejection from the penalty of shorthandedness. Soccer already decouples the consequences of a red card for the player involved from the consequences for his team: The player is sent off for the remainder of the match and is disqualified for the next game too, but the team plays shorthanded only for the remainder of that game, not for the next.
Soccer's governing bodies should consider taking this decoupling further. That the offending player may not return does not entail that his team should play shorthanded for the rest of the contest regardless of when the foul occurred. Many sports, not only hockey, allow a team to substitute for an ejected player after some period of penalty time. Perhaps soccer should follow their lead.
To require a team to play shorthanded for nearly a full game is draconian even when the offense really warranted dismissal. But it's heartbreaking when—as happens disappointingly often in this otherwise beautiful game—the red card should never have been issued.
Figuring out what would be an appropriate period of shorthandedness would prove challenging. I'll leave that to the econometricians. I claim only that the current system that makes the competitive impact of a red card so radically dependent on its time of issuance is unlikely to dominate the alternatives, and therefore that further investigation is warranted. More to the point: that we should think harder about soccer's red-card system is only one among the many and diverse lessons to be learned by reflecting on the puzzle of temporal variance in sport.
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Summer Reading Recommendation:
I'm just finishing an extraordinary novel, "Independent People" by Halldor Laxness. Laxness (1902 — 1998), whom you've surely never heard of (I certainly hadn't till I began this book), was Icelandic, and won the Nobel Prize in 1955. [That's not, mind you, why I picked the book up; a lot of second-rate and even third-rate authors have picked up the Nobel Prize (Sully Prudhomme, Pearl Buck, John Galsworthy, Dario Fo), and an equally astonishing number of the greatest writers of the 20th century somehow missed the prize (Vladimir Nabokov, Joyce, Kafka, Proust . . . ) that the designation doesn't mean a great deal. But I did notice, on the book jacket, that it had a long and laudatory blurb by Brad Leithauser, who's one of my personal favorites, so I thought I should give it a try]
The book is set in Iceland in the early part of the 20th century, and revolves around Bjartur Jonsson, owner of a small sheep farm out on the icelandic moors, and his family. Even if the characters were not drawn with astonishing vividness, the pictures he draws of what life was like in such a place — the stink and the smell of it — are quite unforgettable. And the characters and the relationships among them — Bjartur, his children and wives, the neighboring farmers, and especially his daughter, Asta Sollilja — are deeply profound and very, very moving. Highly recommended.
[and PS — the wikipedia entry for this book gets it all wrong — it reads a lot like a 12-grader's term paper — so don't let that dissuade you]
July 21, 2011
"Fear of a Muslim America"
An excellent and characteristically thoughtful and balanced Reason article by Cathy Young; I highly recommend it.
Humor in Legal Writing
Several people asked what I thought about humor in legal writing, a topic I touch on in my Academic Legal Writing book. Here's my thinking on the subject:
1. Humor can be valuable: It can keep the reader interested, put the reader in a good mood, and make the reader feel something of a psychological link to the author. Humor in article titles can also help the article be more eye-catching and more memorable. I still remember an article title I saw in the early 1990s, "One Hundred Years of Privacy"; this both communicated the article's essence (a look back on the privacy tort a century after Warren and Brandeis first proposed it), and humorously alluded to the novel "One Hundred Years of Solitude."
Another article was called "A RFRA Runs Through It," echoing the title of the movie "A River Runs Through It." People who are familiar with religious freedom law know that RFRA is the Religious Freedom Restoration Act, commonly pronounced "riff-rah," not that different from "river." The article's thesis was that after the enactment of the federal RFRA, the entire U.S. Code should be read as if RFRA had amended each statute, and changed the policy balance struck by the drafters of each statute — hence RFRA runs through the entire Code, so the joke is apt. Plus the article was published in a symposium conducted by the Montana Law Review, and the movie was set in Montana. Cute.
2. At the same time, you should be very careful about trying to be funny in your legal writing, for several reasons.
a. We amateur comedians notoriously overestimate how funny our jokes are.
b. Even an amusing gag distracts the reader from your main point. To be effective, the joke must be interesting and memorable enough that its value overcomes the distraction.
c. Some writers find a joke so appealing that they use it even when it doesn't quite capture the point they are trying to make, or when it is surplus that doesn't add anything valuable. Better use serious words that mean exactly what you need to say, no more and no less, than a joke that means something slightly different, or that takes up words that could be used for something substantive. (Humorous subtitles are common offenders here: They often add nothing besides the joke, and the joke's place can often be effectively taken by a subtitle that actually communicates something useful about the piece.)
d. With some topics (abortion, the death penalty, and the like), some readers will find any humor to be jarring. For instance, "Creole and Unusual Punishment: A Tenth Anniversary Examination of Louisiana's Capital Rape Statute" — a real title — contains a pun that's amusing in the abstract; but, when applied to the death penalty, the joke might alienate more readers than it amuses. It's hard to know for sure, but you should at least consider the risk.
e. Sarcasm is especially risky, because it can make your work seem disrespectful, and can make readers feel that you're trying to persuade them with cheap shots rather than sober argument.
f. Being funny in print is hard, but being funny under stress and time pressure is harder still. So if you're doing a rush motion or brief, or a law review write-on submission, and won't have the luxury of soberly reflecting on your draft a couple of days later, avoid attempts at humor.
3. Finally, if you do use humor, be sure you review the joke on several occasions to make sure that it really works, and ask friends whether they agree. If you're in doubt, err on the side of sticking with the serious.
$1000 + Attorney Fees (Only for Plaintiffs) for "Intentionally Distract[ing] or Attempt[ing] to Distract a Bicyclist Because of, in Whole or in Part, the Bicyclist's Status as a Bicyclist"
That's what a new Los Angeles ordinance provides, in part. The ordinance also applies to behavior that's clearly improper — physical assaults and intentional injuries (and attempts), threats to physically injure, as well as intentionally forcing or trying to force bicyclists off the road (all "because of, in whole or in part, the bicyclist's status as a bicyclist"). Such behavior is already civilly actionable, if it causes damage. And likely all of it can lead to a ticket, if a police officer sees it. (The ordinance does not create new grounds for tickets or other prosecutions.)
But providing for a minimum of $1000 in liability even in the absence of damages (and treble damages when actual damages are present), as well as for reasonable attorneys' fees and costs for prevailing plaintiffs but not prevailing defendants, does change matters quite a bit. A bicyclist can threaten to sue a driver for what the bicyclist perceives as an intentional distraction (or even an attempt at such distraction), and the driver will face strong pressure to settle: If the bicyclist persuades the court, by a preponderance of the evidence, that the driver was guilty, the driver would be on the hook for $1000 + attorney fees. If the bicyclist fails to persuade the court, the bicyclist wouldn't have to pay the driver's fees (at least unless a court finds the bicyclist's claim was utterly frivolous).
And that's especially so if the bicyclist was riding alongside a friend who would take the bicyclist's side. Plus if some lawyers start to specialize in such matters, maybe because of their sympathies with fellow bicyclists plus an opportunity to get a modest fee, the asymmetry in plaintiffs' favor would likely get even stronger. (I assume here that the plaintiffs would be able to track down the driver's identity through the license plate number; this will cost money, whether for a records search or even a subpoena, if necessary, but that will just drive up the amount that the defendant might be on the hook for.)
I realize that bicyclists are in a great deal of peril on the roads, that a few drivers do deliberately try to injure bicyclists, and that more drivers act in ways that risk harming bicyclists. But my sense is that this ordinance is not a fair way of dealing with that problem.
Thanks to Dan Gifford for the pointer.
Criminal Law Professor (Mostly) Exonerated in Widener Law Disciplinary Case
According to this press release, the university disciplinary committee empaneled to review charges that Widener law prof Lawrence Connell had engaged in racial and sexual discrimination and harassment in how he taught his criminal law class has handed down its ruling. The committee ruled in Connell's favor on all of the charges relating to his classroom conduct and teaching. The committee did find that Connell engaged in "retaliation," however, which appears to refer to some kind of retaliation against the two students who complained in response to their allegations of wrongdoing.
"Let 'em Play" — Day 4: Of Rules and Standards
Recall Tuesday's contention: Competitive sports go better, all else equal, insofar as contest outcomes reflect the competitors' relative excellence in executing the particular athletic virtues that the sport is centrally designed to showcase, develop and reward. Call this "the competitive desideratum." If something like this is so, then we should identify the athletic challenges that the rules governing tennis serves are designed to hone and test.
To a first approximation, the challenge is to strike the ball with power and accuracy into a specified space. Yet serving while standing at the net would not conform to the athletic challenge that tennis service is meant to present. So a refinement is necessary. Perhaps this: the challenge is to strike the ball into a precisely defined space from a precisely defined distance.
Notice that if this is the best understanding of the athletic challenge presented by serving in tennis, then temporally variant enforcement of foot faults would not serve the competitive desideratum. If it's constitutive of a core athletic challenge in tennis to hit the serve without touching the line, then to forgive a server's having stepped on the line would frustrate that athletic ideal and would contravene the competitive desideratum.
But perhaps that is not quite the athletic challenge that the service rules embody. Perhaps the challenge is better formulated as the ability to serve the ball into a precisely defined space from a generally defined distance. That is, notwithstanding that the formal rules specify both the starting point and the landing space with precision, the underlying athletic challenge that the rules codify involves a precise target but a general launching site.
I am tempted to describe the challenge this way: "get the ball in here from around there." That puts things too loosely, but it conveys that the sport might care more about precision in the placement of the served ball than precision in the placement of the server's body.
Arguments could be mustered to bolster this interpretation of the core athletic challenge in serving. But I concede that it's debatable. Let's move on because my jurisprudential ambitions are served by exploring what might follow if this is the better conception of the athletic challenge; it's not essential to establish that this is the better interpretation of tennis.
Importantly, that the foot fault rule is written in hard-edged terms does not disprove that the real norm the rule implements is a standard that prohibits servers from going "too far" over the line, or that prohibits "unreasonable" encroachments. Even if the true norm is a standard, it doesn't follow that the formal norm should assume the same shape.
Because the factors that bear on reasonableness would be debatable in every case, considerations like predictability, certainty, and finality all forcefully favor implementing this norm by means of a rule rather than by means of a standard. This is Rules vs. Standards 101.
In short, I am suggesting a critical asymmetry. The written criteria of valid service that govern the landing of the ball and the placement of the server's feet are, in both cases, rules rather than standards. But they are formulated as rules for different reasons.
The former is a rule because it reflects an aspect of the underlying athletic challenge that is itself sharp-edged and rule-like: get the ball in the pre-defined space. Tennis rules require that the ball go into the service court because that's the nature of the challenge of serving. It is how tennis instantiates one of the most commonly tested skills across all of sports: target-hitting. Horseshoes and curling notwithstanding, precision is generally part of the nature of targeting.
Although a target's contours may be arbitrary, the demand that competitors hit the target and not merely come close is not arbitrary, for the rule is designed to test and reward that particular class of physical excellences (needed by, e.g., archers and riflemen) involving accuracy and precision in limb-eye coordination. The rules of tennis require that, for a serve to be valid, the ball must land within the defined service court because that is the nature of this particular athletic challenge.
In contrast, the formal norm governing foot placement is rule-like not standard-like, I suggest, because, although the aspect of the underlying athletic challenge that it captures is standard-like (start behind the line and don't go unreasonably over it), we have good institutional reasons to codify it in bright-line fashion.
To coin terms, we might say that that portion of the power-conferring rule of tennis service that requires the serve to land in the service court is a "true rule," whereas that portion of the rule that requires the server not to step on the baseline is a "rulified standard." It is often thought that norms are standard-like in what we might call their "natural" state, and that they become rules, when they do, in response to institutional pressures. I am suggesting that this is true of some norms but not all. Some of the rules we come across are rules naturally.
Granting me all this, does it follow that line judges should enforce the rule governing faults as though a foot fault could occur only when the server steps unreasonably far over the line? No. A rulified standard is, after rulification, a rule, not a standard. To routinely pierce the rule and apply the underlying or animating standard would defeat the purposes served by having rulified it.
But that we must not routinely pierce a rulified standard does not mean that we must never pierce it. Whether to disregard the rule's form in favor of its underlying considerations is always at least askable with regard to rulified standards. That is a central upshot of the distinction between rulified standards and true rules.
At least two additional requirements must be satisfied to pierce a rulified standard: (1) that enforcing the rule as a rule would produce unusually high costs; and (2) that disregarding the rule's form on this occasion would incur low costs on the dimensions, such as predictability and the like, that warranted its rulification.
These two additional conditions are probably satisfied by foot faults in crunch time. Enforcing the rule as a rule is costly because doing so allows the foot fault to unduly impact the match outcome. That is, it undermines the "competitive desideratum." And the costs of piercing the rule are low because nonconformity with the rule is hidden, given that tennis does not employ its Hawk-Eye electronic system to judge foot faults.
From the perspective of optimal game design, that might be a good thing. Rule makers who want to preserve rule-enforcers' discretion to sometimes apply the standard that animates a rulified standard should arrange things so that non-compliance with the rule isn't apparent. Transparency is not always a virtue.
Of course, even if the ethos of tennis should permit line judges to assess crunch-time foot faults against the underlying standard of reasonableness, not against the nominal rule, that does not fully resolve the Serena Williams case. Her foot fault would have run afoul even of the standard if, for example, her transgression was substantial or repeated. I think it wasn't, but needn't argue about that here.
In sum, my analysis is doubly contingent: if the foot fault rule is a rulified standard not a true rule, and if Williams complied with the underlying standard-like norm governing service, we'd have promising support for McEnroe's contention: the line judge should have cut Williams some slack.
Hard Money, Peer-to-Peer Loans
The Wall Street Journal reports on the niche, but growing, market for so-called "hard money" loans. Good reporting by Dawn Wotapka on an undercurrent in the credit markets. Hard money loans feature borrowers with credit problems that cause them to be shunned by banks; very high interest rates; short term; substantial if perhaps illiquid security; and "peer-to-peer," non-institutional lending arranged by a loan broker:
Across the nation, a number of mom-and-pop investors are pulling money out of their retirement accounts and safe, but low-yielding, savings to take on the risk of becoming "hard-money" mortgage lenders, who charge high interest rates to borrowers who have been rejected by traditional banks.
Hard-money mortgage lending represents just a tiny slice of the mortgage market, although the activity is growing rapidly. Guy D. Cecala, publisher of trade publication Inside Mortgage Finance, estimates hard-money loans will account for about 1% of the 5.5 million mortgages expected to be originated this year. But he says activity in that sector is up sharply from a few years ago, when very few hard-money loans were originated.
On the lender side, there is a question as to whether the "mom-and-pop" lenders — ranging, in the article, from young professionals to elderly retirees, but all chasing yield in a drastic way — are adequately pricing their risks. Perhaps they are sufficiently overpricing the loans in a niche market that they are reasonably well covered across a relatively small run of loans, and perhaps the lack of diversification forces them to concentrate sufficiently hard on the borrower to compensate. Still, there's a question, particularly if the peer-to-peer model spreads, via individual and small investor seminars and the Web, whether credit standards are maintained, or whether it goes from being a profitable but self-limiting niche market into something that looks more like subprime. Since lenders are dealing with borrowers with credit problems to start with, that's automatically an issue even if, within that subset, there are borrowers with special issues that can't be efficiently dealt with by financial institutions, but which individually tailored lending might address.
On the borrower side, there are also cautionary issues. One is the interest rate, of course. At 12–15% rates, the activity supported by the lending must be able to support a short loan term, whether that is repayment, over and done, or some form of rollover into conventional bank financing. This puts the borrower into the position of so much Wall Street financing in recent years; financing at very short terms, for economic activities requiring much longer horizons. The article suggests that default is rare, in large part because the lending is substantially collateralized by property for which the borrower would truly hate to lose the equity.
My cautious sense is that there is a niche market that can and should be filled, but that it is one that has special conditions for lenders and borrowers. The starting question, for both sides, is why the bank won't make the loan and see whether the problem is the borrower or the transaction and monitoring costs to the bank as a lender. In many ways, this resembles developing country microfinance. The one-day loan to the open-air fruit seller carries an apparently astronomical interest rate, but it is not significant on an overnight basis. The problem, rather, is what happens if something goes wrong and the fruit is not sold and the loan can't be repaid as it comes due:
Typically, hard-money lenders are matched with borrowers through loan brokers, who make a commission on each deal. Most loans are short-term, lasting a few months or as long as several years. Some are set up with low monthly payments and a balloon payment due at the end of the loan term.
When the loan comes due, borrowers either refinance into a conventional mortgage, flip the property to pay off the loan or, if those measure fail, extend the hard-money loan. "The hard-money loan is an interim loan," says Sophie Lapointe, a co-owner of Five Star Mortgage in Las Vegas, which doesn't do hard-money loans. Lenders say that defaults are low, in part because borrowers have plenty of equity tied up in the properties themselves.
Moreover, peer-to-peer lending is gaining traction in development contexts — Kiva, for example — via the internet, but with many unanswered regulatory and risk management questions, as my colleague Anna Gelpern and NYU's Kevin Davis discuss in this article. One of the broader economic questions, relevant to both the development context and the growth of peer-to-peer lending in the US is whether it is a long-term and reasonably efficient way of filling a credit niche using new technologies such as the web to reduce the monitoring costs incurred by an individual lender.
On this niche-filling model, new technologies allow for direct monitoring by an individual lender of an individual loan in what amounts to a genuine innovation; the institutional lender would have to substitute indirect mechanisms for dealing with the risk, such as essentially unmonitored diversification of loan portfolios, which are less efficient because they average out risk, rather than addressing it head-on. Or whether, instead, these are loans that in a more normal credit environment would be filled institutionally. And which are creating risks for the "peer" lenders that are not being accurately addressed because the lenders are so focused on chasing yield.
Review of the Supreme Court's Criminal Cases: DC Bar Event On August 3
Here's one for our DC-based readers: On Wednesday, August 3, from noon to 1:30pm, I'm going to be co-presenting a discussion of the criminal law and procedure cases in the recently-completed Supreme Court Term for the DC Bar Criminal Law and Individual Rights Section. I'll be joined by Dan Schweitzer, Supreme Court Counsel for the National Association of Attorneys General. The event will be at the moot court room at GW Law School at 20th and H St, NW, and it's a brown-bag event (so bring some lunch). If you're a DC Bar member, or a law student in DC for the summer who is interested in criminal law, it should be worth attending. Registration information is available here.
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